EXCEPTIONAL CHILD EDUCATION - Jefferson County · PDF fileSUPERINTENDENT’S MESSAGE The Jefferson County Public School District (JCPS) is dedicated to a set of core beliefs. These

EXCEPTIONAL CHILD EDUCATION

PROCEDURES

2008

JEFFERSON COUNTY PUBLIC SCHOOLS

Dr. Sheldon H. Berman, Superintendent

BOARD OF EDUCATION

Joseph L. Hardesty, Chairman Stephen P. Imhoff, Vice-Chairman

Linda Duncan Ann V. Elmore

Carol Ann Haddad Larry Hujo

Debbie Wesslund

Jefferson County Public Schools Exceptional Child Education VanHoose Education Center

P.O. Box 34020 Louisville, KY 40232-4020

Equal Opportunity/Affirmative Action Employer Offering Equal Educational Opportunities

www.jcpsky.net

http://www.jcpsky.net/�

SUPERINTENDENT’S MESSAGE The Jefferson County Public School District (JCPS) is dedicated to a set of core beliefs. These beliefs are the foundation for preparing our students to achieve their goals, follow their dreams, and create a more just society. As an outgrowth of our belief system, we as district staff must create caring and culturally responsive classroom communities and must provide high-quality, personalized instruction that challenges and engages all students. It is our responsibility to ensure that all students have equitable access to a consistent, world-class, inquiry-based curriculum. The district’s structures, policies, and practices are designed to reflect a commitment to our core beliefs. The Exceptional Child Education Procedures manual translates this commitment into the specific steps that employees follow in order to effect systematic adherence to adopted procedural practices regarding students with special needs. The Exceptional Child Education Procedures manual delineates the procedures adopted by the district to implement the Kentucky Administrative Regulations and represents the efforts put forth by the district to be in complete compliance with those mandates. Research-based instructional strategies and the provision of a safe, respectful, and inclusive learning environment are integral facets of these procedures. These processes and practices are established to meet the needs of our students and are intended to foster consistent, effective service delivery. As a JCPS employee, you play a significant role in implementing these procedures. We thank you for taking the time to become knowledgeable with the procedures; for your diligence and efficiency in implementing them; and for your dedication to improving educational, social, and behavioral outcomes for every student. _____________________________________ Sheldon H. Berman, Ed.D. Superintendent Jefferson County Public Schools

INTRODUCTION The Individuals with Disabilities Education Act (IDEA), as amended by the Individuals with Disabilities Education Improvement Act of 2004, has provided a policy framework to ensure that a Free Appropriate Public Education (FAPE) is available to all children and youth with disabilities. In addition, the Commonwealth of Kentucky has clarified federal requirements through the Kentucky Administrative Regulations (KARs). Kentucky’s school districts must act within the parameters of the KARs to provide appropriate special education and related services to children and youth with disabilities. Revisions to the Exceptional Child Education Procedures manual became necessary following the revision of the KARs in 2007 to reflect changes in the federal laws governing the education of children and youth with disabilities. This manual has been revised to provide clear guidelines for procedures that apply to children and youth with disabilities and to provide support for staff in the district’s effort to comply with all applicable regulations. Training will be made available annually to provide staff with the opportunity to become effective in the use of this manual.

Table of Contents Chapter 1 Definitions (707 KAR 1:002) ...................................................................................................1 Section I Definitions ......................................................................................................1 Chapter 2 Free Appropriate Public Education (707 KAR 1:290)..............................................................1 Section I Free Appropriate Public Education.................................................................1 No Cost to Parent............................................................................................2 Section II ARC Placement of the Child or Youth in Private School or Agency

Other Than the District ...................................................................................3 Other State Agencies Responsible for Education ...........................................5 Payment for Services and Contract Provisions...............................................5 Section III Residential Program........................................................................................6 Section IV Proper Functioning of Hearing Aids...............................................................7 Section V Program Options.............................................................................................7 Section VI Nonacademic Services....................................................................................7 Section VII Physical Education..........................................................................................8

Section VIII Assistive Technology......................................................................................8 Section IX Extended School Year Services ......................................................................9 ARC Analysis of ESY Criteria .......................................................................9 Consideration of ESY Services for Three- (3-) Year Old

Children in Transition...................................................................................10 Section X Prohibition of Mandatory Medication ..........................................................11 Chapter 3 Child Find, Evaluation, and Reevaluation (707 KAR 1:300) ...................................................1 Section I Child Find System ..........................................................................................1 Child Find Activities.......................................................................................1 Use of Screening Information.........................................................................3 Use of Information Obtained Through Intake Procedures..............................3 Early-Intervention Transition Planning ..........................................................3 Section II Child Tracking ................................................................................................4 Section III Coordinated Early Intervening System...........................................................5 Section IV Referral System ..............................................................................................6 ARC Use of Referral Information ..................................................................7 ARC Action ....................................................................................................7 Failure of Referral to Support a Suspected Disability ....................................8 Determination That a Disability Is Suspected ................................................8 Section V Evaluation/Reevaluation.................................................................................9 Initial Evaluation ............................................................................................9 Reevaluation .................................................................................................10 ARC Meeting to Discuss Need for Reevaluation .........................................12 Section VI Test Criteria ..................................................................................................14 Criteria and Responsibilities of Evaluation Personnel..................................16 Disproportionality.........................................................................................17 Written Evaluation Report ............................................................................18 Section VII Summary of Academic Achievement and Functional Performance.............19 Appendix A Child Find Notice .........................................................................................21 Chapter 4 Determination Of Eligibility (707 KAR 1:310)........................................................................1

Section I ARC Process .................................................................................................. 1 Sufficient/Insufficient Evaluation Information .............................................. 3 Section II Determination of Eligibility ........................................................................... 3 Step 1: Presence of a Disability...................................................................... 3 Step 2: Adverse Effect of Disability on Educational Performance ................ 4 Step 3: Determinant Factors ........................................................................... 4 Section III Categories of Disabilities ............................................................................... 6 Autism ............................................................................................................ 6 Deaf-Blindness ............................................................................................... 7 Development Delay........................................................................................ 7 Emotional–Behavioral Disability ................................................................... 8 Hearing Impairment ..................................................................................... 10 Mental Disability.......................................................................................... 11 Multiple Disabilities ..................................................................................... 12 Other Health Impaired.................................................................................. 13 Orthopedic Impairment or Physically Disabled ........................................... 14 Specific Learning Disabilities ...................................................................... 14 Speech or Language Impairment.................................................................. 18 Traumatic Brain Injury................................................................................. 19 Visual Impairment........................................................................................ 20 Chapter 5 Individual Education Program (707 KAR 1:320) .................................................................... 1 Section I Individual Education Programs ...................................................................... 1

Accessibility of IEP to Staff Members Who Are Responsible for Implementation............................................................................................... 2

Section II Admissions and Release Committee Meetings .............................................. 2 Actions Prior to Meeting to Develop an IEP.................................................. 4 Notice of ARC Meetings................................................................................ 4 ARC Meeting Discussions and Documentation of Proposed or Refused

Actions ........................................................................................................... 5 ARC Decision-Making Process...................................................................... 5 ARC Not Required to Meet for Minor Changes to IEP ................................. 6 Section III ARC Membership .......................................................................................... 6 Dismissal of Attendance................................................................................. 7 Parents of the Child or Youth......................................................................... 8 ARC Chairperson/District Representative ..................................................... 8 Exceptional Child Education Teacher ............................................................ 9 Regular Education Program Teacher ............................................................. 9 Person Who Can Interpret Evaluation Results, Including Instructional

Implications, If Appropriate ......................................................................... 10 Related Services Personnel, If Appropriate ................................................. 10 Student With a Disability, If Appropriate .................................................... 11 Other Individuals Who Are Knowledgeable About the Child or Youth ...... 11 Agency Representatives Involved in Transition Planning, If Appropriate .. 12 Section IV Parent Participation ...................................................................................... 12 Methods to Ensure Parent Participation ....................................................... 12 Conducting the ARC Meeting Without a Parent.......................................... 13 Changing the IEP When Parents Do Not Attend an ARC Meeting ............. 13 Section V Contents of the Individual Education Program ............................................ 14 ARC Considerations in IEP Development ................................................... 14 Present Levels of Academic Achievement and Functional Performance..... 15

Developing Measurable Academic and Functional Annual Goals ...............15 Benchmarks or Short-Term Objectives ........................................................16 Measuring Student Progress .........................................................................17 Specially Designed Instruction, Supplementary Aids and Services,

Program Modifications, and Supports for School Personnel........................17 Related Services............................................................................................18 Participation in Statewide or Districtwide Assessments/Alternate Portfolios .. ......................................................................................................................18 Participation in Least Restrictive Environment ............................................19 Specifying Projected Dates for Initiation, Duration, Location and

Frequency of Services and Modifications.....................................................19 Monitoring of Progress and Reporting to Parents.........................................20 Section VI Transition Services .......................................................................................20 Preschool Transition .....................................................................................20 Post-School Transition..................................................................................21

Section VII Services for Transfer Students ......................................................................23 Provision of FAPE for a Transfer Student Within Kentucky .......................23

Temporary Placement ...................................................................................24 Students Who Transfer During the Evaluation Process................................26 Section VIII Individual Education Program Accountability .............................................26 Good-Faith Efforts........................................................................................26 Inclusion in Statewide Assessments .............................................................26 Parents Retain All Due-Process Rights ........................................................26 Section IX Placement at Kentucky School for the Blind and Kentucky School for

the Deaf.........................................................................................................27 Initial and Continuing Placement at KSB or KSD........................................27 Records .........................................................................................................27 Chapter 6 Placement Decisions (707 KAR 1:350)....................................................................................1 Section I Placement Decisions .......................................................................................1 Participation With Children and Youth Who Are Not Disabled ....................1 Continuum of Alternative Placements ............................................................2 Placement Considerations...............................................................................2 ARC Determination of Placement ..................................................................4 Transfer From Another District or Educational Agency ................................5 Section II Change in Placement/Services........................................................................5 Release From Special Education and Related Services ..................................6 Transfer and Withdrawal From School Prior to Program Completion...........7 Graduating With a Diploma............................................................................7 Completion of Nondiploma Program (Certificate of Attainment)..................8 Release Due to Aging Out ..............................................................................8 Summary of Performance ...............................................................................9 Length of School Day .....................................................................................9 Section III Caseload and Class Size for Exceptional Child Education Classrooms .......10 Appendix A Caseload and Class Size Per 707 KAR 1:350...............................................13 Chapter 7 Procedural Safeguards and State Complaint Procedures (707 KAR 1:340, Sections 1-12) .....1 Section I Notice – Parent Participation in Meetings ......................................................1 Written Notice of Admissions and Release Committee Meetings..................1 Inspection and Review of Records .................................................................2 Conversation Without a Parent Present ..........................................................3

Section II Independent Educational Evaluation.............................................................. 3 Parental Right to an Independent Educational Evaluation ............................. 3 Public Expense ............................................................................................... 4 Private Expense (Parent) ................................................................................ 4 Section III Notice of Procedural Safeguards (Parent Rights)........................................... 4 Section IV Written Notice of Proposed or Refused Action (Meeting Summary) ............ 5 Section V Parental Consent............................................................................................. 6 Consent for Initial Evaluation ........................................................................ 7 Consent When the Child Is in the Custody of the State or Foster Child ........ 7 Consent for Provision of Special Education and Related Services ................ 8 Consent for Reevaluation ............................................................................... 9 Denial or Revocation of Parental consent ...................................................... 9 Section VI Representation of Children and Youth......................................................... 10 Determination of Representation.................................................................. 10 Biological or Adoptive Parents .................................................................... 11 Legal Guardian............................................................................................. 11 Person Acting as a Parent............................................................................. 12

Commitment to Commonwealth of Kentucky Cabinet for Family and Children or Kentucky Department of Juvenile Justice................................. 12

Foster Parent................................................................................................. 13 Emancipation................................................................................................ 13 Surrogate Parent ........................................................................................... 14 Section VII State Complaint Procedures ......................................................................... 17 Right to File a Complaint ............................................................................. 17 Procedures for Addressing the Complaint.................................................... 17 Right to Appeal a Written Decision From KDE/DECS ............................... 18 Implementation of Final Decision................................................................ 18 Section VIII Mediation Procedures................................................................................... 18 Right to Mediation ....................................................................................... 18 Requirements of Mediation .......................................................................... 19 Dispute Resolution ....................................................................................... 19 A Resolution to the Dispute ......................................................................... 20 Failure to Hold a Meeting ............................................................................ 20 Timeline of the Due-Process Hearing .......................................................... 21 Section IX Due-Process Hearing Procedures ................................................................. 21 Hearing Requests.......................................................................................... 21 Appeal of Decision....................................................................................... 22 Student Status During Pendency of Judicial Proceedings............................ 23 Chapter 8 Discipline Procedures (707 KAR 1:340, Sections 13-17)........................................................ 1 Section I Discipline Procedures..................................................................................... 1 Student Behavior ............................................................................................ 1 Suspensions for 5 Days or Less in a School Year .......................................... 1 Notice Prior to a Disciplinary ARC Meeting ................................................. 2 Suspensions of More Than 5 Cumulative Days In a School Year ................. 2 Functional Behavior Assessment and Behavior Intervention Plan ................ 2 Manifestation Determination.......................................................................... 3 Provision of Educational Services.................................................................. 4 Placement in an Alternative Educational School or Program ........................ 5

Changes in Placement to an Interim Alternative Educational Setting for Violations Involving Weapons, Illegal Drugs, and Controlled Substances.......................................................................................................6

Section II Appeals from Placement Decisions ................................................................7 Section III Basis of Knowledge Regarding Students Not Yet Eligible ............................8 Evaluation Requests During Disciplinary Proceedings ..................................9 Section IV Reporting to Law Enforcement Agencies.......................................................9 Reporting a Crime...........................................................................................9 Transmission of Records ..............................................................................10 Chapter 9 Confidentiality of Information (707 KAR 1:360).....................................................................1 Section I Access Rights..................................................................................................1 Inspection and Review of Education Records ...............................................1 Access to Education Records..........................................................................1 Explanation and Interpretation of Records .....................................................2 Education Records ..........................................................................................2 Test Protocols and Raw Data..........................................................................2 Private Notes...................................................................................................3 Representative of Parent to Inspect and Review Records ..............................3 Section II Record of Disclosure (Access) .......................................................................3 Section III Records on More Than One Child or Youth...................................................4 Section IV Lists of Types and Locations of Records........................................................4 Section V Fees .................................................................................................................4 Section VI Amendment of Records at Parent’s Request ..................................................5 Section VII Opportunity for a Hearing...............................................................................5 Section VIII Consent ...........................................................................................................6 Written Parental Consent ................................................................................6 Disclosure Without Consent ...........................................................................7 Other Conditions for Release of Personally Identifiable Information ............9 Parent Refusal to Release Information ...........................................................9 Section IX Safeguards.....................................................................................................10 Record Security ............................................................................................10 Training Regarding Confidentiality Issues ...................................................10 Listing of Persons Who May Have Access...................................................11 Section X Destruction of Records .................................................................................11 Section XI Rights of the Child or Youth.........................................................................12 Section XII Records Regarding Migratory Children with Disabilities ............................12 Appendix A Student Education Records Request ............................................................13 Appendix B Record of Disclosure ....................................................................................17 Appendix C Authorization to Disclose/Request Information ...........................................21 Appendix D Access List — ECE Student Records ...........................................................25 Chapter 10 Children with Disabilities Who Are Enrolled in Private School (707 KAR 1:370) .................1 Section I Child Find for Children with Disabilities Who Have Been Enrolled by Their

Parents in Private School ................................................................................1 Section II Parental Consent for Evaluation .....................................................................1 Section III Determination of Services for Parentally Placed Private School

Children ..........................................................................................................2 Determination of Proportionate Amount of Spending....................................2 Consultation With Representatives of Private Schools Regarding Services ..3 Section IV Service Provided Under Services Plans..........................................................4

Section V Location of Services....................................................................................... 6 Section VI Due-Process Procedures ................................................................................. 6 Parents ............................................................................................................ 6 Private School May Submit Complaint.......................................................... 6 Section VII Restrictions on Serving Nonpublic Students.................................................. 7 Section VIII Children with Disabilities Enrolled in Private Schools by Their Parents

when FAPE Is an Issue................................................................................... 8

1: Definitions 1

CHAPTER 1 DEFINITIONS

707 KAR 1:002 SECTION I DEFINITIONS Admissions and Release Committee (ARC) means a group of individuals described in 707 KAR 1:320 Section 3 that is responsible for developing, reviewing, or revising an Individual Education Program (IEP) for a child with a disability. Adverse effect means that the progress of the child is impeded by the disability to the extent that the educational performance is significantly and consistently below the level of similar-age peers. 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 the functional capabilities of a child with a disability. The term does not mean a medical device that is surgically implanted, or the replacement of such a device. Assistive technology service means any service that directly assists a child with a disability in the selection, acquisition, or use of an assistive technology device. This term shall include:

A. The evaluation of the needs of a child with a disability, including a functional evaluation of the child in the child’s customary environment;

B. Purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices by children with disabilities;

C. Selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing assistive technology devices;

D. Coordinating and using other therapies, interventions, or services with assistive technology devices, like those associated with existing education and rehabilitation plans and programs;

E. Training or technical assistance for a child with a disability or, if appropriate, that child's family; and

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

Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age three (3) that adversely affects a child’s educational performance. 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 will not apply if a child’s educational performance is adversely affected primarily because the child has an emotional-behavior disability. Business day means Monday through Friday except for federal and state holidays, unless a holiday

2 1: Definitions

is specifically included in the designation of business day as in 707 KAR 1:370 Section 1. Caseload for special classes means the number of children with disabilities assigned to a teacher of exceptional children for the purpose of providing individualized special education and related services in a special class setting. Change of placement because of disciplinary removals means a change of placement occurs if:

A. The removal is for more than ten (10) consecutive schools days; or B. The child has been subjected to a series of removals that constitute a pattern (which is

determined on a case-by-case basis) because: 1. The series of removals total more than 10 school days in a school year; 2. The child’s behavior is substantially similar to the child’s behavior in previous

incidents that resulted in the series of removals; and 3. Of additional factors including the length of each removal, the total amount of

time the child has been removed, and the proximity of the removals to one another.

Child with a disability means a child evaluated in accordance with 707 KAR 1:300, as meeting the criteria listed in the definitions in this section for autism, deaf-blindness, developmental delay, emotional-behavior disability, hearing impairment, mental disability, multiple disabilities, orthopedic impairment, other health impairment, specific learning disability, speech or language impairment, traumatic brain injury, or visual impairment which has an adverse effect on the child’s educational performance and who, as a result, needs special education and related services. Class size for resource classes means the number of children with disabilities assigned to a teacher of exceptional children per period, block, or the specified length of the time set by the individual school. Collaboration means, for purposes of determining class size in 707 KAR 1:350, Section 2, a teacher of exceptional children works with children with disabilities in the regular classroom to provide special education and related services. Complaint means a written allegation that a local education agency (LEA) has violated a requirement of the Individuals with Disabilities Education Act (IDEA) or an implementing administrative regulation and the facts on which the statement is based. Compliance means the obligations of state or federal requirements are met. Compliance monitoring report means a written description of the findings of an investigation, like on-site monitoring, citing each requirement found in noncompliance. Consent means:

A. A parent has been fully informed of all information relevant to the activity for which consent is sought in his native language or other mode of communication;

1: Definitions 3

B. A parent understands and agrees in writing to the carrying out of the activity for which his consent is sought; and the consent describes the activity and lists the records, if any, that will be released and to whom;

C. A parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at any time; and,

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

Controlled substance means a drug or other substance identified under 21 U.S.C. Section 812(c). Core academic subjects means English, reading or language arts, mathematics, science, foreign language, civics and government, economics, arts, history, and geography. Corrective action plan (CAP) means a written improvement plan describing activities and timelines, with persons responsible for implementation, developed to correct identified areas of noncompliance, including directives from the Kentucky Department of Education (KDE) specifying actions to be taken to fulfill a legal obligation. Course of study means a multi-year description of coursework from the student’s current school year to the anticipated exit year designed to achieve the student’s desired post-school goals. Day means calendar day, unless otherwise indicated as business day or school day. Deaf-Blindness means concomitant hearing and visual impairments that have an adverse effect on the child’s educational performance, the combination of which causes severe communication and other developmental and educational needs that cannot be accommodated in special education programs solely for children with deafness or children with blindness, unless supplementary assistance is provided to address educational needs resulting from the two (2) disabilities. Developmental delay (DD) means that a child within the ages of three (3) through eight (8) has not acquired skills or achieved commensurate with recognized performance expectations for his or her age in one (1) or more of the following developmental areas: cognition, communication, motor development, social-emotional development, or self-help/adaptive behavior. Developmental delay includes a child who demonstrates a measurable, verifiable discrepancy between expected performance for the child’s chronological age and current level of performance. The discrepancy will be documented by:

A. Scores of two (2) standard deviations or more below the mean in one (1) of the areas listed above as obtained using norm-referenced instruments and procedures;

B. Scores of one and one-half standard deviations below the mean in two (2) or more of the areas listed above using norm-referenced instruments and procedures; or

C. The professional judgment of the ARC that there is a significant atypical quality or pattern of development. Professional judgment will be used only where normed scores are inconclusive and the ARC documents in a written report the reasons for concluding that a child has a developmental delay.

4 1: Definitions

Education Records means records as defined in the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. Section 1232(g). Emotional-behavioral disability (EBD) means that a child, when provided with interventions to meet instructional and social-emotional needs, continues to exhibit one or more of the following, when compared to the child’s peer and cultural reference groups, across settings, over a long period of time, and to a marked degree:

A. Severe deficits in social competence or appropriate behavior which cause an inability to build or maintain satisfactory interpersonal relationships with adults or peers;

B. Severe deficits in academic performance which are not commensurate with the student’s ability level and are not solely a result of intellectual, sensory, or other health factors but are related to the child’s social-emotional problem;

C. A general pervasive mood of unhappiness or depression; or D. A tendency to develop physical symptoms or fears associated with personal or school

problems. This term does not apply to children who display isolated (not necessarily one), inappropriate behaviors that are the result of willful, intentional, or wanton actions unless it is determined through the evaluations process that the child does have an emotional-behavioral disability. Enforcement means the KDE takes steps to ensure federal and state special education requirements are implemented. Extended school year services means specially designed instruction and related services that are provided to a child with a disability beyond the normal school year in accordance with the child’s IEP at no cost to the parents. Free appropriate public education (FAPE) means special education and related services that:

A. Are provided at public expense, under public supervision and direction, and without charge;

B. Meet the standards of the KDE included in 707 KAR Chapter 1 and the Program of Studies, 704 KAR 3:303, as appropriate;

C. Include preschool, elementary school, or secondary school education in the state; and D. Are provided in conformity with an IEP that meets the requirements of 707 KAR 1:320.

Functional means activities and skills that are not considered academic or related to a child’s academic achievement as measured on statewide assessments pursuant to 703 KAR Chapter 5. Hearing impairment (sometimes referred to as deaf or hard of hearing) means a hearing loss that:

A. May be mild to profound, unilateral or bilateral, permanent or fluctuating, and is determined by: 1. An average pure tone hearing loss in the speech range (500 Hz, 1000 Hz, and 2000

Hz) of at least 25 dB in the better ear;

1: Definitions 5

2. An average pure tone hearing loss in the high-frequency range (2000 Hz, 4000 Hz, and 6000 Hz) of at least 45 dB in the better ear; or

3. An average pure-tone unilateral hearing loss in the speech range (500 Hz, 1000 Hz, and 2000 Hz) of at least 60dB in the impaired ear; and

B. Results in difficulty identifying linguistic information through hearing; and C. Has an adverse effect on the child’s educational performance.

High school diploma means the student has completed the required course of study with the minimum number of credit hours as required by 704 KAR 3:305 and any applicable local district requirements. “High school diploma” does not mean a certificate of attainment or a GED. Home school means for purposes of 707 KAR Chapter 1 only, a private school primarily conducted in one’s residence. IDEA means the Individuals with Disabilities Education Act, 20 U.S.C. Section 1400 through 1450, as amended. Independent education evaluation means an evaluation conducted by a qualified examiner who is not employed by the LEA responsible for the education of the child in question. Individual Education Program (IEP) means a written statement for a child with a disability that is developed, reviewed, and revised in accordance with 707 KAR 1:320. Interpreting services means, with respect to children who are deaf or hard of hearing, oral transliteration services, cued language transliteration services, sign language transliteration and interpreting services, and transcription services such as communication access real-time translation (CART) C-Print and TypeWell and special interpreting services for children who are deaf-blind. Local educational agency (LEA) means a public local board of education or other legally constituted public authority that has either administrative control or direction of public elementary or secondary schools in a school district or other political subdivision of the Commonwealth. LEA also means any other public institution or agency, including the Kentucky School for the Blind (KSB) and the Kentucky School for the Deaf (KSD), that is charged by state statute with the responsibility of providing educational services to children with disabilities. Mental disability means that a child has one (1) of the following:

A. A mild mental disability (MMD) in which: 1. Cognitive functioning is at least two (2) but no more than three (3) standard

deviations below the mean; 2. Adaptive behavior deficit is at least two (2) standard deviations below the

mean; 3. A severe deficit exists in overall academic performance including acquisition,

retention, and application of knowledge; and 4. Is typically manifested during the developmental period; or

B. A functional mental disability (FMD) in which:

6 1: Definitions

1. Cognitive functioning is at least three (3) or more standard deviations below the mean;

2. Adaptive behavior deficits are at least three (3) or more standard deviations below the mean;

3. A severe deficit exists in overall academic performance including acquisition, retention, and application of knowledge; and

4. Is typically manifested during the developmental period.

Monitoring means the gathering and reviewing of information to determine if a project or program meets state and IDEA requirements, including the implementation of corrective action plans. Multiple disabilities (MD) means concomitant impairments that have an adverse effect on the child’s educational performance (e.g., mental disability-blindness, mental disability-orthopedic impairment, etc.), the combination of which causes severe educational needs that cannot be accommodated in special education programs solely for one (1) of the impairments. Multiple disabilities does not mean deaf-blindness nor does it mean a speech or language impairment in combination with another category of disability. Native language means, if used in reference to an individual of limited English proficiency, the following:

A. The language normally used by that individual or, in the case of a child, the language normally used by the parents of the child;

B. In all direct contact with a child (including evaluation of the child), the language normally used by the child in the home or learning environment; or

C. For an individual with deafness or blindness or for an individual with no written language, the mode of communication that is normally used by the individual (e.g., sign language, Braille, or oral communication).

Orthopedic impairment (OI) means a severe orthopedic impairment that adversely affects a child’s educational performance. The term includes an impairment caused by a congenital anomaly (e.g., clubfoot, absence of some member, etc.), an impairment caused by disease (e.g., poliomyelitis, bone tuberculosis, etc), and an impairment from another cause (e.g., cerebral palsy, amputations, and fractures or burns that causes contractures). Other health impairment (OHI) means having limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that:

A. Is due to a chronic or acute health problem, (e.g., acquired immune deficiency syndrome (AIDS), asthma, attention deficit disorder (ADD) or attention deficit hyperactivity disorder (ADHD), diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, Tourette syndrome, or tuberculosis); and

B. Adversely affects a child’s educational performance.

1: Definitions 7

Parent means:

A. A biological or adoptive parent of a child; B. A guardian generally authorized to act as the child’s parent, or authorized to make

educational decisions for the child, but not the state if the child is a ward of the state; C. A person acting in the place of a biological or adoptive parent (e.g., a grandparent or

stepparent or other relative) with whom the child lives or a person who is legally responsible for the child’s welfare;

D. A foster parent if the biological or adoptive parents’ authority to make educational decisions on the child’s behalf has been extinguished an the foster parent has an ongoing, long-term parental relationship with the child, is willing to make the educational decisions required of parents under 707 KAR Chapter 1, and has no interest that would conflict with the interests of the child;

E. A foster parent, if the biological or adoptive parents’ grants authority in writing for the foster parent to make educational decisions on the child’s behalf, and the foster parent is willing to make the educational decisions required of a parent under 707 KAR Chapter 1, and has no interest that would conflict with the interests of the child; or

F. A surrogate parent who has been appointed in accordance with 707 KAR 1:340, Section 6.

Participating agency means a state or local agency other than the LEA that is financially and legally responsible for providing transition services to a child with a disability. Personally identifiable information means information that includes the name of the child, the child’s parent, or other family member; the address of the child, a personal identifier, including the child’s social security number or student number, or a list of personal characteristics or other information that would make it possible to identify the child with reasonable certainty. Postsecondary goals mean those goals that a student hopes to achieve after leaving high school. Private school children with disabilities means children with disabilities enrolled by their parents in private elementary or secondary schools as defined by IDEA regulations, 34 CFR Part 300.13 and 300.36 and not children with disabilities enrolled in private schools upon referral by a LEA. Public expense means that the LEA either pays for the full cost of the services to meet the requirements of 707 KAR Chapter 1 or ensures that the services are otherwise provided at no cost to the parent. Nothing in these administrative regulations will relieve an insurer or similar third party from an otherwise valid obligation to provide or to pay for services provided to a child with a disability. Qualified personnel mean personnel who meet the statutory or regulatory qualifications for each respective profession currently applicable in this state. Reasonable efforts to obtain voluntary compliance mean active and ongoing efforts by the KDE through technical assistance and negotiation to arrive at an acceptable CAP and follow through on an agreed upon CAP.

8 1: Definitions

Related services means transportation and such developmental, corrective, or supportive services as are required to assist a child with a disability to benefit from special education. It includes speech/language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation including therapeutic recreation, early identification and assessment of disabilities in children, counseling services including rehabilitation counseling, orientation and mobility services, and medical services for diagnostic or evaluation purposes. Related services also means school health services and school nurse services, social work services in school, and parent counseling and training. Related services do not include a medical device that is surgically implanted, the optimization of that device’s functioning (such as mapping), maintenance of that device, or the replacement of that device. The definition of related services doe not: 1) the responsibility of the LEA to appropriately monitor and maintain medical devices that are needed to maintain the health and safety of the child, including breathing, nutrition, or operation of other bodily functions, while the child is transported to and from school or is at school; 2) prevents the routine checking of an external component of a surgically implanted device to make sure it is functioning properly or 3) limit the right of a child with a surgically implanted device to receive related services that are determined by the ARC to be necessary for the child to receive FAPE.

Sanctions means actions (e.g., technical assistance, consultation, training) that are taken by the KDE in response to a LEA’s failure to comply with the required standards in state and federal laws and administrative regulations. School day means any day, including a partial day that children are in attendance at school for instructional purposes. School day means the same thing for all children in school, including children with or without disabilities. Serious bodily injury means bodily injury as established in 18 U.S.C. Section 1365 (h) (3). Services plan means a written statement that describes the special education or related services that the LEA will provide to a parentally-placed child with a disability enrolled in a private school who has been designated to receive services, including the location of the services and any transportation necessary that is developed in accordance with 707 KAR 1:370. Special education means specially designed instruction, at no cost to the parent, to meet the unique needs of the child with a disability including instruction in the classroom, in the home, in hospitals and institutions, and in other settings. Special education means speech/language pathology services (if the service is considered special education rather than a related service), travel training, and vocational education. Special education mentor means individuals with exceptional expertise, experience, and certification in special education administration or teaching granted the authority described in KRS 157.197. Specially designed instruction means adapting as appropriate the content, methodology, or delivery of instruction to address the unique needs of the child with a disability and to ensure access of the child to the general curriculum included in the Program of Studies, 704 KAR 3:303.

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Specific learning disability (SLD) means a disorder that adversely affects the ability to acquire, comprehend or apply reading, mathematical, writing, reasoning, listening, or speaking skills to the extent that specially designed instruction is required to benefit from education. The specific learning disability (LD) may include dyslexia, dyscalculia, dysgraphia, developmental aphasia, and perceptual/motor disabilities. The term does not include deficits that are the result of other primary determinant or disabling factors such as vision, hearing, motor impairment, mental disability, emotional/behavioral disability, environmental or economic disadvantaged, cultural factors, limited English proficiency, or lack of relevant research-based instruction in the deficit area. Speech or language impairment means a communication disorder, including stuttering, impaired articulation, a language impairment, a voice impairment, delayed acquisition of language, or an absence of language, that adversely affects a child’s educational performance. Supplementary aids and services means aids, services, and other supports that are provided in regular education classes or other education-related settings to enable a child with disabilities to be educated with nondisabled children to the maximum extent appropriate in accordance with 707 KAR 1:350. Transition Services means a coordinated set of activities for a child with a disability that:

A. Is designed within a results-oriented process, that is focused on improving the academic and functional achievement of the child with a disability to facilitate the child’s 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;

B. Is based on the individual student’s needs, taking into account the child’s strengths, preferences, and interests; and

C. Includes: 1. Instruction; 2. Related services; 3. Community experiences; 4. The development of employment and other post-school adult living objectives; and, 5. If appropriate, acquisition of daily living skills and functional vocational evaluation.

Traumatic brain injury (TBI) means an acquired injury to the brain caused by an external physical force, resulting in total or partial functional disability or psychosocial impairment, or both, that adversely affects a child’s educational performance. TBI does not mean brain injuries that are congenital or degenerative or brain injuries induced by birth trauma. TBI means open or closed head injuries resulting in impairments in one (1) or more areas, including the following:

A. Cognition B. Language C. Memory D. Attention

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E. Reasoning F. Abstract thinking G. Judgment H. Problem-solving I. Sensory, perceptual, and motor abilities J. Psychosocial behavior K. Physical functions L. Information processing M. Speech

Travel training means instruction to children with significant cognitive disabilities and any other children with disabilities, as appropriate, to enable them to develop an awareness of the environment in which they live and to learn the skills necessary to move effectively and safely from place to place within that environment (e.g., school, home, work, and community). Visual impairment (VI) means a child has a vision loss, even with correction, as follows:

A. Requires specialized materials, instruction in orientation and mobility, Braille, visual efficiency, or tactile exploration;

B. Has an adverse effect on the child’s educational performance; and C. Meets the following:

1. The child has visual acuity even with prescribed lenses that is 20/70 or worse in the better eye; or

2. The child has visual acuity that is better than 20/70 and the child has one of the following conditions:

a) A medically diagnosed progressive loss of vision; b) A visual field of twenty (20) degrees or worse; c) A medically diagnosed condition of cortical blindness; or d) A functional vision loss;

Ward of the state means a child who has been committed to the Cabinet for Families and Children (CFC) or the Department of Juvenile Justice (DJJ) through a legal process, whether the commitment is voluntary or nonvoluntary and the biological or adoptive parental rights have been terminated. Weapon means dangerous weapon as defined in 18 U.S.C. Section 930 (g) (2). Withholding means no further payments of specified funds are made to an approved recipient.

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CHAPTER 2 FREE APPROPRIATE PUBLIC EDUCATION

707 KAR 1:290 SECTION I FREE APPROPRIATE PUBLIC EDUCATION An LEA* shall make a free appropriate public education (FAPE) available to all children with disabilities age three (3) to twenty-one (21) residing within its district’s boundaries who have not received a high school diploma, including children with disabilities who have been suspended or expelled for more than ten (10) school days in a school year. FAPE shall be provided to each child with a disability even though the child has not failed or been retained in a course and is advancing from grade to grade based on the child’s unique needs and not on the child’s disability. A LEA shall not be required to provide FAPE to a student eighteen (18) years old or older, who is placed in an adult correctional facility if, in the educational placement prior to placement in the correctional facility, the student was not identified as a child with a disability and did not have an IEP†. 707 KAR 1:290, Section 1(1) The Jefferson County Public School (JCPS) District makes a free appropriate public education (FAPE) available to each child or youth with a disability:

A. Whose age is three (3) to twenty-one (21) years; B. Who resides in a home, facility, residence, or any type of shelter within the JCPS

District’s geographical boundaries; C. Who has a disability, regardless of the severity; D. Who needs special education and related services; E. Who has been suspended or expelled for more than ten (10) school days in a school year;

and F. Who has not graduated with a regular education diploma.

The JCPS District makes FAPE available to children and youth with disabilities as specified — even though the child has not failed or been retained in a course and is advancing from grade to grade — based on the child’s unique needs and not on the child’s disability. The district provides to the child and parents all of the rights under Part B of the Individual with Disabilities Education Act (IDEA) and under Kentucky law and the Kentucky Administrative Regulations (KARs). The district and its schools provide services for children and youth with disabilities ages three (3) to twenty-one (21) years, consistent with the Kentucky Program of Studies, 707 KAR Chapter 1 (special-education regulations) and district procedures. Services for children and youth with disabilities include:

A. Individualized instruction to meet the unique needs of children and youth with disabilities; and

B. The variety of programs, services, and activities provided for children and youth without disabilities.

* local educational agency (LEA), which means the JCPS District † Individual Education Program (IEP)

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FAPE is provided through an Individual Education Program (IEP) that serves as a program of reasonably designed strategies and services to meet the individual needs of a child or youth with a disability. The district is not required to provide education to youths with disabilities who are eighteen (18) years or older and who are placed in an adult correctional facility if, in the educational placement prior to placement in the correctional facility, the student was not identified as a child with a disability and did not have an IEP. No Cost to Parent “Free appropriate public education” or “FAPE” means special education and related services that: (a) Are provided at public expense under public supervision and direction, and without charge; (b) Meet the standards of the Kentucky Department of Education included in 707 KAR Chapter 1 and the Program of

Studies, 704 KAR 3:303, as appropriate; (c) Include preschool, elementary school, or secondary school education in the state; and (d) Are provided in conformity with an individual education program (IEP) that meets the requirement of 707 KAR

1:320. 707 KAR 1:002, Section 1(27) “Public Expense” means that the LEA either pays for the full cost of the services to meet the requirements of 707 KAR Chapter 1 [special education regulations] or ensures that the services are otherwise provided at no cost to the parent. Nothing in these administrative regulations shall relieve an insurer or similar third party from an otherwise valid obligation to provide or to pay for services provided to a child with a disability. 707 KAR 1:002, Section 1(48) The district makes sure that any expenses for the identification, evaluation, and educational placement of a child or youth with disabilities, or the provision of special education and related services for a child or youth with disabilities, are at no cost to the parent. There is no cost to the parent and no cost to the youth if he or she is emancipated (age eighteen [18] or married). This requirement does not preclude charging incidental fees, which are normally charged to a child without disabilities or to the parent as part of the regular education program (e.g., activity fees, field trips). Private Insurance The district ensures that services are at no cost to the parent through:

A. Interagency agreements; state, local, or federal funds; or insurance reimbursement arrangements; or

B. The use of third party-payments, private or public, that support the education or non-education costs of providing FAPE to a child or youth with a disability. The district may use third-party payments if: 1. The parent agrees to the use; 2. There are no out-of-pocket costs for the parent, such as a deductible amount incurred

in filing a claim; 3. There is no increase in the costs to the parent; and 4. There is no decrease in benefits to the parent; or when:

(a) The parent agrees to the use;

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(b) The district pays any out-of-pocket or increased costs; and (c) There is no decrease in benefits to the parent.

If payment for services under 707 KAR Chapter 1 is to be provided by an agency other than the district, the district will ensure that the services are provided without delay, even if there is a delay in the payment for those services. Public Insurance (e.g., Medicaid) The district is an authorized school-based health-services provider. When a child or youth with a medical card receives a billable service (e.g., speech therapy, physical therapy) through the IEP, the parent will be asked by the Admissions and Release Committee (ARC) chairperson/district representative to give written authorization for the district to bill these services directly to the child’s or youth’s medical card. The parent may choose to deny access to this Medicaid billing at any time. The parent will be told that the child’s or youth’s benefits under the Medicaid Program are not reduced because the district bills for appropriate services. The parent’s and child’s rights and services provided through an IEP are not affected in any way by the district’s participation in the Medicaid Program. In the event that a child or youth with a disability has a medical card and private insurance, the ARC chairperson/district representative will contact the executive director of Exceptional Child Education (ECE)/designee prior to making any decisions to bill Medicaid for services. Nothing in this part of the regulation relieves an insurer or similar third party from an otherwise valid obligation to provide or pay for services, including transition services, provided to a child or youth with a disability. This includes the Department of Vocational Rehabilitation or any other participating agency for which a child or youth with a disability meets the eligibility criteria of that agency. The district uses all fiscal resources available for the education of children and youth with disabilities according to all applicable state and federal laws and regulations. SECTION II ARC PLACEMENT OF A CHILD OR YOUTH IN A PRIVATE

SCHOOL OR AGENCY OTHER THAN THE DISTRICT An LEA shall be responsible for ensuring the rights and protections under 707 KAR Chapter 1 are given to children with disabilities referred to or placed in private schools and facilities by the LEA. 707 KAR 1:290, Section 1(2) If any ARC chairperson/district representative anticipates that the IEP cannot be implemented at the student’s assigned school, the ARC chairperson/district representative will contact the coordinator of ECE Placement/designee for assistance in removing barriers to the implementation of the IEP. If the ARC, including the coordinator of ECE Placement/designee as an ARC member, determines that the special education and related services cannot be provided through an existing district program following procedures in Chapter 6, “Placement Decisions”, then the ARC explores placement alternatives in another local educational agency (LEA), another public or state-operated program, or a private agency or program.

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Prior to placing a child with a disability in, or referring a child to, a private school or facility, the LEA shall initiate and conduct an ARC meeting to develop an IEP for the child. The LEA shall ensure that a representative of the private school or facility attends the ARC meeting. If the representative cannot attend, the LEA shall use other methods to ensure participation by the private school or facility, including individual or conference telephone calls. 707 KAR 1:320, Section 8(1-2) The coordinator of ECE Placement/designee contacts the program that provides the type of services specified in the IEP regarding the possible referral of the child or youth to the program and makes arrangements for the representative of the program to participate in the ARC meeting. Participation by the representative of the program is provided through attendance at meetings, written communication, or individual or conference telephone calls. In accordance with the written notification of the meeting, the ARC, including a representative of the program, meets to address the referral of the child or youth to that program. The ARC reviews the student’s IEP in collaboration with the representative of the program to determine if the program is able to provide the specified services. If the program is acceptable, it assumes responsibility for providing the special education and related services in the IEP. If applicable, the executive director of ECE completes a contract with the program for approval by the JCPS superintendent and Jefferson County Board of Education (JCBE) and arranges transportation for the student that is consistent with the beginning dates in the IEP. If the program is not appropriate, then the ARC members explore options for other alternative placements. If a child with a disability is placed by the LEA in a private school or facility, the LEA remains responsible for compliance with 707 KAR Chapter 1. An LEA that places a child with a disability in or refers a child to a private school shall ensure that the child: (a) Is provided specially designed instruction and related services in conformance with an IEP that meets the standards

of 707 KAR Chapter 1, and at no cost to the parents; (b) Is provided an education that meets the standards of the LEA including general curriculum standards; and (c) Has all the rights of any child with a disability served by the LEA. 707 KAR 1:320, Section 8(4-5) When the child or youth is placed in another program, the coordinator of ECE Placement/designee:

A. Makes sure that the ARC membership includes a representative of the program; B. Convenes the ARC meetings that the program requests regarding review and revision of

the IEP; C. Arranges participation by the program, including individual or conference telephone

calls, if the representatives of the program cannot attend; D. Conducts meetings for reviewing and revising the IEP according to procedures, at least

on an annual basis or when requested by the parent or any other ARC member; E. Makes sure that reevaluation procedures are followed at least every three (3) years or as

requested by the parent or the program according to procedures in Chapter 3, “Child Find, Evaluation, and Reevaluation”;

F. Makes sure that the ARC determines placement on an annual basis;

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G. Makes sure that the child or youth and parent are afforded all rights and protections afforded under 707 KAR Chapter 1 (special education regulations); and

H. Monitors implementation of the terms specified in the contract or agreement. After a child with a disability is placed in a private school or facility, any meetings to review and revise the child’s IEP may be initiated and conducted by the private school or facility at the discretion of the LEA. 707 KAR 1:320, Section 8(3) The coordinator of ECE Placement/designee will determine who will serve as the ARC chairperson/district representative while the child or youth is placed in the other program. If the receiving program fails to provide the special education and related services that are specified in the IEP, then the coordinator of ECE Placement/designee initiates an ARC meeting. If a private school or facility initiates the meetings, the LEA shall ensure that the parents and LEA staff are involved in any decision about the child’s IEP and agree to any proposed changes in the IEP before those changes are implemented. 707 KAR 1:320, Section 8(4) The district is responsible for ensuring that the student has all of the rights of a child or youth with a disability who is directly served by the district. Any mediation, complaint, or due-process hearing is filed with regard to the district, not the other program. Disputes between the district and other programs are resolved according to the procedures specified in Kentucky’s state plan, which is approved under Part B of IDEA. Other State Agencies Responsible for Education State agencies charged with the responsibility of providing educational services to children with disabilities within their care shall provide those services in accordance with 707 KAR Chapter 1. 707 KAR 1:290, Section 1(3) State agencies that are responsible for providing educational services to children and youth with disabilities are the Cabinet for Families and Children (CFC) and the Department of Juvenile Justice (DJJ). These agencies may arrange with local school districts for the provision of educational services through contracts or Memorandums Of Agreement (MOA), or they may hire staff to provide such services. Payment for Services and Contract Provisions If payment for services under 707 KAR Chapter 1 is to be provided by an agency other than the LEA, the LEA shall ensure the services are provided without delay even if there is a delay in the payment for those services. 707 KAR 1:290, Section 1(4) If the ARC determines that the child or youth requires placement in a special education program operated by another county or by an independent district or in a private school or facility, the district maintains responsibility for the payment of the costs incurred in educating the student. If another program accepts the child or youth recommended by the district ARC, the contract specifies that the receiving program will:

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A. Provide special education and related services as specified in the IEP, including the following:

1. Each IEP staff and related-service provider designs and initiates instructional plans for accomplishing IEP goals and benchmarks or short-term objectives; and

2. Each IEP staff and related-service provider does the following on an ongoing basis:

a. Uses measurement techniques specified in the IEP to monitor the progress of the student; and

b. Maintains a written record of the student’s progress toward achieving the IEP goals.

B. Report the student’s progress toward achieving the IEP goals at least as often as progress is reported for all children and youth;

C. Make sure that the child or youth and parent are afforded all rights and protections according to special education regulations;

D. Notify the district of the need to initiate and conduct ARC meetings; E. Monitor and evaluate the IEP at intervals specified in the IEP; F. Forward written results of monitoring and evaluation of the IEP to the parent and the

district; G. Participate in ARC meetings convened by the district; and H. Make sure that special education and related services are provided by qualified personnel.

Education records of the children and youth who are provided services in other programs are maintained by the coordinator of ECE Placement/designee. Copies of contracts, agreements, and correspondence are maintained in the office of the executive director of ECE. The district pays for the transportation of the student to and from the program in the other school district or to the private agency or program. If the school board of the other district or the private program that is providing the services also provides transportation, the cost of transportation may be included in the total cost of the contract. SECTION III RESIDENTIAL PROGRAM If it is determined necessary by an ARC to place a child with a disability for educational purposes in a private residential educational program, the program, including non-medical care and room and board, shall be provided by the LEA that convened the ARC. An LEA may fulfill its responsibility under this section by providing the services directly or by contracting for those services. 707 KAR 1:290, Section 2 If an ARC determines that appropriate special education and related services cannot be provided through existing programs in the district and that a private residential educational program is required for FAPE, then the ARC chairperson/district representative will request that the coordinator of ECE Placement/designee attend an ARC meeting for the consideration of placement alternatives. The individual assigned as the meeting recorder will document the ARC’s decisions and timelines in the meeting summary. If it is recommended by the district ARC to place a child or youth with a disability for educational purposes in a private residential educational program, the program, including nonmedical care and

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room and board, will be provided by the district. The district may fulfill its responsibility under this section by providing the services directly or by contracting for those services. SECTION IV PROPER FUNCTIONING OF HEARING AIDS An LEA shall ensure that a hearing aid worn in school by a child with a hearing impairment is functioning properly. An LEA shall ensure that the external components of surgically implanted devices of children with disabilities are functioning properly; however, an LEA shall not be responsible for the post-surgical maintenance, programming, or replacement of the medical device that have been surgically implanted. 707 KAR 1:290, Section 3 SECTION V PROGRAM OPTIONS An LEA shall ensure that all children with disabilities have available to them the variety of educational programs, services and curriculum as described in the Kentucky Program of Studies, 704 KAR 3:303, that is available to children without disabilities. These educational services may include art, music, industrial arts, consumer and family science education, and career and technical education and other educational services. 707 KAR 1:290, Section 4 No child or youth with a disability will be denied access to any program, service, or curriculum solely on the basis of his or her disability. The ARC will consider if special education and related services and supplemental aids and services are needed to allow participation and will make such provisions as necessary. (See Chapter 5, “Individual Education Program”.) All children, including children and youth with disabilities, must be otherwise eligible for participation and thus meet established criteria for the specific program, service, or curriculum (e.g., prerequisite academic requirements for a specific class). SECTION VI NONACADEMIC SERVICES An LEA shall take steps, including the provision of supplementary aids and services as determined appropriate and necessary by the child’s ARC, to provide all children with disabilities the nonacademic and extracurricular services and activities, which give children with disabilities an equal opportunity for participation in those services and activities. These services and activities may include: (a) Counseling services; (b) Athletics; (c) Transportation; (d) Health services; (e) Recreational activities; (f) Special interest groups or clubs sponsored by the LEA; (g) Referrals to agencies that provide assistance to individuals with disabilities; and (h) Employment of students, including both employment by the LEA and assistance in making outside employment

available. 707 KAR 1:290, Section 5 No child or youth with a disability will be denied access to any program, service, or curriculum solely on the basis of his or her disability or because he or she is currently receiving services under IDEA. (See Chapter 5, “Individual Education Program”.)

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All children, including children and youth with disabilities, must be otherwise eligible for participation and thus meet established criteria for the specific program, service, or curriculum (e.g., prerequisite academic requirements for a specific class). Individual accommodations that are necessary for children and youth with disabilities to try out and/or to participate in extracurricular activities will be afforded, including the provision of supplementary aids and services, as determined appropriate and necessary by the child’s ARC. SECTION VII PHYSICAL EDUCATION Unless the provisions of subsection (2) of this section apply, an LEA shall make available to every child with a disability: (1) Physical education services, specially designed if prescribed in the child’s IEP; or (2) The opportunity to participate in the regular physical education program available to children without disabilities. An

LEA is not required to make available physical education services to a child with a disability if: (a) The child is enrolled full time in a separate facility in which case the agency responsible for the education of the

child in that facility shall ensure the child receives appropriate physical education; or (b) The LEA enrolls children without disabilities and does not provide physical education to children without disabilities in the same grades. 707 KAR 1:290, Section 6 (1-2) The ARC members decide, based on data collected and the present levels of academic achievement and functional performance descriptions in the IEP, if the child or youth is to receive regular physical education, with or without modifications and supplementary aids and services, or specially designed physical education. If physical education is not an identified need related to the disability of the child or youth, the ARC will apply the same criteria for participation in physical education as afforded to all children and youth as stated in Section V, “Program Options”, in this chapter. The district is not required to provide physical education to children with disabilities in a specific grade or level if nondisabled students of the same grade or level are not provided with physical education. If goals and benchmarks or short-term objectives address motor functioning, then the ARC will describe in the IEP the specially designed physical education. SECTION VIII ASSISTIVE TECHNOLOGY An LEA shall ensure that assistive technology devices or assistive technology services, or both, as defined in 707 KAR 1:002 (3) or (4) are made available to a child with a disability if required as part of the child’s special education, related services, or supplemental aids and services. On a case by case basis, the use of school-purchased assistive technology devices in a child’s home or in other settings is required if the ARC determines that the child needs access to those devices in order to receive FAPE. 707 KAR 1:290, Section 7 The ARC determines the need for the use of assistive technology in nonschool settings and specifies any such need in the IEP.

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The ARC will determine if an assistive technology device is required to enable the child or youth:

A. To make progress toward the measurable annual goals in the IEP; B. To be involved in and progress in the regular education curriculum; or C. To participate in extracurricular and other nonacademic activities.

SECTION IX EXTENDED SCHOOL YEAR SERVICES “Extended school year‡ services” means specially designed instruction and related services that are provided to a child with a disability beyond the normal school year in accordance with the child’s IEP at no cost to the parents. 707 KAR 1:002, Section 1(26) An LEA shall ensure that extended school year services (ESY) are available to each child with a disability, as necessary, to provide FAPE. The determination of the need for extended year services shall be made on an individual basis. In making this determination, the LEA shall not: (1) Limit the provision of extended year services to a particular category(s) of disability; or (2) Unilaterally limit the type, amount, or duration of those services. 707 KAR 1:290, Section 8 The district provides an extended school year (ESY) to a child or youth with disabilities, regardless of the nature or severity of the disability, if the ARC determines that the services are required in order for the child or youth to receive FAPE. ESY services are provided when the recoupment time for a child or youth with a disability exceeds that of similar-age peers who are not disabled and who experience the same lapse in instruction. ESY services extend beyond the regular school year for the purpose of maintaining the child’s or youth’s current skill level, which, without continued instruction, would be lost or would require inordinate time to regain those skills. ESY services are not designed to teach new skills, to prevent normal amounts of regression, or to allow the child or youth to make additional progress. They are simply designed to maintain the present levels of academic achievement and functional performance and thus prevent excessive recoupment time. ARC Analysis of ESY Criteria In order to document evidence of regression/excessive recoupment, it is critical that reliable measures of student performance be available. The ARC’s determination of the need for ESY services is not based on any single criterion. The ARC analyzes the following data:

A. Ongoing progress data points — which are measured by IEP staff and which are relative to the skills outlined in the IEP goals and have been taught — to assess the length of recoupment time. These data point are as follows: 1. Measurement at the end of a period of instruction (e.g., end of school year, prior to

Winter Break); 2. Measurement at the beginning of a period of instruction after a lapse of instructional

time (e.g., beginning of school year, return from Winter Break); and 3. Measurement at regular intervals until the performance level is equal to the

‡ extended school year (ESY)

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performance when the lapse in instruction time began. B. Tests and observation data collected over a period of time and the opinion of

professionals when there have been no breaks in instruction or analysis of data fails to yield a valid assessment of recoupment. The professional opinion is based on an individual assessment of student regression and recoupment skills.

The ARC considers all progress data at the annual review of the IEP and at any other time as requested by any ARC member. In order to make a determination regarding the possible requirement for the provision of ESY services, the ARC reviews the ongoing progress data trends, tests, observation results, and professional opinions as presented by the ARC members. If ESY services were provided during the interruption in the educational program, there must be documentation indicating that regression and excessive recoupment time would have been a pattern for the student if no ESY services had been provided. The services and the amount of time required for ESY may vary for each child or youth as determined by the ARC. In addition, the type and amount of services are specific to the skills area(s) that have documented excessive recoupment time and are not necessarily the full range or amount of services that was outlined in the most recent IEP. The executive director of ECE/designee makes arrangements for the child or youth to receive ESY services according to the specifications in the IEP. Consideration of ESY Services for Three- (3-)Year-Old Children in Transition ESY services extend beyond the regular school year for the purpose of maintaining the child’s current skill level, which, without continued instruction, would be lost or would require inordinate time to regain. ESY services are not designed to teach new skills, to prevent normal amounts of regression, or to allow the child to make additional progress. They are simply designed to maintain the present levels of academic achievement and functional performance and thus prevent excessive recoupment time. Children with disabilities who have their third birthday during the summer months are not automatically entitled to receive special education and related services during the summer months, and summer services must be provided only if the ARC determines that the child needs ESY services during the summer in order to receive FAPE. In the case of a child who is transitioning from First Steps (Kentucky’s Early Intervention System) or from other early intervention programs, the ARC should look at the child’s current skills levels in the IEP, which are carried over from the Individual Family Service Plan (IFSP). The service providers or infant-toddler program the child is coming from will have records on the child’s progress on IFSP skills. If records of progress are not available, the ARC must use professional opinions that are based on an individual assessment of the child’s regression and recoupment skills. The criteria for determining eligibility for ESY services for the three- (3-) year old is the same as the criteria for all children and youth with disabilities. Since ESY services are designed to maintain the current levels of skills on the child’s IEP and not on

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general development, it is not necessarily required that the services be delivered in a summer preschool class. Depending on the skill(s) being addressed, ESY services could be provided in the home or some other appropriate arrangement could be made. SECTION X PROHIBITION OF MANDATORY MEDICATION LEA personnel shall not require a child to obtain a prescription for a substance covered by schedules I, II, III, IV, or V in of the Controlled Substance Act (21 U.S.C. 812 (c)), as a condition of attendance in school, receiving an evaluation under 707 KAR 1:300, or receiving services under 707 KAR Chapter 1. However, school personnel may consult or share classroom-based observation with parents or guardians regarding student’s academic, functional, or behavioral performance or regarding the need for evaluation to determine eligibility for special education services.

707 KAR 1:290, Section 9

3: Child Find, Eval, & Reeval 1

CHAPTER 3 CHILD FIND, EVALUATION, AND REEVALUATION

707 KAR 1:300 SECTION I CHILD FIND SYSTEM A LEA* shall have in effect policies and procedures that plan and implement a child find system to locate, identify, and evaluate each child: (a) Whose age is three (3) to twenty one (21); (b) Who resides in a home, facility, or residence within the LEA’s geographical boundaries, including children with disabilities who attend private schools located within the LEA boundaries, children who are highly mobile such as migrant and homeless children as described in 704 KAR 7:090, children who are wards of the state or are in state custody and students who are advancing grade to grade resulting from passing a grade but who still may have a disability; (c) Who is either in or out of school; and (d) Who may need special education and related services; For preschool age children with disabilities, a LEA must ensure a smooth and effective transition from the early intervention program to preschool. Each LEA shall participate in transition planning conferences for children with disabilities served by early intervention programs. 707 KAR 1:300, Section 1 Child Find Activities The Jefferson County Public School (JCPS) District, through its Child Find system, makes a systematic effort to identify all children and youth with disabilities who reside within the district boundaries, both out of school and in school. The Child Find system:

A. Includes activities to locate, identity, and evaluate any child or youth who is from three (3) to twenty-one (21) years of age and who meets the above criteria;

B. Is available throughout the calendar year during the normal business day; C. Involves opportunities for parent and community involvement; and D. Informs all involved personnel of due process and confidentiality procedures and

requirements consistent with Chapter 7, “Procedural Safeguards and State Complaint Procedures”, and Chapter 9, “Confidentiality of Information.”

At the beginning of each school year, the JCPS District conducts Child Find activities that target the community at large, district personnel, private school personnel, and parents of preschool and school-age children and youth. At the beginning of each school year, the executive director of Exceptional Child Education (ECE)/designee conducts the following activities that target the community at large:

* Local educational agency (LEA), which means the JCPS District

2 3: Child Find, Eval, & Reeval

A. Publishes the “Child Find Notice” in The Courier-Journal (See Appendix A); B. Sends a public service announcement to the JCPS public information officer for

distribution to all local radio stations included on the JCPS Local Media List; and C. Mails the Child Find poster to public locations throughout the district’s geographical

boundaries, which may include: 1. City and county government offices; 2. Public libraries; 3. U.S. post offices; 4. Homeless shelters and transitional shelters; 5. Neighborhood places; and 6. Agencies dealing with foreign nationals who are immigrating to the district’s

geographical area. At the beginning of each school year, the district distributes to the parents of all JCPS students a copy of the Code of Acceptable Behavior and Discipline and the Student Bill of Rights. This publication provides to parents the following information regarding children and youth with disabilities:

A. A child find notice; B. Information on the right of a free appropriate public education (FAPE) for all children

and youth with disabilities; C. Suspension procedures for children and youth with disabilities, including the right to

FAPE; and D. The annual notice required by the Family Educational Rights and Privacy Act (FERPA)

and KRS 160.00 regarding confidentiality procedures. At the beginning of each school year, a letter is sent to administrators of private schools and parents of children and youth attending home schools. This letter outlines the following: the district’s obligations under Child Find to children or youth who attend private schools within district boundaries, services available to children and youth with disabilities, and procedures for contacting district personnel to refer a child or youth suspected of having a disability. Child Find materials are provided to the private schools for publication in parent/staff newsletters or for posting on bulletin boards. The executive director of ECE/designee conducts awareness activities with district personnel to notify them of the need to identify children and youth with disabilities who need special education and related services.

A. At the beginning of each school year, the executive director of ECE/designee publishes Child Find information within districtwide publications, such as Monday Memo.

B. Within ninety (90) calendar days of the start of school, the executive director of ECE/designee sends an update to district personnel about referral procedures for children and youth who may have a disability. This update includes information regarding the use of screenings, results of statewide and districtwide assessments, and data from school-based intervention teams to assist in the identification of children and youth who may


have a disability. At the beginning of each school year, the executive director of ECE, and the coordinator of Early Childhood Special Services send a letter to private preschools, pediatricians, family practitioners, and other service providers. The letter outlines the following: the district’s obligations under Child Find, services available to children and youth with disabilities, and procedures for contacting district personnel to refer a child or youth suspected of having a disability. Child Find materials are provided to the private preschools for publication in parent/staff newsletters or for posting on bulletin boards. At least twice a year, screening programs are conducted within the community to identify preschool-age children who may have a disability. These screenings are advertised through a mailing to private preschools, pediatricians, family practitioners, and other service providers. Use of Screening Information The district’s Child Find system uses information obtained through any systematic screening program, including educational history, enrollment requirements for a medical examination, and routine school-based health screenings of all children and youth enrolled in the district, to identify physical- and mental-health barriers that have an impact on the learning of individual children and youth. If — through the implementation of district screening procedures, including any follow-up activities — a child or youth continues to have physical- or mental-health barriers to learning after the interventions and a disability is suspected, then the individual who monitors the interventions completes a referral and submits it to the appropriate Admissions and Release Committee (ARC) according to the procedures in Section III, “Referral System” of this chapter. Use of Information Obtained Through Intake Procedures Upon receipt of intake information about potentially identifiable children and youth with disabilities, the executive director of ECE/designee reviews the information with the parent and:

A. Refers the child or youth to an appropriate ARC; or B. Refers the child or youth to an age-appropriate service agency (e.g., First Steps

[Kentucky’s Early Intervention System], Kentucky Office of Vocational Rehabilitation). Early-Intervention Transition Planning The lead agency designated or established under section 633(a)(10) will: (I) notify the local educational agency for the area in which the child resides that the child will shortly reach the age of

eligibility for preschool services under Part B of the Act, as determined in accordance with State law; (II) in the case of a child who may be eligible for preschool services under Part B of the Act, with the approval of the

family of the child, convene a conference among the lead agency, the family, and the local educational agency at least 90 days, (and at the discretion of all such parties, no more than 9 months) before the child is eligible for the preschool services, to discuss any services that the child may receive; and

(III) in the case of a child who may not be eligible for preschool services under Part B of the Act, with the approval of the family, make reasonable efforts to convene a conference among the lead agency, the family, and providers of other appropriate services for children who are not eligible for preschool services under Part B, to discuss the appropriate services that the child may receive. U.S.C. 637(a)(9)(A)(ii)


For preschool children involved in First Steps, the coordinator of Early Childhood Special Services ensures a smooth transition to preschool services through the following procedures for early- intervention transition planning:

A. If the parent provides written release of information, First Steps provides Child Find information on children receiving services through First Steps;

B. The Primary Service Coordinator (PSC) from First Steps, with permission of the parent, schedules a Transition Conference after the child’s second (2nd) birthday for the purpose of planning steps to support the child and family during transition from First Steps. At this conference, the coordinator of Early Childhood Special Services/designee: 1. Reviews possible program options for the child at age three (3); and 2. Provides the parent with a JCPS Transition Packet, which includes an Early

Childhood preschool application and information regarding the district and its referral process;

C. If the parent chooses to refer the child to the district, the PSC submits a written referral to the coordinator of ECE Placement/designee in a timely manner so that an ARC can be convened ninety (90) days prior to the child’s third (3rd) birthday; and

D. The coordinator of ECE Placement/designee schedules an ARC meeting ninety (90) days prior to the child’s third (3rd) birthday to review the referral according to procedures in Section III, “Referral System”, of this chapter.

SECTION II CHILD TRACKING The district has developed and implements a child tracking system that monitors:

A. Which children and youth are currently receiving special education and related services; and

B. Which children and youth need special education and related services but are not currently receiving these services, including children and youth in private schools who have declined services.

The child tracking system displays which children and youth:

A. Have a disability, have an Individual Education Program (IEP), and receive services specified in the IEP (regardless of where the special education and related services are provided); and

B. Are in the process of identification, location, evaluation, and possible placement. The child tracking system is used throughout the year to provide needed information (e.g., compilation of child reporting data, identification of those children and youth requiring reevaluation, identification of those youth who will turn eighteen [18] years of age the following year). The district ensures that all child tracking data are collected and stored according to procedures in Chapter 9, “Confidentiality of Information.” The data from the tracking system is maintained in


locked file cabinets. Material stored in computer files is stored in secure systems. SECTION III COORDINATED EARLY INTERVENING SYSTEM The LEA may conduct early intervening services for students from kindergarten through twelfth (12th) grade (with particular emphasis on students in kindergarten through grade three) who need additional academic and behavioral support in order to be successful in the regular education environment prior to referral for special education. 707 KAR 1:300, Section 2 The referral system shall be conducted in such a manner as to prevent inappropriate over identification or disproportionate representation by race and ethnicity of children in special education by ensuring that each child has been provided appropriate instruction and intervention services prior to referral. 707 KAR 1:300, Section 3(2) The LEA shall ensure that: (a) Prior to, or as a part of the referral process, the child was provided appropriate, relevant research-based instruction and intervention services in regular education settings, with the instruction provided by qualified personnel; and (b) Data-based documentation of repeated assessments of achievement or measures of behavior is collected and evaluated at reasonable intervals, reflecting systematic assessment of student progress during instruction, the results of which were provided to the child’s parents. 707 KAR 1:300, Section 3(3) Screenings conducted by a teacher or a specialist to determine appropriate instructional strategies for curriculum implementation shall not be considered to be an evaluation for eligibility for specially designed instruction and related services and shall not need parental consent. 707 KAR 1:300, Section 4(3) When a concern exists regarding the academic and/or functional performance of a student, school personnel implement appropriate interventions from one of the district’s safety-net programs (e.g., Extended School Services [ESS], tutoring, Every One Reads, tiered interventions, mentoring, Family Resource Center [FRC] services). The selection of appropriate interventions should be based on student academic or functional performance data that has been collected over time. In developing appropriate interventions for a student, school personnel may conduct screenings to determine areas of weakness or concerns. Because these screenings are not considered an evaluation for determining eligibility, but rather a tool for developing instructional strategies, parental consent is not required. The child’s teacher or implementer documents each intervention which addresses the area(s) of concern. Each selected intervention should be based on peer-reviewed research and should be aligned with the needs of the student. Documentation should include:

A. A description of how each intervention addresses the area(s) of concern; B. A description of how each intervention is to be monitored over time through data-based

documentation: C. The length of time and frequency that the child is to participate in each intervention; and D. Materials to be used during each intervention, if appropriate.

The goal of all universal, targeted, and intensive interventions provided to children and youth is to ensure success in the regular education program environment. A referral for special education and


related services should only be considered after appropriate interventions have been implemented as described in this section. SECTION IV REFERRAL SYSTEM The LEA shall have a referral system that explains how referrals from district or non-district sources will be accepted and acted upon in a timely manner. 707 KAR 1:300, Section 3(1) If a child or youth is identified as having a suspected disability, the referral source, including but not limited to teachers, parents, and professionals, completes a written referral. If a parent or an individual who is not employed by the district refers a child or youth, district personnel (e.g., school counselor, building principal, teacher) provide assistance to make sure that the written referral document is completed and submitted to the ARC chairperson/district representative within fifteen (15) school days after the individual initiates the referral. The completed written referral includes:

A. Personally identifiable data, including name, parent, address, date of birth, and student number or social security number;

B. Current screenings in the areas of communication, hearing, and vision and the results of any follow-up evaluations if applicable;

C. An educational history, including, but not limited to, school(s) attended, patterns of attendance, years in school, current grade placement, grades, and participation in educational/behavioral support programs;

D. A written description of the current status of the child or youth in relation to his or her similar-age peers in such areas as communication, academic performance, or developmental skills; health, hearing, vision, and motor abilities; social and emotional competence; and general intelligence;

E. Results of performance on districtwide and state-mandated assessments and existing screenings collected according to the district procedures for screening to identify mental-health barriers to learning;

F. A listing of the child’s or youth’s involvement with outside agencies; and G. A written summary of appropriate instruction, support services, and interventions that

have been provided in the regular education program/environment to address each area of concern and to improve the educational performance or behavior of the child or youth. See Section III, “Coordinated Early Intervening System” in this chapter. This written summary should include the following: 1. The areas of educational performance or behavior targeted for intervention(s); 2. Specific intervention(s) used (e.g., support services, strategies, methods, materials,

environmental changes); 3. The length of time the intervention(s) were implemented; 4. Personnel involved in the intervention(s); and 5. The impact of the intervention(s) on the problem.


ARC Use of Referral Information If the child has not made adequate progress after an appropriate period of time during which the conditions in subsection (3) of this section have been implemented, a referral for an evaluation to determine if the child needs special education and related services shall be considered. 707 KAR 1:300, Section 3(4) The referring person submits the referral to the ARC chairperson/district representative in the building where the child or youth is enrolled. If the child or youth is not enrolled in school, attends a private school, or receives services from another public agency, the referring person submits the referral to the coordinator of ECE Placement/designee. The appropriate ARC chairperson/district representative determines the members of the ARC, including the parent, and schedules an ARC meeting within ten (10) school days of the receipt of the completed referral. The ARC chairperson/district representative provides proper notice to parents according to procedures in Chapter 7, “Procedural Safeguards and State Complaint Procedures.” The ARC convenes according to procedures in Chapter 5, “Individual Education Program,” to:

A. Discuss and review the referral information, including the results of appropriate interventions, and any other pertinent information provided to the ARC, including information provided by the parent; and

B. Discuss the possible need for an individual evaluation to determine: 1. Whether the child or youth has a suspected disability; and 2. The possible need for special education and related services.

ARC Action First, the ARC reviews referral information to verify that a lack of instruction in reading and/or math or limited English proficiency is not contributing to deficits in educational performance. The ARC also reviews additional referral information to verify that instruction and support have been provided (e.g., adjusting teaching strategies to learning style or learning preference; support for factors such as environmental and cultural factors) to address factors that may be contributing to deficits in educational performance. Refer to Section III, “Coordinated Early Intervention Systems” in this chapter for procedures to be used in documenting appropriate interventions within the regular education environment. If the ARC cannot verify that a concern persists after appropriate instruction and supports have been implemented in the regular education program, the ARC may discuss appropriate interventions and supports that might be implemented in the regular education setting to address the concern. (See subsection “Failure of Referral to Support a Suspected Disability” in this section.) If the ARC verifies that appropriate instruction and support have been implemented, then the ARC examines the referral information regarding each identified area of concern. Other referral information, including screening results, is also examined to decide whether or not the child or youth differs from his or her peers in the area(s) of concern to the extent that the information supports the presence of a suspected disability.


Each ARC makes sure that results of vision, hearing, health, motor, and other screenings required for all children and youth are available and used in the decision-making process. In the event that screening information (e.g., vision, hearing, health, motor skills) required by the district for all children and youth is for any reason not available, such screenings are conducted prior to the ARC determining a suspected disability. All issues identified by failed screenings are resolved prior to the collection of other evaluation data, and any needed evaluation is conducted at no cost to the parent. All evaluations are administered in conformance with nondiscriminatory evaluation procedures. Failure of Referral to Support a Suspected Disability If the ARC decides that the referral does not support the possibility of the presence of a disability and, therefore, decides not to conduct an evaluation, the ARC documents the it’s decisions in the meeting summary. The ARC chairperson/district representative provides notice of the refused action (refusal to initiate the evaluation of the child or youth) to the parent. This notice (i.e., meeting summary) states the reason the child or youth is not eligible for evaluation services and includes the following:

A. An explanation of why the ARC decided there is no reason to suspect that the child or youth has a disability;

B. Options the ARC considered and reasons why the options were rejected; C. A description of each test, record, or report the ARC uses as a basis to refuse a full and

individual evaluation; and D. A description of any other factors that are relevant to the ARC’s refusal.

Determination That a Disability Is Suspected If the ARC determines that the child or youth has a suspected disability, the ARC:

A. Documents the suspected disability or disabilities; B. Documents areas for evaluation related to the suspected disability or disabilities and any

additional concern(s) documented in the referral; C. Provides written notice of the ARC’s decisions on the meeting summary according to

procedures in Chapter 7, “Procedural Safeguards and State Complaint Procedures;” and D. Obtains written parental consent for the evaluation.

The ARC members consider the disability definitions and eligibility criteria (See Chapter 1, “Definitions”, and Chapter 4, “Determination of Eligibility”) to determine which area(s) of disability most closely approximates the area(s) of concern identified on the referral and which disabilities may be eliminated. The ARC is not limited to considering just one disability area. The ARC uses the referral information and any other available information to determine the area(s) of suspected disability. (See “ARC Action” of this section.) A child or youth is assessed in all areas related to the suspected disability. If parental consent is not given, the ARC chairperson/district representative or designee contacts the


executive director of ECE and follows procedures defined in Chapter 7, “Procedural Safeguards and State Complaint Procedures.” SECTION V EVALUATION/REEVALUATION Assessment tools and strategies shall be used that provide relevant information that directly assists and is used in the determination of the educational needs of the child. As part of an initial evaluation, if appropriate, or as part of any reevaluation, the ARC and other qualified professionals, if necessary, shall review existing evaluation data on the child including: (a) Evaluations and information provided by the parents; (b) Current classroom-based, local or state assessments and classroom-based observations; and (c) Observations by teachers and related services providers. 707 KAR 1:300, Section 4(14) On the basis of the review, and input from the parents, the ARC shall identify what additional data, if any, are needed to determine: (a) Whether the child has a particular category of disability and the educational needs of the child, or in the case of a

reevaluation of the child, whether the child continues to have a disability, and the educational needs; (b) The present levels of academic achievement and related developmental needs of the child; (c) Whether the child needs specially designed instruction and related services, or in the case of a reevaluation, whether

the child continues to need special education and related services; and (d) Whether any additions or modification to the special education and related services are needed to enable the child to

meet the measurable goals set out in the IEP and to participate, as appropriate, in the general curriculum. The LEA shall administer tests and other evaluation materials as needed to produce the data identified by the ARC. 707 KAR 1:300, Section 4(15-16) Initial Evaluation A LEA shall ensure that a full and individual evaluation is conducted for each child considered for specially designed instruction and related services prior to the provision of the services. The results of the evaluation shall be used by the ARC in meeting the requirements on developing an IEP as provided in 707 KAR 1:320. 707 KAR 1:300, Section 4(1) The district will conduct a full and individual evaluation at no cost to the parent for each child or youth considered for special education and related services prior to the provision of the services. The results of the evaluation will be used by the ARC in determining eligibility for services and in meeting the requirements of developing an IEP as provided in 707 KAR 1:320. The child or youth will be assessed in all areas related to the suspected disability including, if appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance and related developmental needs, communicative status, and motor abilities as identified by the ARC. The evaluation will be sufficiently comprehensive to identify all of the child’s or youth’s special education and related services needs, whether or not the area of assessment is commonly linked to the suspected disability category or categories. A variety of assessment tools and strategies will be used to gather relevant functional and developmental information about the child or youth, including information provided by the parent and information related to enabling the child or youth to be involved in and progress in the general curriculum described in the Kentucky Program of Studies, 704 KAR 3:303 (or for a preschool child


to participate in appropriate activities). A single procedure will not be used as the sole criterion for determining whether a child or youth has a disability or for determining an appropriate educational program for the child or youth. The ARC does not use the results from group-administered tests or procedures for determining the presence of a disability. However, for children and youth who are determined eligible, the ARC must consider, for programming purposes in IEP development, the results of the child’s or youth’s performance on any general statewide or districtwide assessment program. Assessment tools and strategies are selected to provide relevant information in determining the educational needs of the child or youth. As part of an initial evaluation, the ARC and other qualified professionals, if necessary, will review existing evaluation data on the child or youth, including:

A. Evaluations and information provided by the parent; B. Current classroom-based assessments and observations; and C. Classroom-based observations by teachers and providers of related services.

Existing evaluation data must be reviewed and a determination made regarding the data’s current validity and applicability to the issues under consideration by the ARC. This review of existing data may be conducted without parental consent and without an ARC meeting. However, all data and recommendations must be presented to the ARC for consideration and action. On the basis of the review and input from the parent, the ARC will identify what additional data, if any, are needed to determine:

A. Whether the child or youth has a particular disability and the educational needs of the child or youth;

B. The present levels of academic achievement and related developmental needs of the child or youth; and

C. Whether the child or youth needs special education and related services. Reevaluation An LEA shall ensure a reevaluation, unless the parent and the LEA agree that a reevaluation is unnecessary. A reevaluation may consist of the review described in subsection (14) of this section, and is conducted at least every three (3) years to determine: (a) The present levels of performance and educational needs of the child; (b) Whether the child continues to need special education and related services; and (c) Whether any additions or modifications to the special education and related services are needed to enable the child

to meet the measurable annual goals set out in the IEP and to participate, as appropriate, in the general curriculum. 707 KAR 1:300, Section 4(18) A public agency must ensure that a reevaluation of each child with a disability is conducted in accordance with §§300.304 through 300.311-34 CFR Part 300 §300.303(a) (1) If the public agency determines that the educational or related services needs, including improved academic

achievement and functional performance, of the child warrant a reevaluation; or (2) If the child’s parent or teacher requests a reevaluation. 34 CFR Part 300 §300.303(a)


An LEA shall evaluate a child with a disability in accordance with this administrative regulation before determining that the child is no longer a child with a disability. 707 KAR 1:300, Section 4(20) A reevaluation shall not be conducted more than once a year unless the parent and the LEA agree otherwise.

707KAR 1:300, Section 4(19)

The district conducts a reevaluation of each child or youth who is receiving special education and related services:

A. At least every three (3) years (thirty-six [36] months from the last eligibility date); B. Prior to age nine (9) if the child is identified as developmentally delayed; C. Prior to determining that a child or youth is ready for release from special education

services (i.e., no longer has a disability or has a disability but no longer requires specially designed instruction);

D. Upon parent or teacher request; E. Prior to a change in disability category; F. When considering eligibility for services in additional areas of specific learning disability

and in additional areas of speech or language impairment; or G. As conditions warrant.

This reevaluation requirement includes all children and youth with IEPs and services plans as well as those eligible children and youth in private schools who are not currently receiving services. (See Chapter 10, “Children Enrolled in Private School.”) Using information from the child tracking system (see Section II, “Child Tracking” in this chapter), the ARC chairperson/district representative at each school develops a list of those children and youth who will require a three- (3-) year reevaluation for the following year. The ARC chairperson/district representative discusses the need for reevaluation at the annual review meeting prior to the required three- (3-) year reevaluation date. In addition, reevaluations may be needed when the child or youth demonstrates significant progress or lack of progress in academic, behavioral, or social areas. When the parent or other ARC members request a reevaluation, the ARC chairperson/district representative convenes an ARC meeting to review the reasons for the request within ten (10) school days of the receipt of the request. However, a reevaluation will not be conducted more than once a year unless the parent and the district agree that the early reevaluation is necessary. The LEA shall not be required to conduct an evaluation as described in this section before the termination of a child’s eligibility due to graduation from secondary school with a regular diploma or due to exceeding the age eligibility for a free, appropriate public education. 707 KAR 1:300, Section 4(20) Prior to the ARC Meeting to Discuss the Need for a Reevaluation Prior to the ARC meeting to discuss the child’s or youth’s reevaluation needs, teachers and related- service providers collect and review existing data including, but not limited to:


A. Evaluations and information provided by the parent; B. Current classroom/curriculum-based assessments and observations; C. Classroom observations by teachers and related-service providers; D. Information contained in the current IEP or services plan, including progress data; E. Results of state accountability assessments (e.g., Commonwealth Accountability Testing

System, including Kentucky Core Content Test, Comprehensive Test of Basic Skills, and Alternate Assessment) and/or districtwide or schoolwide assessments (e.g., Stanford); and

F. Other school data (e.g., attendance records, discipline referrals, functional behavior assessments [FBAs], behavior intervention plans [BIPs], grades, health-related information).

Based on this review, the teachers, related-service providers, and, when appropriate, assessment personnel determine:

A. The validity of current data; and B. What additional data, if any, may be needed for the ARC to determine if the child or

youth continues to be a child or youth with a disability and his or her programming needs.

In determining what additional data may be needed, the reviewers should consider that the reevaluation is to be sufficiently comprehensive in order to assess all of the child’s or youth’s special education and related services needs, whether or not the area of assessment is commonly linked to the exceptionality of the child or youth. This review of existing data may be conducted without parental consent and without an ARC meeting; however, all data and recommendations must be presented to the ARC for consideration and action. ARC Meeting to Discuss Need for Reevaluation The LEA shall not be required to conduct a reevaluation, if: (a) After review of the existing data, the ARC determines: (1) A reevaluation is not necessary to determine whether the child continues to be eligible for services; and (2) A reevaluation is not warranted to determine the education or related service needs, including improved academic achievement and functional performance; and (b) The parents or teacher do not request a reevaluation. 707 KAR 1:300 Section 4(17) If, for purposes of a reevaluation, the ARC determines that no additional data are needed to determine whether the child continues to be a child with a disability and to determine the child’s educational needs, the LEA shall notify the child’s parents: (a) Of that determination and reasons for it; and (b) Of the right of the parents to request a reevaluation to determine whether, for purposes of services, the child

continues to be a child with a disability. 707 KAR 1:300 Section 4(16) At the ARC meeting to discuss the child’s or youth’s reevaluation needs, the ARC and other qualified professionals, if necessary, will review the existing evaluation data on the child or youth, including:


A. Evaluations and information provided by the parent; B. Current classroom-based assessments and observations; and C. Classroom observations by teachers and related-service providers.

On the basis of the review and input from the parents, the ARC identifies what additional data, if any, are needed to determine:

A. Whether the child or youth continues to have a disability and the educational needs of the child or youth;

B. The present levels of academic achievement and related developmental needs of the child or youth;

C. Whether the child or youth continues to need special education and related services; and D. Whether any additions or modification to the special education and related services are

needed to enable the child or youth to meet the measurable goals set out in the IEP and to participate, as appropriate, in the regular education curriculum.

The district will administer tests and other evaluation materials as needed to produce the data identified as necessary by the ARC. Parental consent for reevaluation shall not be required if the LEA can demonstrate that: (a) It made reasonable efforts to obtain such consent and followed the procedures in subsection (4) of this section of this administrative regulation to show those efforts; and (b) The parent failed to respond. 707 KAR 1:340 Section 5(7) In order to document the reasonable efforts taken by the LEA to discover the whereabouts of the parent(s), the LEA shall keep a record of its attempts which may include: (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 response received; and (c) Detailed records of visits made to the parent’s home or place of employment and the results of those visits. 707 KAR 1:340 Section 5(4) The ARC chairperson/district representative will obtain written parental consent prior to conducting any new assessment as part of a reevaluation. Parental consent is not required prior to conducting a review of existing information. If the district does not propose to administer any additional assessments to determine whether the child or youth continues to be a child or youth with a disability and to determine the child’s educational needs, the prior written notice (meeting summary) to the child’s or youth’s parent will include:

A. A statement of this fact and the reasons for it; and B. A statement of the right of the parent to request a reevaluation to determine whether the

child or youth continues to be a child or youth with a disability.


SECTION VI TEST CRITERIA Tests and other evaluation materials used to assess a child shall be: (a) Selected and administered so as not to be discriminatory on a racial or cultural basis; and (b) Provided and administered in the child’s native language or other mode of communication most likely to yield

accurate information on what the child knows and can do academically, developmentally, and functionally, unless it is clearly not feasible to do so. 707 KAR 1:300, Section 4(2)

Materials and procedures used to assess a child with limited English proficiency shall be selected and administered to ensure that they measure the extent to which the child has a disability and needs specially designed instruction and related services, rather than measuring the child’s English language skills. 707 KAR 1:300, Section 4(4) Tests shall be selected and administered so as best to ensure that if a test is administered to a child with impaired sensory, manual, or speaking skills, the test results accurately reflect the child’s aptitude or achievement level or whatever other factors the test purports to measure, rather than reflecting the child’s impaired sensory, manual, or speaking skills (unless those skills are the factors that the test purports to measure). 707 KAR 1:300, Section 4(8) When feasible, tests and evaluations are administered in the child’s or youth’s native language or his or her mode of communication that is most likely to yield accurate information on what he or she knows and can do academically, developmentally, and functionally. The ARC makes sure that evaluators make accommodations for the mode of communication and language (e.g., signing, gesturing, English, Spanish, Japanese) used by the child or youth and that results are nondiscriminatory in terms of race, culture, sex, or disability. If the child or youth uses a language other than English or uses an alternate mode of communication (e.g., Bosnian, American Sign Language [ASL]), the lead psychologist/designee arranges for an interpreter or translator to be present during the administration of tests and/or during assessment procedures. A determination that it is not feasible to administer an evaluation instrument in the native language or to conduct an assessment in the alternate mode of communication is only made if, after consultation with the Kentucky Department of Education (KDE) and each surrounding state-supported institution of higher education within Kentucky, no translator or interpreter can be found. Tests are selected and administered so as to best ensure that when a test is administered to a child or youth with impaired sensory, manual, or speaking skills, the test results accurately reflect the child’s or youth’s aptitude or achievement level or whatever other factors the test purports to measure, rather than reflecting the child’s or youth’s impaired sensory, manual, or speaking skills (unless those skills are the factors that the test purports to measure). A variety of assessment tools and strategies shall be used to gather relevant functional, developmental, and academic information about the child, including information provided by the parent, and information related to enabling the child to be involved in and progress in the general curriculum described in the Kentucky Program of Studies, 704 KAR 3:303. 707 KAR 1:300, Section 4(5) The following assessment tools and strategies may be used in the determination and implementation of a full evaluation by the ARC and the evaluators.


Regular education interventions and early childhood screenings may include screening(s), records of interventions attempted and data collected during planning, implementing, monitoring, and evaluating the child’s or youth’s response to interventions. For preschool children, this includes records of screening activities in areas such as developmental skills, vision and hearing. Record review includes evaluations and information provided by the parents, current classroom-based assessments, information from infant-toddler service providers, health/medical records, JCPS Pupil’s Cumulative Health Record, records from previous evaluations, vision and hearing screening and evaluation results, reports from other agencies, portfolios, VISI folder, cumulative file information, and other records. Interviews include interviews with parents, teachers, related-service personnel, and other caregivers as well as with the child or youth, if appropriate. The information gathered during the interview process may include educational history, social history, additional medical information, learning styles, and other data from interviews. Observations include structured observations, rating scales, ecological instruments, behavioral interventions, functional analysis of behavior and instruction, anecdotal records, adaptive behavior scales, and other observations. Tests include individual measures of ability or aptitude, performance-based assessments, norm-referenced tests, criterion-referenced achievement measures, curriculum-based assessments, and informal measures. A standardized test given to a child shall: (a) Have been validated for the specific purpose for which it is used; (b) Be administered by trained and knowledgeable personnel in accordance with any instructions provided by the

producer of the tests; and (c) Be conducted under standard conditions unless a description of the extent to which it varied from standard

conditions is documented in the evaluation report. 707 KAR 1:300, Section 4(6) Tests and other evaluation materials shall include those tailored to assess specific areas of educational need and not merely those that are designed to provide a single general intelligence quotient. 707 KAR 1:300, Section 4(7) A single procedure shall not be used as the sole criterion for determining whether a child is a child with a disability and for determining an appropriate education program for the child. 707 KAR 1:300, Section 4(9) The child shall be assessed in all areas related to the suspected disability, including, if appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities. 707 KAR 1:300, Section 4(10) The evaluation shall be sufficiently comprehensive to identify all the child’s special education and related services needs, whether commonly linked to the disability category in which the child has been classified. 707 KAR 1:300, Section 4(11) Assessments tools used shall be technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. 707 KAR 1:300, Section 4(12)


Assessments and evaluation of children with disabilities that transfer from one school district to another in the same academic year shall be coordinated with the previous and current schools as necessary and as expeditiously as possible, to ensure prompt completion of full evaluations. 707 KAR 1:300, Section 4(13) Evaluators must use a variety of assessment tools and strategies to gather relevant functional and developmental information about the child or youth, including information from the parent, information related to enabling the child or youth to be involved, and to progress in the regular education curriculum (or for a preschool child, to participate in appropriate activities). The tools and strategies must yield relevant information that directly assists in determining eligibility for services and the educational needs of the child or youth. In the case of a student who has transferred from another school district, the district shall coordinate with the student’s prior school(s) that have been involved in the evaluation process to expedite the prompt completion of the full evaluation. Criteria and Responsibilities of Evaluation Personnel The lead psychologist ensures that evaluation personnel use the district criteria to select and administer current editions of the assessment instruments. Test and procedures used by the evaluators:

A. Have been validated for the specific purpose for which they are used; B. Are not biased relative to race, culture, or socioeconomic status or impaired sensory,

manual, or speaking skills; C. Are administered by trained and knowledgeable personnel in accordance with any

instructions provided by the producer of the tests; and D. Are conducted under standard conditions unless a description of the extent to which the

conditions varied from standard conditions is documented in the evaluation report. 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. Tests are selected and administered so as to best ensure that when a test is administered to a child or youth with impaired sensory, manual, or speaking skills, the test results accurately reflect the child’s or youth’s aptitude or achievement level or whatever other factors the test purports to measure, rather than reflecting the child’s or youth’s impaired sensory, manual, or speaking skills (unless those skills are the factors that the test purports to measure). Assessment tools used are technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. The evaluator makes sure that:

A. He or she uses evaluation procedures appropriate for the age and ability level of the child or youth; and

B. Procedures selected are normed on a population that includes children and youth the same age.


When evaluating children and youth, evaluation personnel select tests and other evaluation procedures that measure and evaluate equally well all significant factors related to the learning process (e.g., cultural, language factors). Each evaluator:

A. Selects tests and other procedures according to areas assigned for evaluation by the ARC and those tests and procedures that he or she has been trained to administer;

B. Administers, scores, and interprets the tests and procedures selected according to the instructions specified in the test manuals or through training for each test or procedure;

C. Makes sure that tests are not administered to children and youth whose age, disability, linguistic skills, or cultural background is outside the range of the evaluator’s training or experience; and

D. Describes any modification of standard test-administration procedures or scoring and describes regarding the possible effects of such modifications on validity.

The lead psychologist makes sure that evaluation personnel conduct evaluations only in the areas for which they are qualified in terms of Kentucky certification and/or state licensure requirements. The lead psychologist makes sure that each person administering and interpreting evaluation procedures and instruments meets the training specifications stated in the test administration manual. Evaluation personnel are trained in:

A. Specific areas of evaluation of children and youth with disabilities; B. The specific evaluation procedures used with children and youth with disabilities; C. The use of the procedures for the purpose intended by the developer; D. Using the procedures with the individuals for whom the procedures’ reliability and

validity are empirically supported; and E. The selection and administration of evaluation procedures so that impaired motor,

emotional, communication, or sensory skills or cultural differences do not interfere with the evaluation of other skills and abilities.

When cognitive or intellectual evaluation is obtained through contract with an independent evaluator, the lead psychologist makes sure that the evaluation is conducted by persons who are certified or licensed to conduct such assessments by the State Board of Psychology. Copies of the certificates or licenses of the independent evaluator providers are obtained by the lead psychologist and kept on file in his or her office prior to the establishment of the contract. Tests are scored and interpreted correctly. If district personnel find that a test has been scored or interpreted incorrectly, district personnel immediately correct the error and the implications of the error. (See procedures for completing the written report in this section.) Disproportionality District personnel use tests, materials, and processes that are racially and culturally sensitive. If apparently valid and reliable testing and evaluation materials appear to have led to the over-


representation or under-representation of children and youth who are members of a particular race, socioeconomic level, national origin, or cultural group in any category of disability, then the district conducts a self-evaluation. The self-evaluation is under the direction of the executive director of ECE, and may include:

A. Determining whether additional or substitute materials and procedures that have at least equal predictive validity but do not over-identify members of a particular racial, national origin, or cultural group, can be identified; and

B. Taking any actions to evaluate this effect and to eliminate or overcome racial or cultural insensitivity, which results from: 1. The use of tests that have inherent content or language bias; 2. The use of tests that lack validity for a group of persons with whom they are used; 3. The use of tests that lack reliability for a group of persons with whom they are used; 4. The administration of evaluation procedures by evaluators who are not trained or

experienced in evaluating children and youth of a particular culture and linguistic background;

5. The child’s or youth’s unfamiliarity with test behaviors and assumptions; 6. The child’s or youth’s discomfort with the test administrator or testing environment;

or 7. The failure to integrate evaluation information from multiple sources or to reconcile

inconsistent or conflicting evaluation results. Written Evaluation Report The evaluation data obtained and used by the ARC to determine eligibility and plan an appropriate program are documented in the form of a written report(s). The report(s), which is written in language that is understandable to the ARC members, synthesizes the results of each procedure and instrument used in the individual assessment. The ARC makes sure that the written report(s) includes each procedure and instrument from the full and individual evaluation of the child or youth. The written report is used by the ARC to:

A. Validate the specific disability and educational needs of the child or youth; B. Determine the need for special education and related services; and C. Guide instructional planning.

The written report(s) of the evaluation data used and interpreted by the ARC for determining eligibility and planning an appropriate program may include:

A. Child identification information (e.g., name, parent, phone, date of birth, grade, school); B. A comparison and interpretation of the performance of the child or youth to similar-age

peers in areas as previously directed by the ARC; C. The full name of all instruments and procedures used, the date each was administered and

by whom and departures from standard test administration procedures and the reasons for those departures;

D. Data and sources from standardized, norm-referenced measures, which: 1. Include percentiles and standard scores and not solely grade or age equivalents;


2. Are reported with confidence intervals; and 3. Are in a form that allows for inter-test comparisons (e.g., standard scores);

E. Data from all informal measures, including: 1. Results of interventions tried before referral; and 2. A summary of behaviors noted during the observations of the child or youth;

F. An explanation of any discrepancies among evaluation results (e.g., between formal test results and the customary behaviors and daily activities of the child or youth);

G. Statements about the unique or individual differences of the child or youth related to the educational environment and success in the regular education curriculum;

H. Statements about specific classroom tasks or contexts that are unique to the child or youth (e.g., error pattern analysis, learning style or learning preferences, incentive or motivational style, communication and interpersonal skills);

I. Statements about other factors that have an impact on the educational performance of the child or youth (e.g., medical, environmental, cultural, linguistic, or economic factors);

J. Descriptions of the types of activities that might effectively meet the unique educational needs of the child or youth; and

K. A list of the names and professional roles of all evaluators. Upon completion of all of the evaluations, a member of the multidisciplinary team who is knowledgeable about the evaluation procedures used with the child or youth and is familiar with the results of the evaluation collects the various evaluation reports from each member of the multidisciplinary team and delivers them to the ARC chairperson/district representative. The ARC chairperson/district representative determines the members of the ARC and schedules a meeting to review the evaluation results and to determine eligibility. The ARC chairperson/district representative provides notice to the parent according to procedures in Chapter 7, “Procedural Safeguards and State Complaint Procedures”. The sixty (60) day school timeline shall not apply in the following situations: (a) If the child moves to a new LEA after consent for the initial evaluation is given but before the evaluation can be

completed, as long as the new LEA is making sufficient progress to complete the evaluation and the parent and the LEA agree to a specific time when the evaluation shall be completed; or evaluation and the parent and the LEA agree to a specific time when the evaluation shall be completed; or

(b) If the parent repeatedly fails or refuses to produce the child for evaluation. 707 KAR 1:320, Section 2(5) For children and youth who enroll in the district during the process of an initial evaluation, follow the procedures in Section II, “Admissions and Release Committee Meetings” of Chapter 5. Section VII Summary of Academic Achievement and Functional Performance For students who graduate or age out of the program, the LEA shall provide the child with a summary of the child’s academic achievement and functional performance including recommendations on how to assist the child in meeting the child’s postsecondary goals. 707 KAR 1:300, Section 4(21) For procedures related to the summary of academic achievement and functional performance, refer to Section II, “Change in Placement/Services” of Chapter 6.



APPENDIX A

Child Find Notice

All children can learn, but some learn differently. Some children need more help than others because they have a disability. We can help by accepting individual differences at home, at work, and at school. The Jefferson County Public School (JCPS) District urges you, through Child Find, to give every child a chance to learn. If you have or know of an infant, toddler, child, or youth who has a disability and is not getting the special help he or she needs, please contact the JCPS Exceptional Child Education Office.

Let us help; show you care. Call 485-3170.

4: Eligibility 1

CHAPTER 4 DETERMINATION OF ELIGIBILITY

707 KAR 1:310 SECTION I ARC PROCESS Upon analysis of intervention and assessment data, the ARC* shall determine whether the child is a child with a disability as defined in Section 1(9) of 707 KAR 1:002 to the extent that specially designed instruction is required in order for the child to benefit from education. An LEA† shall provide a copy of the evaluation report and the documentation of determination of eligibility to the parent. 707 KAR 1:310, Section 1(1) The Admissions and Release Committee (ARC) is responsible for reviewing all intervention and assessment data, considering the validity of all data, and making eligibility decisions. These eligibility decisions are based on the following questions: Step 1: Does the child or youth have a disability that meets the criteria as defined in a disability

definition; and Step 2: Do the effects of the disability cause such an impact (adverse effect) that the child or youth

must receive specially designed instruction in order to benefit from his or her education; and

Step 3: Is the influence of each determinant factor, if present, found to be of minimal influence so that the child or youth meets eligibility requirements when all other criteria are applied?

Upon receipt of the evaluation report(s), the ARC chairperson/district representative selects members of the ARC in accordance with Chapter 5, “Individual Education Program” (IEP). An ARC meeting is scheduled to:

A. Discuss the evaluation information; B. Determine the presence of a disability; C. Assess the impact of the disability on educational performance; D. Validate the effect of any specified determinant factors; and E. Develop the IEP, if appropriate.

A child or youth will not be determined to be eligible if the determinant factor for that eligibility determination is a lack of instruction in reading (including the essential components of reading instruction), math, or limited English proficiency and if the child or youth does not otherwise meet eligibility criteria. If a determination is made that a child has a disability and needs special education and related services, an IEP shall be developed for the child. 707 KAR 1:310, Section 1(6) The IEP may be developed at this meeting in accordance with procedures and timelines in Chapter 5, “Individual Education Program” and Chapter 7, “Procedural Safeguards and State Complaint

* Admissions and Release Committee (ARC) † local educational agency (LEA) which means the Jefferson County Public School (JCPS) District

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Procedures”. The ARC chairperson/district representative describes the decision-making process for eligibility determination and possible IEP development. The process includes the following steps:

A. Review and analyze all intervention data and assessment procedures, tests, records, and reports from the full and individual evaluation;

B. Compare results of evaluation data with the eligibility criteria of the suspected disability to determine the presence of a disability (Step 1);

C. If a disability is confirmed, determine the adverse effect of the disability upon educational performance (Step 2);

D. Specify the influence of relevant determinant factors (Step 3); E. Complete eligibility determination form(s) to document ARC decisions; and F. If eligibility is confirmed, develop the IEP.

In making eligibility determinations, an LEA shall draw upon information from a variety of sources, which may include: (a) Response to scientific, research-based interventions; (b) Vision, hearing, and communication screenings; (c) Parental input; (d) Aptitude and achievement tests; (e) Teacher recommendations; (f) Physical condition; (g) Social or cultural background; (h) Adaptive behavior; or (i) Behavior observations An LEA shall ensure that information obtained from these sources, as appropriate for each student, is documented and carefully considered. 707 KAR 1:310, Section 1 (3-4) The specific data that must be available to make a disability determination may vary based on the requirements as stated in each disability definition and the evaluation information requested by the ARC. The ARC does not determine that a child or youth is eligible until a full and individual evaluation is completed according to procedures in Chapter 3, “Child Find, Evaluation and Reevaluation.” After a full and individual evaluation is completed according to procedures in Chapter 3, “Child Find, Evaluation, and Reevaluation,” the ARC compares and analyzes all intervention data and assessment information and documents interpretation of the results on the appropriate district eligibility determination form. The documentation of a determination of eligibility includes discussion of intervention and assessment data, the ARC’s decisions about the student’s eligibility as a child or youth with a disability, and a statement of proposed or refused action. The eligibility determination form completed by the ARC and the meeting summary constitute the required documentation. If the ARC determines that a child or youth does not have a disability, if the ARC cannot determine

4: Eligibility 3

adverse effect, or if the ARC cannot conclude that the influence of specified determinant factors (if present) is minimal, then the ARC prepares a written explanation of why the child or youth is not eligible to receive special education and related services. This explanation includes a description of the information and evaluation data used as the basis for the decision. The eligibility determination form completed by the ARC and the meeting summary constitute the required documentation. The ARC chairperson/district representative gives the parent written notice of the proposed or refused action(s) (the meeting summary and all attachments) and a copy of the evaluation report(s). A copy of the evaluation report is provided to the parent, if requested, prior to the ARC meeting to determine eligibility. Sufficient/Insufficient Evaluation Information The evaluation shall be sufficiently comprehensive to identify all the child’s special education and related services needs, whether commonly linked to the disability category in which the child has been classified. 707 KAR 1:300, Section 4(11) Evaluation information is determined sufficient if:

A. Multiple nondiscriminatory methods or measures were used to evaluate the areas of concern previously specified by the ARC;

B. Data on family, environmental, and cultural factors are available for analysis to assist in the determination of the impact on educational performance;

C. Referral data and additional information document the present levels of academic achievement and related developmental needs, including how the disability affects the child’s or youth’s involvement and progress in the regular education curriculum;

D. Information given provides objective and reliable indicators of the child’s or youth’s performance;

E. The documentation of the evaluation information is complete and reflects the information collected by the multidisciplinary team in all areas related to the suspected disability.

If the ARC determines that the available evaluation information is not sufficient to verify whether the child or youth is disabled and needs special education and related services, the ARC obtains additional evaluation information. The ARC members agree on what additional evaluation information is needed. The ARC members agree upon a convenient date, location, and time to continue the meeting to complete the eligibility determination. The reconvened meeting is scheduled and held according to procedures and timelines in Chapter 7, “Procedural Safeguards and State Complaint Procedures.” SECTION II DETERMINATION OF ELIGIBILITY Step 1: Presence of a Disability The ARC makes a determination of the presence of a disability through a careful analysis of evaluation data and a comparison with the eligibility criteria of the suspected disability. The definition of each disability follows in Section III, “Categories of Disabilities” of this chapter.

4 4: Eligibility

Step 2: Adverse Effect of Disability on Educational Performance “Adverse effect” means that the progress of the child is impeded by the disability to the extent that the educational performance is significantly and consistently below the level of similar age peers. 707 KAR 1:002, Section 1(2) If the child or youth meets the eligibility criteria in an area(s) of a disability as specified in these procedures, then the ARC documents its interpretation of evaluation information and determines whether or not the disability adversely affects the educational performance of the child or youth. The ARC determines there is an adverse effect if:

A. The disability impedes progress to the extent that educational performance is significantly and consistently below that of similar-age peers;

B. The disability interferes with acquiring, developing, understanding, or applying knowledge or skills needed to be included in and progress in the Kentucky Program of Studies, 704 KAR 3:303; and

C. The disability affects the student to the degree that unique or different instructional services (specially designed instruction) not ordinarily used with children and youth of a similar age must be used for the child or youth with a disability in order for him or her to benefit from his or her educational program.

Step 3: Determinant Factors A child shall not be determined to be eligible if the determinant factor for that eligibility determination is: (a) A lack of appropriate instruction in reading, including the essential components of reading instruction as established in the Elementary and Secondary Education Act, 20 U.S.C. Section 6301; (b) A lack of appropriate instruction in math; or (c) Limited English proficiency and the child does not otherwise meet eligibility criteria. 707 KAR 1:310, Section 1(2) Determinant Factors Pertinent to Each Disability Area Appropriate instruction in reading and math and limited English proficiency must be considered for every disability. The appropriate determinant factors must be considered for each disability area as outlined in Section III, “Categories of Disabilities” of this chapter. In order for the child or youth to be determined to be a child or youth with a disability, the ARC must conclude that the influence of the determinant factor(s), if present, is minimal and that the child or youth does meet eligibility requirements when all other criteria are applied. Evaluation data presented to the ARC must address the following factors and must enable the ARC to reach a conclusion concerning each factor for every disability category:

A. Is the lack of acceptable progress in the regular education curriculum caused or explained by a lack of instruction in reading — including the essential components of reading as established by No Child Left Behind (NCLB) — that is appropriate for the child’s or youth’s age and ability levels; and

B. Is the lack of acceptable progress in the regular education curriculum caused or explained

4: Eligibility 5

by a lack of instruction in math that is appropriate for the child’s or youth’s age and ability levels; and

C. Is the lack of acceptable progress in the regular education curriculum caused or explained by the child’s or youth’s limited English proficiency?

If the ARC answers “yes” to any of these questions, then the child or youth does not have a disability that requires the provision of special education and related services. The consideration of eligibility for special education and related services is concluded. If the ARC answers “no” to all three (3) of these questions, then the ARC, after similar consideration of any other determinant factors for the specific disability, determines that the child or youth is eligible as a child or youth with a disability to receive special education and related services. Appropriate Learning Experiences in Reading and Math The ARC reviews all relevant data including, but not limited to, educational history and interventions for determining if the child or youth is being provided with appropriate instruction and learning experiences for the student’s age and ability levels in reading (including the essential components of reading) and in math. If it is determined that the child or youth is not being provided with appropriate instruction, the determination will include whether any absence of such instruction explains or causes the student to achieve at a level that is not commensurate with his or her age and ability levels. A child or youth who has been evaluated as having a disability and who, because of that disability, needs special education and related services cannot be excluded because that child or youth also lacks learning experiences appropriate for the student’s age and ability levels in reading and math. Conversely, if the child or youth has not been provided with learning experiences that are appropriate for the student’s age and ability levels in reading and math, the ARC, in determining the presence of a disability, must verify that the lack of instruction is not the predominant factor in the student’s lack of reading or math performance that is commensurate with his or her age and ability levels. Limited English Proficiency The ARC must ensure that a child or youth with limited English proficiency is not evaluated on the basis of criteria that essentially measure English language skills. When a child or youth is not English-proficient, the ARC chairperson/district representative will assign responsibility for determining whether:

A. The child or youth is able to respond to tests and assessment procedures as expected for a child or youth who is English-proficient;

B. Test modifications or test selection and administration in the student’s native language is required to most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally; or

C. The child or youth is not currently testable using the district, surrounding state-supported institutions of higher education, and other resources.

If an evaluation is conducted, evaluators will document whether the results of tests and other assessment procedures used to determine eligibility can or cannot be explained or caused by the

6 4: Eligibility

student’s limited English proficiency. A child or youth who has been evaluated as having a disability and who, because of that disability, needs special education and related services cannot be excluded because that child or youth also has limited English proficiency. Limited English proficiency alone, with no determined area of disability, is not sufficient for the ARC to determine that the child or youth has a disability that requires special education and related services. If collected evaluation data support the presence of one or more determinant factors, the eligibility determination form and the meeting summary document the ARC discussion of the factor(s). Disproportionality District personnel use tests, materials, and processes that are racially and culturally sensitive. If apparently valid and reliable testing and evaluation materials appear to have led to the over-representation or under-representation of children or youth who are members of a particular race, socioeconomic level, national origin, or cultural group in any category of children with disabilities, then the district conducts a self-evaluation under the direction of the executive director of Exceptional Child Education (ECE). For further information, see Section V, “Test Criteria” of Chapter 3. SECTION III CATEGORIES OF DISABILITIES Autism “Autism” means a developmental disability significantly effecting verbal and nonverbal communication and social interaction, generally evident before age three (3) that adversely affects a child’s educational performance. 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 shall not apply if a child’s educational performance is adversely affected primarily because the child has an emotional-behavior disability. 707 KAR 1:002, Section 1(5) According to procedures in Section I and Section II of this chapter, the ARC determines that a child or youth has autism when:

A. Evaluation information verifies that the child or youth has a developmental disability generally evident before age three (3). This developmental disability significantly affects: 1. Verbal and nonverbal communication; and 2. Social interaction.

B. Evaluation information documents if any of the following characteristics often associated with autism are present: 1. Engagement in repetitive activities and stereotyped movements; 2. Resistance to environmental change or change in daily routines; or 3. Unusual responses to sensory experiences.

C. Evaluation information shows that the disability adversely affects educational performance; and

D. Documentation exists to support that the deficits are not primarily the result of an emotional-behavioral disability (EBD).

4: Eligibility 7

Deaf-Blindness “Deaf-Blindness” means concomitant hearing and visual impairments that have an adverse effect on the child’s education performance, the combination of which causes severe communication and other developmental and educational needs that cannot be accommodated in special education programs solely for children with deafness or children with blindness, unless supplementary assistance is provided to address educational needs resulting from the two (2) disabilities. 707 KAR 1:002, Section 1(21) According to procedures in Section I and Section II of this chapter, the ARC determines that a child or youth is deaf-blind when:

A. Evaluation information collected across multiple settings verifies that: 1. The child or youth has a hearing impairment; (See “Hearing Impairment” in this

section.) and 2. The child or youth has a visual impairment. (See “Visual Impairment” in this

section.) B. The combination of the two impairments causes such severe communication,

developmental, and educational needs that the child or youth cannot be accommodated in special education programs designed solely for children with visual or hearing impairments, unless supplementary assistance is provided to address educational needs resulting from the two disabilities; and

C. Evaluation information shows that the disability adversely affects educational performance. Developmental Delay “Development delay” or “DD” means that a child within the ages of three (3) through eight (8) has not acquired skills, or achieved commensurate with recognized performance expectations for his age in one (1) or more of the following developmental areas: cognition, communication, motor development, social-emotional development, or self-help-adaptive behavior. Developmental delay includes a child who demonstrates a measurable, verifiable discrepancy between expected performance for the child’s chronological age and current level of performance. The discrepancy shall be documented by: (a) Acores of two (2) standard deviations or more below the mean in one (1) of the areas listed above as obtained using

norm-referenced instruments and procedures; (b) Scores of one and one-half (1½) standard deviations below the mean in two (2) or more of the areas listed above

using norm-referenced instruments and procedures; or (c) The professional judgment of the ARC that there is a significant atypical quality or pattern of development.

Professional judgment shall be used only where normed scores are inconclusive and the ARC documents in a written report the reasons for concluding that a child has a developmental delay. 707 KAR 1:002, Section 1(22)

According to procedures in Section I and Section II of this chapter, the ARC determines that a child has a developmental delay (DD) when:

A. The child is three (3) through eight (8) years of age; B. The child has not acquired skills that are commensurate with recognized performance

expectations for his or her age in one or more of the following developmental areas: 1. Cognition 2. Motor development 3. Self-help/Adaptive behavior 4. Communication

8 4: Eligibility

5. Social-emotional development C. The child demonstrates a measurable, verifiable difference between expected level of

performance and current level of performance. This difference is documented by: 1. Scores of two (2) standard deviations or more below the mean in one (1) or more of

the five (5) developmental areas listed above using norm-referenced instruments and procedures; or

2. Scores of 1.5 standard deviations below the mean in two (2) or more of the five (5) developmental areas listed above using norm-referenced instruments and procedures; or

3. The professional judgment of the ARC, which verifies the existence of significant atypical quality or pattern of development when normed scores are inconclusive.

D. Evaluation information shows that the disability adversely affects educational performance.

The use of a professional-judgment standard is limited to situations in which normative scores are inconclusive. The eligibility determination form provides written documentation of the data used and justifies the use of professional judgment in the determination of a developmental delay. Emotional-Behavioral Disability “Emotional-behavioral disability” or “EBD” means that a child, when provided with interventions to meet instructional and social-emotional needs, continues to exhibit one (1) or more of the following, when compared to the child’s peer and cultural reference groups, across settings, over a long period of time and to a marked degree: 1. Severe deficits in social competence or appropriate behavior which cause an inability to build or maintain

satisfactory interpersonal relationships with adults or peers; 2. Severe deficits in academic performance which are not commensurate with the student’s ability level and are not

solely a result of intellectual, sensory, or other health factors but are related to the child’s social-emotional problem; 3. A general pervasive mood of unhappiness or depression; or 4. A tendency to develop physical symptoms or fears associated with personal or school problems. This term does not apply to children who display isolated (not necessarily one [1]) inappropriate behaviors that are the result of willful, intentional, or wanton actions unless it is determined through the evaluations process that the child does have an emotional-behavioral disability. 707 KAR 1:002, Section 1(24) According to procedures in Section I and Section II of this chapter, the ARC determines a child or youth has an emotional-behavioral disability (EBD) when:

A. The child or youth is provided with interventions to meet instructional and social-emotional needs but continues to exhibit one or more of the following when compared to the his or her peer and cultural reference groups: 1. Severe deficits in social competence or appropriate behavior, which cause an inability

to build or maintain satisfactory interpersonal relationships with adults or peers; 2. Severe deficits in academic performance, which are not commensurate with the

child’s or youth’s ability level and are not solely a result of intellectual, sensory, or other health factors but are related to the child’s or youth’s social-emotional problems;

3. A general pervasive mood of unhappiness or depression; 4. A tendency to develop physical symptoms or fears associated with personal or school

4: Eligibility 9

problems. B. Compared to peer and cultural norms, the child or youth continues to exhibit severe

deficits in social competence or academic performance: 1. To a marked degree (severe in terms of frequency, duration, and intensity); 2. Across multiple settings; and 3. Over a long period of time.

C. The severe deficit in social competence, appropriate behavior, and academic performance is not the result of isolated inappropriate behaviors that are the result of willful, intentional, or wanton actions;

D. Evaluation information shows that the disability adversely affects educational performance.

A comprehensive evaluation must be conducted, and it must be determined that the child or youth does have an EBD in order to then consider the determinant factor that is specific only to this disability. The influence of other determinant factors must also be evaluated by the ARC. See Step 3, “Determinant Factors” in Section II, “Determination of Eligibility” in this chapter. Data should indicate that systematic behavioral interventions were implemented with the child or youth over an extended time; four (4) school months is recommended with the exception of behaviors that are dangerous to one’s self or others. During the intervention process, data should support that staff completed the following steps:

A. Analyzed the relationship between problem behaviors and the environmental setting, events, and actions (e.g., determined if there is a time, place, or person that seemed to decrease the behavior);

B. Analyzed the purpose or function that the behavior(s) served in meeting the child’s or youth’s needs (e.g., determined if the purpose of the behavior was to gain attention, to escape or avoid a task/activity, to get something, or to gain power);

C. Designed appropriate instruction to teach replacement behaviors (e.g., teaching another appropriate behavior or skill to meet the purpose of the inappropriate behavior(s) through such methods as prosocial skill training, anger-management training, anger-replacement training);

D. Designed appropriate behavior-management interventions that provided correction without allowing inappropriate behavior to be reinforced (e.g., implementing positive reinforcement within a structured and consistent environment); and

E. Modified the interventions based on ongoing data collection. Evaluation information is needed to confirm whether isolated (not necessarily one) inappropriate behaviors that are the result of willful, intentional, or wanton actions were or were not the determinant factor in the eligibility decision. If such behaviors are so documented and were in fact the determinant factor in the eligibility decision, then the child or youth cannot be determined to have an emotional-behavioral disability. However, these behaviors, if present, may be determined by the ARC to be of lesser influence; if the child or youth meets all other eligibility criteria, the child or youth is then determined by the ARC to be a child or youth with an EBD. Required data must validate performance levels in social competence, academic performance, and

10 4: Eligibility

intellectual ability. Additional data may be in the form of observations, teacher recommendations, and health and social-developmental information. According to procedures, the ARC determines that a child or youth has an EBD if a compilation of previous and current behavioral, academic, and intervention data verifies that:

A. When compared to peer and cultural norms, the child or youth continues to exhibit severe deficits in social competence: 1. To a marked degree, which means that the emotional-behavioral area of concern is

severe in terms of: a) “Frequency” — the number of times the behavior occurs over a given period of

time; b) “Duration” — the average length of time that the child or youth engages in the

behavior; and c) “Intensity” — the relative force, loudness, or intrusiveness of the behavior; and

2. Across settings, which means that the evaluation data demonstrate how the behavior of the child or youth within the total school environment and community (across classrooms, instructional groups, nonacademic and extracurricular groups, and community-based activities) affects his or her educational performance; and

3. Over a long period of time, which means the emotional-behavioral area of concern has been evident for a minimum of four (4) to six (6) months; (this time frame is intended to rule out short-term situational crises and single incidents, with the exception of behaviors that are dangerous to one’s self or others); and

4. After appropriate academic and behavioral interventions have proven ineffective; B. If any deficit in social competence is identified, then the deficit is to the extent that it

impairs personal relationships with peers or adults and it is clearly indicated that the behavior deviates from the standards for the appropriate peer and cultural reference groups;

C. If any deficit in academic performance is identified, then the deficit is to the extent that it impairs development, mastery, and application of skills and knowledge and is related to social-emotional problems of the child or youth and is not solely a result of intellectual, sensory, or other health factors;

D. A general pervasive mood of unhappiness or depression exist; or E. A tendency to develop physical symptoms or fears associated with personal or school

problems is present. Hearing Impairment “Hearing impairment ”,sometimes referred to as “deaf” or “hard of hearing”, means a hearing loss that: (a) May be mild to profound, unilateral or bilateral, permanent or fluctuating, and is determined by: (1) An average pure-tone hearing loss in the speech range (500 Hz, 1000 Hz, and 2000 Hz) of at least 25 dB in the better ear; (2) An average pure-tone hearing loss in the high-frequency range (2000 Hz, 4000 Hz, and 6000 Hz) of at least 45 dB in the better ear; or (3) An average pure-tone unilateral hearing loss in the speech range (500 Hz, 1000 Hz 2000 Hz) of at least 60dB in the impaired ear; and (b) Results in difficulty processing linguistic information through hearing; and (c) Has an adverse effect on the child’s educational performance. 707 KAR 1:002, Section 1(29)

4: Eligibility 11

According to procedures in Section I and Section II of this chapter, the ARC determines that a child or youth has a hearing impairment (HI) when:

A. Evaluation indicates a hearing loss that may be mild to profound, unilateral or bilateral, permanent or fluctuating. The hearing loss is determined by: 1. An average pure-tone hearing loss in the speech range (500 Hz, 1000 Hz, and 2000

Hz) of at least 25 dB in the better hear; 2. An average pure-tone hearing loss in the high-frequency range (2000 Hz, 4000 Hz,

and 6000 Hz) of at least 45 dB in the better ear; or 3. An average pure-tone unilateral hearing loss in the speech range (500 Hz, 1000 Hz,

and 2000 Hz) of at least 60 dB in the impaired ear; and B. Evaluation indicates that deficits exist in his or her ability to process linguistic

information through hearing; and C. Evaluation information shows that the hearing loss adversely affects educational

performance. Mental Disability “Mental disability” means that a child has one (1) of the following: (a) a mild mental disability (MMD) in which: 1. cognitive functioning is at least two (2) but no more than three (3) standard deviations below the mean; 2. adaptive behavior deficit is at least two (2) standard deviations below the mean; 3. a severe deficit exists in overall academic performance including acquisition, retention, and application of

knowledge; and 4. manifestation is typically during the developmental period; or (b) a functional mental disability (FMD) in which: 1. cognitive functioning is at least three (3) or more standard deviations below the mean; 2. adaptive behavior deficits are at least three (3) or more standard deviations below the mean; 3. a severe deficit exists in overall academic performance including acquisition, retention, and application of

knowledge; and 4. manifestation is typically during the developmental period. 707 KAR 1:002, Section 1(37) Mild Mental Disability According to procedures in Section I and Section II of this chapter, the ARC determines that a child or youth has a mild mental disability (MMD) when:

A. Evaluation information shows the following: 1. His or her cognitive functioning is at least two (2) standard deviations but not more

than three (3) standard deviations below the mean; 2. His or her adaptive behavior is at least two (2) standard deviations below the mean; 3. He or she has a severe deficit in overall academic performance, including acquisition,

retention, and application of knowledge; and 4. The disability is typically manifested during the developmental period;

B. Evaluation information shows that the disability adversely affects educational performance.

12 4: Eligibility

Functional Mental Disability According to procedures in Section I and Section II of this chapter, the ARC determines that a child or youth has a functional mental disability (FMD) when:

A. Evaluation information shows the following: 1. His or her cognitive functioning is at least three (3) or more standard deviations

below the mean; 2. His or her adaptive behavior is at least three (3) or more standard deviations below

the mean; 3. He or she has a severe deficit in overall academic performance, including acquisition,

retention, and application of knowledge; and 4. The disability is typically manifested during the developmental period;

B. Evaluation information shows that the disability adversely affects educational performance.

Use of Standard Error of Measure In making a determination under the category of mental disability, the ARC may apply a standard error of measure, if appropriate. 707 KAR 1:310, Section 1(5) Use of the applicable standard error of measurement, which is rarely used, enables the ARC to take into account test score error; this is especially important when the intelligence score is near a critical cutoff point. Care must be exercised to:

A. Distinguish the standard error of measurement for the appropriate age group listed in the test manual from the listed table values for confidence intervals; and

B. Ensure that the adjusted score is used in combination with other evaluation data and not in isolation. The composite of evaluation data must support the eligibility decision.

When using the applicable standard error of measure, the psychologist is in attendance and assists the ARC in making the individualized judgments that are required to achieve sound eligibility decisions. Multiple Disabilities “Multiple disabilities” or “MD” means concomitant impairments that have an adverse effect on the child’s educational performance, the combination of which causes severe educational needs that cannot be accommodated in special education programs solely for one of the impairments. Examples of MD include mental disability-blindness, mental disability-orthopedic impairment. Multiple disabilities does not mean deaf-blindness nor does it mean a speech or language impairment in combination with another category of disability. 707 KAR 1:002, Section 1(39) According to procedures in Section I and Section II of this chapter, the ARC determines that a child or youth has multiple disabilities (MD) when:

A. The child or youth has a combination of two (2) or more of the following disabilities: 1. Autism;

4: Eligibility 13

2. Emotional-behavioral disability; 3. Hearing impairment; 4. Mental disability (mild or functional); 5. Orthopedic impairment or physical disability; 6. Other health impaired; 7. Specific learning disability; 8. Traumatic brain injury; 9. Visual impairment;

10. Deaf/blindness B. The child’s or youth’s disability is not solely a combination of deafness and blindness; C. The child’s or youth’s disability is not a combination of a speech or language impairment

and one other disabling condition; and D. The combination of these disabilities causes such severe educational needs that they

cannot be accommodated through special education programs solely for one impairment. Eligibility criteria must be substantiated by evaluation data for each separate disability. In addition, data is required regarding the effects of the combination of these disabilities, including the child’s or youth’s inability to profit from a program designed for only one of the disabilities. Other Health Impaired “Other health impairment” or “OHI” means having limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the education environment, that: (a) is due to a chronic or acute health problem such as acquired immune deficiency syndrome, asthma, attention deficit

disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, Tourette syndrome, or tuberculosis; and

(b) adversely affects a child’s educational performance. 707 KAR 1:002, Section 1(42) According to procedures in Section I and Section II of this chapter, the ARC determines that a child or youth has a disability of other health impaired (OHI) when:

A. A current, educationally relevant medical evaluation completed by a licensed physician verifies: 1. The existence of a health impairment caused by chronic or acute health problems,

such as a heart condition, tuberculosis, sickle cell anemia, hemophilia, epilepsy, rheumatic fever, nephritis, asthma, attention deficit disorder (ADD), attention deficit hyperactivity disorder (ADHD), lead poisoning, leukemia, diabetes, or acquired immune deficiency syndrome (AIDS);

2. The effect of the impairment on: a) Strength; b) Vitality; or c) Alertness (including heightened alertness to environmental stimuli that results in

limited alertness with respect to the educational environment); B. Current, educationally relevant evaluation information verifies the impact of the

impairment on instructional tolerance, stamina, fine-motor and gross-motor skills, locomotion, or academic performance;

C. Evaluation information shows that the disability adversely affects educational

14 4: Eligibility

performance. Orthopedic Impairment or Physically Disabled “Orthopedic impairment” or “OI” means a severe orthopedic impairment that adversely affects a child’s education performance. The term includes an impairment caused by a congenital anomaly such as clubfoot or absence of some member, an impairment caused by disease such as poliomyelitis or bone tuberculoses, and an impairment from other causes such as cerebral palsy, amputations, and fractures or burns that causes contractures. 707 KAR 1:002, Section 1(41) According to procedures in Section I and Section II of this chapter, the ARC determines that a child or youth has an orthopedic impairment (OI) or is physically disabled (PD) when:

A. A current, educationally relevant medical evaluation that is completed by a licensed physician verifies the existence of an impairment caused by: 1. A congenital anomaly, such as spina bifida or absence of member; 2. A disease, such as poliomyelitis or bone tuberculosis; or 3. Other causes, such as cerebral palsy, amputations, fractures, or burns that

cause contractions; B. Current, educationally relevant evaluation information verifies the impact of the

impairment, such as its impact on fine-motor and gross-motor skills, locomotion, or academic performance; and

C. Evaluation information shows that the disability adversely affects educational performance.

The ARC determines that an educationally relevant medical evaluation completed by a licensed physician verifies:

A. The existence of a severe orthopedic or physical impairment caused by a congenital anomaly, disease, injury, or accident;

B. The diagnosis and nature of the impairment; and C. Any limitations resulting from the impairment.

In addition, current, educationally relevant evaluation information is needed to verify the impact of the impairment on areas such as fine-motor and gross-motor skills, locomotion, physical education, or academic performance. Specific Learning Disabilities “Specific learning disability” or “LD” means a disorder that adversely affects the ability to acquire, comprehend or apply reading, mathematical, writing, reasoning, listening, or speaking skills to the extent that specially designed instruction is required to benefit from education. The specific learning disability (LD) may include dyslexia, dyscalculia, dysgraphia, developmental aphasia, and perceptual/motor disabilities. The term does not include deficits that are the result of other primary determinant or disabling factors such as vision, hearing, motor impairment, mental disability, emotional-behavioral disability, environmental or economic disadvantaged, cultural factors, limited English proficiency, or lack of relevant research-based instruction in the deficit area. 707 KAR 1:002, Section 1 (59)

4: Eligibility 15

Additional ARC Membership and Qualifications The determination of whether a child suspected of having a specific learning disability is a child with a disability and whether the specific learning disability adversely affects educational performance shall be considered by the child’s ARC. The ARC shall also include other professionals, relative to the area(s) of concern, such as a school psychologist, speech-language pathologist, or educational specialist. Any ARC convened to discuss a child with a suspected or documented specific learning disability shall be collectively qualified to: (a) Conduct, as appropriate, individual diagnostic assessments in the areas of speech/language, academic achievement, intellectual development, or social-emotional development; (b) Interpret assessment and intervention data and apply critical analysis to that data; (c) Develop appropriate educational and transitional recommendations based on the assessment data; and (d) Deliver and monitor specially designed instruction and services to meet the needs of a child with a specific learning disability. 707 KAR 1:310, Section 2 (1-2) Criteria for Determination of Specific Learning Disability The ARC may determine a child has a specific learning disability if: (a) 1. The child is provided with learning experiences and instruction appropriate for the child's age or state-approved

grade level standards aligned with the Kentucky Program of Studies, 704 KAR 3:303; and 2. The child does not achieve adequately for the child's age or grade level standards aligned with the Kentucky Program of Studies, as indicated on multiple data sources, as appropriate, in one or more of the following areas:

(a) Oral expression; (b) Listening comprehension; (c) Written expression; (d) Basic reading skills; (e) Reading fluency skills; (f) Reading comprehension; (g) Mathematics calculation; or (h) Mathematics reasoning; (b) The child fails to achieve a rate of learning to make sufficient progress to meet grade level standards aligned with

the Kentucky Program of Studies, 704 KAR 3:303 in one or more of the areas identified in subparagraph (3)(a)2 of this section when assessed based on the child's response to scientific, research-based intervention; or

(c) The child exhibits a pattern of strengths and weaknesses in performance, achievement, or both relative to ability level or intellectual development, that is determined by the ARC to be relevant to the identification of a specific learning disability, using appropriate assessments consistent with 707 KAR 1:300, Section 4.

707 KAR 1:310, Section 2(3) Multiple sources of data collected and reviewed by the ARC must verify that the child does not achieve adequately for his or her age or does not meet age or grade-level standards aligned with the Kentucky Program of Studies in one or more of the specific areas indicated above. Documentation of learning experiences and instruction that are appropriate for the child’s age or state-approved, grade-level standards is required.

The ARC considers whether a child has a specific learning disability (SLD) if evaluation information verifies:

A. That, when provided with appropriate learning experiences for age or grade-level standards aligned with the Kentucky Program of Studies, the child does not achieve commensurate with his or her age and ability levels in one or more of the eight listed areas; and

16 4: Eligibility

B. That the area(s) of concern identified on the referral or through the comprehensive evaluation process has continued following appropriate support, including appropriate instruction in reading or math; and

C. That the child does not make adequate progress when assessed and instructed using response to scientific, research-based interventions; and/or

D. That a pattern of strengths and weaknesses exists between academic performance or achievement and ability level or intellectual development.

Following a reevaluation, the ARC, considering all evaluation data, must determine whether or not the child continues to be a child with a disability and in need of specially designed instruction. (See Section 3, “Coordinated Early Intervening System” in Chapter III.) The ARC makes a determination of whether the child or youth is ready to transition back to the setting he or she would be in if not educationally disabled. Exclusion Factors The ARC shall not identify a child as having a specific learning disability if deficits in achievement are primarily the result of: (a) A visual, hearing, or motor impairment; (b) Mental disability as defined in 707 KAR 1:002 (37); (c) Emotional-behavioral disability; (d) Cultural factors; (e) Environmental or economic disadvantage; or (f) Limited English proficiency . 707 KAR 1:310, Section 2(4) Observation Required At least one (1) team member other than the child’s regular education teacher shall observe the child in the learning environment, including the regular classroom setting, to document academic performance and behavior in the area of difficulty. If the child is less than school age or is out of school, the observation shall take place in an environment appropriate for the child. 707 KAR 1:310, Section 2(5) Documentation of behavior observation(s) includes a description of the activity and behaviors observed, such as:

A. The specific behavior(s) observed; B. The setting(s) in which observation(s) occurred; C. Observation(s) during engagement in the targeted behavior(s) in more than one situation

or task and in antecedent and subsequent events; D. Times and lengths of observations, dates, and observers; E. Data that is collected over time and that demonstrate the frequency, duration, latency, or

intensity of targeted behavior(s); and F. The criteria against which the targeted behavior(s) is judged (e.g., behavior[s] of

comparison group, expected appropriate behavior). The child is observed in the learning environment(s), including the regular classroom setting, to document academic performance and behavior in the area of difficulty. When a child is younger than school age or out of school, observation(s) are conducted in age-appropriate environments (e.g.,

4: Eligibility 17

preschool programs, vocational programs, daycare centers, the community, his or her home). Observation(s) are conducted by someone other than the child’s regular classroom teacher. This person is specifically trained in observation techniques and methods (e.g., teacher, psychologist, guidance counselor). The child’s regular classroom teacher does not conduct a behavior observation within his or her own classroom for the purpose of meeting the evaluation requirements for specific learning disabilities. This does not preclude the child’s regular education teacher from providing additional behavior observations. Appropriate Instruction in Regular Education Settings For a child suspected of having a specific learning disability, the ARC must consider, as part of the evaluation, data that demonstrates that: (a) Prior to, or as a part of the referral process, the child was provided appropriate instruction in regular education settings, including that the instruction was delivered by qualified personnel; and (b) Data-based documentation of repeated assessments of achievement at reasonable intervals, reflecting formal assessment of student progress during instruction, which was provided to the child’s parent. 707 KAR 1:310, Section 2(6) If the child has not made adequate progress after an appropriate period of time, during which the conditions in paragraphs (a) and (b) of this subsection have been implemented, a referral for an evaluation to determine if the child needs special education and related services shall be considered. 707 KAR 1:310, Section 2(7) The ARC reviews appropriate data to determine if the child or youth has been provided appropriate instruction in the regular education setting. For further information, see Section III, “Coordinated Early Intervening System” and Step 3, “Determinant Factors” in Section II, “Determination of Eligibility” of this chapter. Documentation Required An ARC shall develop documentation of a specific learning disability. This documentation shall contain a statement of: (a) whether the child has a specific learning disability; (b) the basis for making that determination; (c) the relevant behavior noted during the observation; (d) the relationship of that behavior to the child’s academic functioning; (e) the educationally relevant medical findings, if any; (f) whether the child does not achieve commensurate with the child’s age and ability; (g) Whether there are patterns of strengths and weaknesses in performance or achievement or both relative to age, state-

approved grade level standards or intellectual development in one or more of the areas described in subparagraph (3)(a)2 of this section, that require special education and related services; and

(h) the determination of the ARC concerning the effects of a visual, hearing, or motor disability; mental retardation; emotional disturbance, environmental, cultural factors, or economic disadvantage; or limited English proficiency on the child’s achievement level.

(i) the instructional strategies used and the student-centered data collected based on the child’s response to scientific, research-based intervention.

707 KAR 1:310, Section 2(8)

18 4: Eligibility

This documentation shall include notification to the child’s parents concerning the policies regarding: (a) the amount and nature of student performance data that is collected and the general education services that are provided; (b) strategies for increasing the child’s rate of learning; and (c) the parents right to request an evaluation. 707 KAR 1:310, Section 2(9) Each ARC member shall certify in writing whether the report reflects the member’s conclusion. If it does not reflect the member’s conclusion, the team member shall submit a separate statement presenting the member’s conclusions. 707 KAR 1:310, Section 2(10) Speech or Language Impairment “Speech or language impairment means a communication disorder, including stuttering, impaired articulation, a language impairment, a voice impairment, delayed acquisition of language, or an absence of language, that adversely affects a child’s educational performance. 707 KAR 1:002, Section 1(60) The ARC determines that a child or youth has a disability of speech or language impairment as defined above and is eligible for special education and related services if evaluation information documents the existence of a speech or language impairment that adversely affects educational performance. According to procedures in Section I and Section II of this chapter, the ARC determines that a child or youth has a speech or language impairment when:

A. The child or youth has a communication disorder in one or more of the following areas: 1. Speech sound production and use (impaired articulation); 2. Language (impaired, delayed acquisition, or absence of); 3. Fluency (stuttering); 4. Voice;

B. Evaluation information confirms that the disorder or condition adversely affects educational performance;

C. The child or youth does not have a communication difference due to: 1. The use of a regional dialect or nonstandard English; 2. Limited English proficiency (e.g., English as a Second Language [ESL] with no

communication disorder in the child’s or youth’s first language); 3. Developmental dysfluencies; or 4. Temporary physical factors (e.g., allergies).

Decisions regarding the eligibility of a child or youth in the areas of speech sound production and use, language, fluency, and voice are made according to the Kentucky Eligibility Guidelines for Students with Speech or Language Impairment — Revised. For a child or youth who is eligible to receive special education services under another area of disability, the ARC must determine if the child or youth has a communication disorder. .

4: Eligibility 19

Traumatic Brain Injury “Traumatic brain injury” or “TBI” means an acquired injury to the brain caused by an external physical force, resulting in total or partial functional disability or psychosocial impairment, or both, that adversely affects a child’s educational performance. Traumatic brain injury does not mean brain injuries that are congenital or degenerative, or brain injuries induced by birth trauma. Traumatic brain injury means open or closed head injuries resulting in impairments in one or more areas, including: (a) cognition; (b) language; (c) memory; (d) attention; (e) reasoning; (f) abstract thinking; (g) judgment; (h) problem-solving; (i) sensory, perceptual, and motor abilities; (j) psychosocial behavior; (k) physical functions; (l) information processing; and (m) speech. 707 KAR 1:002, Section 1(63) According to procedures in Section I and Section II of this chapter, the ARC determines that a child or youth has a traumatic brain injury (TBI) when:

A. A current, educationally relevant medical statement completed by a licensed physician verifies the existence of a TBI;

B. Evaluation information collected across multiple settings verifies an acquired injury to the brain caused by an external physical force, resulting in total or partial functional disability or psychosocial impairments, or both. A TBI is not congenital or degenerative and is not a brain injury induced by birth trauma. A TBI is evidenced by information that indicates an open or closed head injury, resulting in an impairment in one or more of the following areas:

1. Cognition; 2. Language; 3. Memory; 4. Attention; 5. Reasoning; 6. Abstract thinking; 7. Judgment; 8. Problem solving; 9. Sensory, perceptual, and motor abilities;

10. Psychosocial behavior; 11. Physical functions; 12. Information processing and speech;

C. evaluation information shows that the disability adversely affects educational performance.

The ARC will obtain a medical statement completed by a licensed physician to verify the existence of a TBI and the diagnosis and extent of injury, including the possible effect on educational performance.

20 4: Eligibility

Visual Impairment "Visual impairment" or "VI" means a vision loss, even with correction that: (a) Requires specialized materials, instruction in orientation and mobility, Braille, visual efficiency, or tactile

exploration; (b) Has an adverse effect on the child’s educational performance; and (c) Meets the following: 1. The child has visual acuity with prescribed lenses that is 20/70 or worse in the better eye; or 2. The child has visual acuity that is better than 20/70 and the child has one (1) of the following conditions: a. A medically-diagnosed progressive loss of vision; b. A visual field of twenty (20) degrees or worse; c. A medically-diagnosed condition of cortical blindness; or d. A functional vision loss. 707 KAR 1:002, Section 1(65)

According to procedures in Section I and Section II of this chapter, the ARC determines that a child or youth has a visual impairment (VI) when:

A. An evaluation includes the following components: 1. The visual acuity, even with prescribed lenses, is 20/70 or worse in the better eye; or 2. The visual acuity is better than 20/70, and the child or youth has any of the following

conditions: a. A medically diagnosed progressive loss of vision; b. A visual field of twenty (20) degrees or worse; c. A medically diagnosed condition of cortical blindness; or d. A functional loss of vision;

B. The child or youth requires specialized materials and instruction in orientation and mobility, Braille, visual efficiency, or tactile exploration;

C. Evaluation information shows that the vision loss adversely affects educational performance.

5: IEP 1

CHAPTER 5 INDIVIDUAL EDUCATION PROGRAM

707 KAR 1:320 SECTION I INDIVIDUAL EDUCATION PROGRAMS An LEA* shall ensure an IEP† is developed and implemented for each child with a disability served by that LEA, and for each child with a disability placed in or referred to a private school or facility by the LEA. 707 KAR 1:320, Section 1(1) An IEP shall be in place for all eligible children aged three (3) through five (5). 707 KAR 1:320, Section 1(7) At the beginning of the school year, an LEA shall have an IEP in effect for each child with a disability within its jurisdiction. An LEA shall ensure the IEP: (a) Is in effect before specially designed instruction and related services are provided to a child with a disability; and (b) Is implemented as soon as possible following an ARC‡ meeting. An LEA (or state agency responsible for developing the child’s IEP) shall ensure that there is no delay in implementing a child’s IEP, including any case in which the payment source for providing or paying the special education and related services to the child is being determined. 707 KAR 1:320, Section 1(3-5) The Jefferson County Public School (JCPS) District will ensure that an Individual Education Program (IEP) is developed and implemented for each child or youth with a disability who is served by the JCPS District and for each child or youth with a disability who is placed in or referred to a private school or facility by the district. The Admissions and Release Committee (ARC) will develop the IEP for each child or youth with a disability and document it on the district IEP form. The district will ensure that the IEP:

A. Is in effect before special education and related services are provided to a child or youth with a disability; and

B. Is implemented as soon as possible following an ARC meeting. The phrase “as soon as possible following an ARC meeting” allows for implementation delays including:

A. Meetings held during an instructional break (e.g., summer); B. Developing an IEP for a child who is not yet three (3) years of age; C. Circumstances that require a short delay (e.g., working out transportation arrangements);

and D. Awaiting parental consent for the initial provision of services.

* local educational agency (LEA), which means the JCPS district. † Individual Education Program (IEP) ‡ Admissions and Release Committee (ARC)

2 5: IEP

At the beginning of each school year, the district will have an IEP in effect for each child or youth with a disability within its jurisdiction. Accessibility of IEP to Staff Members Who Are Responsible for Implementation An LEA shall ensure that: (a) The child’s IEP is accessible to each regular education teacher, special education teacher, related services provider,

and other service providers who are responsible for its implementation; (b) Prior to the implementation of the IEP, each implementer is informed of his specific responsibilities related to

implementing the child’s IEP; and (c) The specific accommodations, modifications, and supports are provided for the child in accordance with the IEP. 707 KAR 1:320, Section 1 (6) The principal assigns staff. After staff is assigned and related-service providers are identified, the ARC chairperson/district representative ensures that each individual who is providing educational services has access to a copy of the IEP. Staff and/or related-service providers are informed of their specific responsibilities as they relate to implementing the IEP. The specific accommodations, modifications, and supports must be provided in accordance with the IEP. The staff and related- service providers are responsible for instructional planning as well as collecting and maintaining progress data. SECTION II ADMISSIONS AND RELEASE COMMITTEE MEETINGS A LEA shall ensure that each child has an ARC which includes the membership in Section 3 of this administrative regulation and is initiated and conducted for the purpose of developing, reviewing, and revising the IEP. KAR 1:320, Section 1(7) An ARC is responsible for developing, reviewing, and revising the IEP for each child or youth who is classified as having a disability and needing special education and related services. An LEA shall ensure that within sixty (60) school days following the receipt of the parental consent for an initial evaluation of a child: (a) The child is evaluated; and (b) If the child is eligible, specially designed instruction and related services will be provided in accordance with the

IEP. Within this sixty (60) school day period, an LEA shall ensure that the ARC meeting to develop an IEP for the child is conducted within thirty (30) days of the determination that the child is eligible. KAR 1:320, Section 2(3-4) The sixty (60) school-day timeline shall not apply in the following situations: (a) If the child moves to a new LEA after consent for the initial evaluation is given but before the evaluation can be

completed, as long as the new LEA is making sufficient progress to complete the evaluation and the parent and the LEA agree to a specific time when the evaluation shall be completed; or

(b) If the parent repeatedly fails or refuses to produce the child for evaluation. KAR 1:320,Section 2(5) Before a child or youth with a disability receives services, the ARC members determine that he or she needs special education and related services and develop an IEP. The ARC generally determines eligibility and develops the IEP during one meeting. If separate meetings are held, the ARC meeting

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to develop the IEP must be held within 30 calendar days of the meeting to determine eligibility and within 60 school days of the receipt of parental consent to evaluate. When a child or youth transfers from another local educational agency (LEA) and is identified as being in the process of an initial evaluation, the ARC chairperson/district representative obtains all appropriate records from the previous LEA and forwards them to the lead psychologist/designee. In consultation with school staff and the parent, the lead psychologist/designee determines an appropriate timeframe for completing the initial evaluation. This decision is communicated in writing to both the parents and the ARC chairperson/district representative. In the case of a child whose parents repeatedly fail to provide access to the child for evaluation purposes, assessment personnel are to document multiple efforts to arrange mutually agreed-upon evaluation appointments. All documentation will be forwarded to the lead psychologist/designee, who will communicate with the parent in writing by certified mail to request that the parent contact the district to reschedule the evaluation or the evaluation process will be terminated. Written communication will indicate to the parent that if the current evaluation process is terminated, the parent can, at any time in the future, request an ARC meeting to discuss a new referral of the child or youth for special education and related services. An LEA shall ensure that the ARC: (a) Reviews each child’s IEP periodically, but no less than annually, to determine whether the annual goals for the child

are being achieved; and (b) Revises the IEP in accordance with 34 C.F.R. 300:324 (b)(1)(ii) 707 KAR 1:320, Section 2(6) Each public agency must ensure that … the IEP Team … revises the IEP, as appropriate, to address-- 1. Any lack of expected progress toward the annual goals; 2. Any lack of expected progress in the general curriculum, if appropriate; 3. The results of any reevaluation; 4. Information about the child provided by or to the parents; 5. The child’s anticipated needs; and 6. Other matters. 34 C.F.R. 300:324 (b)(1)(ii) The ARC members do develop an IEP when a child or youth:

A. Has been evaluated and the ARC members have determined that the child or youth has an educational disability;

B. Has been receiving specially designed instruction and is in the process of annual review; and

C. Has a current IEP that needs to be revised because of changes in the needs or priorities of the child or youth.

The ARC members do not develop an IEP when a child or youth:

A. Has been evaluated and the ARC members have determined that the child or youth does not have a disability under the Individuals with Disabilities Education Act (IDEA);

B. Has a disability but that disability does not adversely affect the educational performance of the child or youth; and

C. Has an IEP that was developed within the last 12 months and that meets the needs of the

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child or youth. Each ARC will gather and review information to determine the status of a child or youth with a disability with regard to the IEP and will ensure that progress data are maintained for him or her. Actions Prior to Meeting to Develop an IEP District personnel will follow procedures in Chapter 7, “Procedural Safeguards and State Complaint Procedures,” and Chapter 9, “Confidentiality of Information,” regarding providing notice and access to student records prior to an ARC meeting. If the parent’s native language is other than English or if a different mode of communication is used, the ARC chairperson/district representative makes arrangements for an interpreter and for translating, transcribing, or recording the IEP according to procedures in Chapter 7, “Procedural Safeguards and State Complaint Procedures.” Prior to an ARC meeting, the ARC chairperson/district representative notifies all members to bring data or information about the child or youth to use in developing or revising the IEP. This information may include oral or written statements of recommendations for priority needs, evaluation results, student progress, and draft IEP, including present levels of academic achievement and functional performance, annual goals, benchmarks or short-term instructional objectives, and the type of special education and related services needed. No member of an ARC presents a final IEP. When committee members come prepared with information related to their areas of expertise, then:

A. The ARC chairperson/district representative makes the parents aware at the beginning of the meeting that any prepared information is for suggestion only and is open for review and discussion;

B. Each piece of information is discussed; and C. Group decisions are made related to inclusion of the information in the IEP.

The IEP is developed and completed in written form during an ARC meeting to ensure input from all members. Notice of ARC Meetings Notice of an ARC meeting will be provided to the parent — in accordance with procedures in Chapter 7, “Procedural Safeguards and State Complaint Procedures” — seven (7) calendar days prior to the meeting unless the parent and ARC chairperson/district representative agree otherwise. If the child is in the eighth grade year, or has reached the age of fourteen (14) years, the invitation shall state that a purpose of the meeting will be the development of a statement for the need for transition services for the child and state that the child is invited. This subsection shall apply to a child younger than fourteen (14) years of age if determined to be appropriate by the ARC. For the child with a disability, beginning no later than the IEP that will be in effect when the child turns sixteen (16), the invitation shall state that a purpose of the meeting is the consideration of the postsecondary goals and needed transition services for the child and shall include the identity of any other agency that is invited to send a representative. This subsection shall apply to a child younger than sixteen (16) years of age if determined to be appropriate by the ARC. 707 KAR 1:320, Section 4(3-4)

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ARC Meeting Discussions and Documentation of Proposed or Refused Actions At the beginning of each ARC meeting to develop, review, or revise an IEP, the ARC chairperson/district representative reviews the procedural safeguards (Chapter 7, “Procedural Safeguards and State Complaint Procedures”) and reviews the ARC process for IEP development and revision. This review includes:

A. The ARC considers all relevant educational information; B. Before any group decision is made, the ARC members discuss and consider any

information brought by any member, including parents; C. If at any point there is insufficient data to develop or revise the IEP, the ARC

chairperson/district representative schedules another meeting for IEP development. He or she keeps in mind the timelines for IEP completion. The additional data needed is documented in the meeting summary;

D. ARC members decide as a group and prioritize the areas of need to be included in the IEP;

E. During the meeting, the ARC members discuss all of the required components of the IEP; F. The ARC keeps a record of the ARC’s decisions on the meeting summary, which

includes the notice of proposed or refused action; and G. The ARC chairperson/district representative gives a copy of the IEP and the meeting

summary to the parent. (See the procedures for notice of proposed/refused action and parent participation in Chapter 7, “Procedural Safeguards and State Complaint Procedures.”)

ARC Decision-Making Process The ARC members try to reach consensus when developing, reviewing, or revising an IEP. ARC members reach a consensus by total agreement on an issue or by negotiating a compromise on which all members can agree. Before any decision is finalized in the IEP form, the ARC chairperson/district representative summarizes the decision and determines the level of agreement within the ARC. If the parent and district personnel cannot reach a consensus or negotiate a compromise on a component of the IEP, the ARC documents any disagreement. The ARC chairperson/district representative states the district’s position, and the ARC documents the position in the meeting summary. The ARC chairperson/district representative reminds the parent of the right of the parent and the district to resolve differences through mediation, complaint, or due-process procedures. The last agreed-upon IEP remains in effect until the disagreement is resolved. The ARC documents the continuation of the existing IEP. The ARC reconvenes at an agreed-upon time and date unless mediation or a due-process hearing is requested or unless a complaint is filed in accordance with Chapter 7, “Procedural Safeguards and State Complaint Procedures.” When mediation or a due-process hearing is initiated by either the parent or the district because of disagreement over the IEP, or when a complaint is filed, the district does not change the IEP or placement of the child unless the parent and the district agree otherwise. (See Chapter 7, “Procedural Safeguards and State Complaint Procedures.”)

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If any ARC member, other than the parent, disagrees with any part of the proposed IEP, the dissenting member(s) may attach to the meeting summary a written statement that gives the reasons for disagreement and the IEP is implemented as written. ARC Not Required to Meet for Minor Changes to IEP An ARC shall not have to be convened in order to make minor, non-programmatic, changes to an IEP, such as typographical errors, incorrect directory information about the student (such as, birth date, age, grade, address, or school) and other information required on the IEP that was agreed upon by the ARC but incorrectly recorded. If the LEA makes any minor, non-programmatic changes, all members of the ARC shall be given a copy of the changes and an explanation as to why the changes were made within ten (10) school days of the changes being made. If any member of the ARC objects to the changes, an ARC meeting shall be convened with a reasonable periods of time to discuss the changes. 707 KAR 1:320, Section 2(2) Clerical errors made on a student’s IEP may be corrected without convening an ARC meeting. Clerical errors refer to minor errors, such as the student’s demographic information or the date of the ARC meeting. If clerical errors are noted on a student’s IEP, the changes should be documented, initialed, and dated by the ARC chairperson/district representative. A written explanation is attached to the IEP. The explanation indicates the changes and the reason for the changes. A copy of the corrected IEP and written explanation is provided to each member of the child’s ARC. Copies are also provided to any service provider who is affected by the changes. SECTION III ARC MEMBERSHIP An LEA shall ensure that the ARC for each child with a disability includes: (a) The parents of the child; (b) Not less than one (1) regular education teacher of the child (if the child is or may be participating in the regular

education environment) to provide information about the general curriculum for same aged peers. (c) Not less than one (1) special education teacher of the child or a special education teacher who is knowledgeable

about the child’s suspected disability or, if appropriate, at least one (1) special education provider of the child; (d) A representative of the LEA who is qualified to provide, or supervise the provision of specially designed instruction

to meet the unique needs of children with disabilities, is knowledgeable about the general curriculum, and the availability of the resources of the LEA;

(e) An individual who can interpret the instructional implications of evaluation results who may be a member of the team described in paragraphs (b) through (d) of this subsection;

(f) An individual who has knowledge or special expertise regarding the child at the discretion of the parent or the LEA; (g) Related services personnel, as appropriate; and (h) The child, if appropriate. 707 KAR 1:320, Section 3(1) If the purpose of the ARC is to determine eligibility for a child suspected of having a specific learning disability, the ARC shall also include the personnel listed in 707 KAR 1:310, Section 2(1), in addition to the personnel listed in subsection (1) of this section [707 KAR 1:320, Section 3(1)]. 707 KAR 1:320, Section 3(5)

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If the purpose of the ARC is to discuss transition services for a child with a disability as described in Section 4(3) and (4) of this administrative regulation, the child shall be invited to the ARC. If the child does not attend the ARC meeting, the LEA shall take other steps to ensure that the child’s preferences and interests are considered. A public agency that is likely to be responsible for providing or paying for transition services shall also be invited to the extent appropriate and with the consent of the parent or the child, if the child is an emancipated adult. If the representative of the other public agency does not attend, the LEA shall take other steps to obtain participation of the other agency in the planning of any transition services. 707 KAR 1:320, Section 3(4) If the purpose of the ARC meeting is to discuss transition and the youth does not attend the meeting, the ARC will take other steps to ensure that the youth’s preferences and interests are considered. If the purpose of the ARC meeting is to discuss transition from early intervention program into the preschool program, the LEA shall invite a representative of the early intervention program for the initial transition ARC meeting if parent requests. At the ARC meeting, the child’s previous Individualized Family Service Plan that was used by the early intervention program shall be considered when developing the new IEP for the child. 707 KAR 1:320, Section 3(6) Dismissal of Attendance A member of the ARC team listed above may be dismissed from attendance, in whole or in part, if the parents and the LEA agree in writing prior to the ARC meeting that attendance of that member is not necessary because the member’s area of curriculum or related services is not being modified or discussed in the ARC meeting. A member of the ARC team listed above may be dismissed from attendance, in whole or in part, if the parents and the LEA agree in writing prior to the ARC meeting to waive the attendance of that member even though the member’s area of curriculum or related will be discussed or modified if: (a) The parent and the LEA consent in writing to the excusal; and (b) The member submits, in writing, to the parent and the ARC team, input into the development of the IEP prior to the

meeting. 707 KAR 1:320, Section 3(2-3) It is the responsibility of the ARC chairperson/district representative to determine the membership of the ARC. At a minimum, the ARC meeting must have in attendance the parent(s) of the child; no fewer than one (1) regular education teacher; no fewer than one (1) special education teacher; the ARC chairperson/district representative; and, when appropriate, an individual who can interpret assessment information, related-service personnel, and the child. Infrequently and on a case-by-case basis, the ARC chairperson/district representative and parent may agree that one of the required members described above may be dismissed, in whole or in part, from the ARC meeting. However, if the parent and the ARC chairperson/district representative agree to dismiss a required member of the ARC from attendance or agree to dismiss the member from part of the ARC meeting, then the following conditions must be met:

A. The parent and the ARC chairperson/district representative must agree prior to the meeting; and

B. The decision must be documented in writing and notice must be provided to the parent under the same timelines as the meeting notification.

If the ARC member is being dismissed from the entire meeting and has an area of curriculum or related service that will be discussed or modified, then the ARC requires written input from the

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dismissed ARC member to be included and discussed at the ARC meeting. Parents of the Child or Youth The parents participate in discussions about their child’s or youth’s need for special education, related services, and supplementary aids and services. They join with the other participants in deciding how their child or youth will be involved and progress in the regular education program curriculum and how their child or youth will participate in statewide and districtwide assessments. The concerns of parents and the information they provide regarding their child or youth must be considered in developing their child’s or youth’s IEP. See the definition of parent in Chapter 1, “Definitions.” ARC Chairperson/District Representative The principal or primary administrator at the building level is a permanent member of the ARC and is the ARC chairperson/district representative. He or she has the authority to commit personnel and fiscal resources. As instructional leader, the principal is ultimately responsible for the implementation of the ARC process in his or her school building. The principal will ensure that all district procedures are followed and that services included in the IEP are actually provided. If a designee is used, the designee is:

A. Qualified to provide or supervise the provision of Exceptional Child Education (ECE) services;

B. Recommended by the building principal; C. Approved by the superintendent as the district representative who has the authority to

commit building personnel and financial resources and to not be vetoed; and D. Not a teacher of the child or youth.

At the beginning of each school year, each building principal may appoint a designee(s) as the ARC chairperson/district representative. The principal sends the executive director of ECE a memorandum that identifies the designee(s) and specifies his or her qualifications to serve as the ARC chairperson/district representative. The executive director of ECE verifies the qualifications of the individual to serve as the ARC chairperson/district representative and submits the request to the superintendent for approval. The building principal maintains a copy of the approved ARC chairpersons/district representatives for their building. The executive director of ECE maintains a list of all approved ARC chairpersons/district representatives for the district. The ARC chairperson/district representative participates in the ARC in a number of ways including, but not limited to:

A. Ensuring that due-process procedures and other procedural safeguards are followed; B. Facilitating group decision making and, if necessary, making a determination and stating

the district’s position when the ARC cannot agree; C. Ensuring that all teachers and service providers have access to a copy of the IEP and that

they are given information regarding their specific responsibilities in the implementation of the IEP; and

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D. Providing support for, and ensuring the implementation of, the ARC’s decisions and the IEP.

At the beginning of each school year, the executive director of ECE identifies all nonschool-based personnel who may serve as an ARC chairperson/district representative at ARC meetings held within the district as his or her designee. Exceptional Child Education Teacher The ARC chairperson/district representative selects no fewer than one (1) ECE teacher to serve on the ARC for each child or youth depending on the purpose of the meeting. The ARC chairperson/district representative takes into consideration:

A. The qualifications of the ECE teacher with respect to the child’s or youth’s known disability or suspected disability supported in the initial referral or individual evaluation;

B. The ECE teacher who is currently working with the child or youth receiving special education and related services; and

C. The child or youth who is moving from one educational setting to another. The ECE teacher participates in the ARC in a number of ways including:

A. Assisting the ARC in determining the eligibility of the child or youth for an ECE program;

B. Providing input on the IEP development, including present levels of academic achievement and functional performance, annual goals, benchmarks or short-term objectives, and the needed special education and related services; and

C. Providing input on the child’s or youth’s progress and on the revision of the IEP at the annual review meeting.

Regular Education Program Teacher The ARC chairperson/district representative selects no fewer than one (1) regular education program teacher to serve on the ARC committee for each child or youth depending on the purpose of the meeting. The ARC chairperson/district representative takes into consideration:

A. The teacher who is currently working with the child or youth; B. The teacher who initiated the referral; C. The teacher who can assist in the development of the child’s or youth’s program; and D. The child or youth who is moving from one educational setting to another.

In circumstances where instruction is provided by more than one (1) regular education program teacher, only one (1) of those teachers is required to attend the ARC meeting. The regular education program teacher who serves as a member of the ARC should be the teacher who is, or may be, responsible for implementing a portion of the IEP. If the child or youth has more than one (1) regular education program teacher who is responsible for implementing a portion of the IEP, the ARC chairperson/district representative may designate which teacher or teachers will participate in the meeting, taking into account the best interest of the student. Although all the student’s teachers may

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not attend, they will be informed about the IEP prior to its implementation. The ARC chairperson/district representative may solicit written comments or input from teachers who work with the child or youth but whose attendance is not required at ARC meetings. If a child or youth does not have a regular education program teacher, the ARC chairperson/district representative selects a regular education program teacher who is qualified to teach a child or youth of his or her age. For a child who is less than school age, the ARC selects an individual who is qualified to teach a child of his or her age. The referring teacher/regular education program teacher participates in the ARC in a number of ways including, but not limited to:

A. Discussing interventions and strategies that are implemented in the regular education program classroom setting to alleviate student problems;

B. Assisting in the determination of positive behavioral interventions and strategies for the child or youth;

C. Assisting in the determination of supplementary aids and services, program modifications, or supports for school personnel that will be provided for the child or youth; and

D. Attending the ARC meeting during the development, review, and revision of the IEP; providing input on the child’s or youth’s progress; and providing input on the development of the IEP.

Person Who Can Interpret Evaluation Results, Including Instructional Implications, If Appropriate The ARC chairperson/district representative arranges for a member of the multidisciplinary evaluation team — or some other knowledgeable person who can interpret the evaluation results and the instructional implications — to attend the ARC meeting if appropriate. This person:

A. Provides information regarding needed areas of assessment; B. Assists in explaining evaluation procedures and results; C. Interprets the instructional implications of evaluation results; and D. Provides input into the development and implementation of the IEP.

Related-Service Provider, If Appropriate If the evaluation includes a related-service component, an appropriate related service provider is invited to interpret the evaluation results including the educational implications. If a child or youth has an identified need for related services, it is appropriate for related-service provider(s) to attend the meeting or be otherwise involved in developing the IEP. Depending on the child’s or youth’s individual needs, related-service provider(s) who attend the ARC meeting or otherwise help develop the IEP may include physical or occupational therapists and speech-language pathologists. For more information, see the Related Services subsection of Section V, “Contents of the Individual Education

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Program.” If a child’s or youth’s evaluation indicates the need for a specific related service, the ARC chairperson/district representative ensures that a qualified provider of that service either (1) attends the ARC meeting or (2) provides a written recommendation concerning the nature, frequency, and amount of the service to be provided to the student. Student With a Disability, If Appropriate Student Younger Than Age Fourteen (14) If a student is younger than fourteen (14), ARC members consider whether it is appropriate for the youth to attend the ARC meeting. A youth must be invited to participate in the ARC meeting if a purpose of the meeting is the consideration of post-school transition services. Student in Grade Eight (8) or Age Fourteen (14) and Older A youth who is in the eighth (8th) grade or has reached fourteen (14) years of age or older must be invited to participate in the ARC meeting if a purpose of the meeting is the consideration of post-school transition services. The invitation sent to the parent will indicate that the student is invited and that a purpose of the meeting is the development of a statement for the need for transition services. The student will receive a notice of the meeting. For a youth, beginning no later than the IEP to be in effect when the youth turns sixteen (16), the invitation sent to the parent will indicate that the student is invited and will indicate that a purpose of the meeting is the consideration of postsecondary goals and needed transition services. The student will receive a notice of the meeting. If a student elects not to attend the ARC meeting where post-school transition services are discussed, the youth’s teacher takes steps to ensure that the youth’s preferences and interests are considered. This information may be gained from an interview with the youth. Student Age Eighteen (18) to Twenty-One (21) In the case of a student who is age eighteen (18) or older (has reached the age of majority), all notices are sent directly to the student. The school or the student may invite the parents as persons with knowledge about the student unless there is a court order granting guardianship of the child to someone else. Other Individuals Who Are Knowledgeable About the Child or Youth The district or the parent may invite other individuals who are knowledgeable about the child or youth. Other individuals who are knowledgeable about the child or youth:

A. Participate in the ARC, upon request of the district or the parent, and share their

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knowledge or expertise; and B. Provide input into the development of the IEP.

Officials from teachers’ organizations are not authorized to represent teachers in ARC meetings. Agency Representatives Involved in Transition Planning, If Appropriate If the purpose of the ARC is to discuss needed transition services for a youth with a disability, a public agency that is likely to be responsible for providing or paying for transition services will be invited if appropriate and if there is the consent from the parent or the youth if the youth is an emancipated adult. If the representative of the agency does not attend, the ARC chairperson/district representative will take other steps to obtain participation of the agency in the planning of any transition services. District personnel will contact the agency representative (by phone or in person) to begin planning for the youth’s services and will report appropriate information to the ARC. At each ARC meeting, beginning when the student turns 15, the ARC chairperson/district representative discusses the need for agency involvement at the next annual review. If it is determined at an ARC meeting or at any time in the future that an agency should be involved at the next annual review, then the ARC chairperson/district representative will obtain signed consent for release of information in accordance with the procedures outlined in Chapter 9, “Confidentiality of Information.” SECTION IV PARENT PARTICIPATION An LEA shall ensure that one (1) or both of the parents of a child with a disability are present at each ARC meeting or are afforded the opportunity to participate. Except for meetings concerning a disciplinary change in placement or a safety issue, an LEA shall provide written notice to the parents of a child with a disability at least seven (7) days before an ARC meeting. The meeting shall be scheduled at a mutually agreed on time and place. 707 KAR 1:320, Section 4(1) A LEA shall send an ARC meeting invitation to the parents which includes: (a) The purpose; (b) Time; (c) Location of the meeting; (d) Who will be in attendance; (e) Notice that the parents may invite people with knowledge or special expertise of the child to the meeting; and (f) Notice that the LEA will invite representatives from the early intervention program to the initial meeting, if the

parents request it. 707 KAR 1:320, Section 4(2) Methods to Ensure Parent Participation An LEA shall ensure parent participation in the ARC meeting if the parent is unable to attend by using other methods, which may include individual or conference telephone calls or video conferencing. 707 KAR 1:320, Section 4(5)

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When using an interpreter or other action, as appropriate, an LEA shall take whatever action is necessary to ensure that the parents understand the proceedings at the ARC meeting, including arranging for an interpreter for parents with deafness or whose native language is other than English. 707 KAR 1:320, Section 4(7) Conducting the ARC Meeting Without a Parent An ARC meeting may be conducted without a parent in attendance if the LEA is unable to convince the parent that he should attend. The LEA shall have a record of its attempts to arrange a mutually agreed on time and place, which may include: (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 to the parent’s home or place of employment and the results of those visits. 707 KAR 1:320, Section 4(6) If the ARC chairperson/district representative takes steps to ensure that one or both of the parents of the child or youth is present for each ARC meeting concerning their child or youth. If the ARC chairperson/district representative is unable to convince the parent that he or she should attend, the meeting can be conducted without the parent in attendance, as long as the ARC chairperson/district representative maintains records of the attempts to arrange a mutually agreed upon date, time, and location. See Section 1, “Notice – Parent Participation in Meetings” of Chapter 7. Detailed records will be kept by the person attempting the contacts and will include the date, time, and his or her name. These records, copies of any correspondence sent to the parent, and any response received will be filed in the child’s or youth’s special education record. An LEA shall give the parent a copy of the child’s IEP at no cost to the parent. 707 KAR 1:320, Section 4(8) The ARC chairperson/district representative will give the parent a copy of the child’s or youth’s IEP at the conclusion of the ARC meeting. If the parent does not attend, the ARC chairperson/district representative mails a copy of the IEP and the notice of proposed or refused action (meeting summary) within two (2) school days after the meeting. Changing the IEP When Parents Do Not Attend an ARC Meeting If the parents fail to respond to attempts by the school to obtain their participation and the ARC meeting must be conducted without the parents’ participation, it may become necessary during the meeting for the ARC to consider making changes to the child’s or youth’s IEP without the parents’ participation. In order for any change in the special education or related services of an IEP to occur, the school must hold an ARC meeting. Following the meeting, the school must provide the parents a prior written notice of the proposed or refused action before any change is implemented. This notice, the meeting summary, and the proposed IEP are mailed to the parent within two (2) school days after the ARC meeting. The changes proposed in the IEP do not occur until at least five (5) school days after the notice was mailed. Proposed changes will not be implemented until this seven (7) school day timeline has passed.

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SECTION V CONTENTS OF INDIVIDUAL EDUCATION PROGRAM ARC Considerations in IEP Development An ARC shall consider in the development of an IEP: (a) the strengths of the child and the concerns of the parents for enhancing the education of their child: (b) The results of the initial or most recent evaluation of the child; (c) As appropriate, the results of the child’s performance on any general state or district wide assessments programs;

and (d) The academic, developmental, and functional needs of the child. 707 KAR 1:320, Section 5(1) The ARC shall: (a) In the case of a child 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 child with limited English proficiency, consider the language needs of the child as those needs relate

to the child’s IEP; (c) In the case of the child who is blind or visually impaired, provide for instruction in Braille and the use of Braille,

unless the ARC determines, after an evaluation of the child’s reading and writing skills, needs, and appropriate reading and writing media (including an evaluation of the child’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 child;

(d) Consider the communication needs of the child; (e) In the case of a child who is deaf or hard of hearing, consider the child’s language and communication needs,

opportunities for direct communications with peers and professional personnel in the child’s language and communication mode, academic level, and full range of needs, including opportunities for direct instruction in the child’s language and communication mode; and

(f) Consider whether the child requires assistive technology. All the factors listed in this section [Section 5] shall be considered, as appropriate, in the review, and if necessary, revision of a child’s IEP. Once the ARC has considered all the factors listed in this section [Section 5] the ARC shall include a statement on the IEP indicating the needs for a particular device or service (including an intervention, accommodation, or other program modification), if any are needed, in order for the child to receive a free appropriate public education (FAPE). 707 KAR 1:320, Section 5(2-4) A regular education teacher of the child, as a member of the ARC, shall, to the extent appropriate, participate in the development, review, and revision of the child’s IEP, including assisting in the determination of appropriate: (a) Positive behavioral interventions and strategies for the child; (b) Supplementary aids and services; and (c) Program modifications or supports for school personnel that will be provided for the child. 707 KAR 1:320, Section 5(5) An ARC shall not be required to include information under one (1) component of a child’s IEP that is already contained under another component of the child’s IEP. 707 KAR 1:320, Section 5(6)

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Present Levels of Academic Achievement and Functional Performance The IEP for each child shall include: (a) a statement of the child’s present levels of academic achievement and functional performance, including how the child’s disability affects the child’s involvement and progress in the general curriculum as provided in the Kentucky Program of Studies, 704 KAR 3:303, or for preschool children, as appropriate, how the disability affects the child’s participation in appropriate activities; 707 KAR 1:320, Section 5(7)(a) Present levels of academic achievement and functional performance are the foundation of the IEP and must adequately describe the needs of the child or youth. The present levels are written based on instructional and assessment information that has been gathered and analyzed. When writing about a child’s or youth’s present levels of academic achievement and functional performance, a descriptive statement should be used. This statement should be written in measurable, objective terms; should describe the current level of developmental, educational, and behavioral performance; and should be based on:

A. Multidisciplinary evaluation results; B. Formal and informal evaluation data; and/or C. Ongoing progress data.

There should be a direct relationship among the IEP components that begins with the present levels of academic achievement and functional performance. The needs identified become the basis for development of the annual goals. The ARC describes the child’s performance in the following areas: general intelligence; communication; academics; motor skills, health, vision, and hearing; social and emotional status; and transition. The ARC describes the performance by:

A. Using student performance data, evaluation information, and progress data; B. Reviewing curriculum documents to determine the child’s performance within the regular

education curriculum; C. Indicating the areas in which the student is performing at a level that is commensurate

with peers; D. Determining how the child’s disability affects involvement and progress in the Kentucky

Program of Studies; and E. Determining the child’s unique needs in order to prepare him or her for further education,

employment, and independent living. Developing Measurable Academic and Functional Annual Goals The IEP for each child shall include: (b) a statement of measurable annual goals, including academic and functional goals, designed to: 1. Meet the child’s needs that result from the disability to enable the child to be involved in and progress in the general

curriculum as provided in the Kentucky Program of Studies, 704 KAR 3:303, or for preschool children, as appropriate, to participate in appropriate activities, and

2. Meet the child’s other educational needs that result from the disability. 707 KAR 1:320, Section 5(7)(b) Annual goals:

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A. Relate directly to the identified needs described in the present levels of educational and

functional performance; B. Relate to meeting the child’s or youth’s needs in order to enable him or her to be

involved in and progress in the regular education curriculum; C. Are written with high expectations for student success; D. Are measurable, are meaningful, and can be monitored though objective data collection; E. Are useful in making educational decisions; and F. Include statements of anticipated results to be achieved in a year.

The ARC members review and discuss all of the identified needs of the child or youth and decide which are priority needs to be addressed through the IEP. When prioritizing student needs, the ARC should determine what skills and/or content knowledge are the most important for the child or youth to acquire in the next twelve (12) months. The ARC members select priority needs by considering the following factors:

A. Primary concerns noted on the initial referral; B. The child’s or youth’s strengths and interests; C. The child’s or youth’s progress in the Kentucky Program of Studies; D. Behaviors that appear most modifiable; and E. Parent, teacher, and student concerns.

Based on priority needs, the ARC members compose measurable annual goal statements. The number of goals depends on the child’s or youth’s needs. Prerequisite skills, immediate needs, and general applicability are all factors to consider when establishing priority needs. Benchmarks or Short-Term Objectives A LEA’s procedures may determine the use of benchmarks or short-term objectives for a child’s IEP. 707 KAR 1:320, Section 5(7)(c) Benchmarks are part of the student’s IEP. These benchmarks are major milestones outlining specific skills that lead toward the achievement of the measurable annual goal. Benchmarks are selected for each measurable annual goal. These components outline the key curriculum skill areas in which specially designed instruction will be provided in order for the child or youth to make progress toward the measurable annual goal. Benchmarks are aligned with grade-level content expectations, which may need to be modified based on the individual needs of the student. Additionally, the benchmarks guide the development and modification, as necessary, of strategies that will be most effective in realizing the measurable annual goal. Short-term objectives may be used in place of benchmarks when the ARC determines that the use of short-term objectives would better facilitate the implementation of the measurable annual goals. Short-term objectives differ from benchmarks in that they:

A. Are intermediate steps; B. Break the annual goals into discrete components; and

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C. Include specific statements with conditions, behaviors, and criteria. Measuring Student Progress An IEP includes how a child’s or youth’s progress toward annual goals will be measured. The ARC should first consider methods used by regular education program teachers in assessing similar-age and similar-grade students within the regular education curriculum. A variety of methods may be used in measuring progress. The ARC also considers typical structures that exist within the classroom including, but not limited to, teacher-made tests/checklists, formative and summative assessments, teacher observations, running records, and error analysis. Measuring student progress toward annual goals should be done regularly and should not be based solely on outcome data, such as grades. Data should be collected and analyzed on an ongoing basis and should be used to change instruction if necessary. There must be evidence or documentation to support the data, and progress must be reported to parents and to the ARC. Specially Designed Instruction, Supplementary Aids and Services, Program Modifications, and Supports for School Personnel An IEP shall include a statement of the specially designed instruction and related services and supplementary aids and services based on Peer-reviewed research to the extent practicable to be provided to the child, or on behalf of the child. There shall also be a statement of the program modifications and supports for school personnel that will be provided for the child to: (a) Advance appropriately toward attaining the annual goals; (b) Be involved and make progress in the general curriculum; (c) Participate in extracurricular and other nonacademic activities; and (d) Be educated and participate with other children with and without disabilities. 707 KAR 1:320, Section 5(8) Specially Designed Instruction The specially designed instruction (SDI) component of the IEP describes the types of specific instructional services that are needed by the child or youth in order for him or her to accomplish IEP goals and access the regular education curriculum. SDI may be supportive, corrective, developmental, or therapeutic in nature. These services, which directly relate to the annual goals, include alterations, modifications, and adaptations in instructional methods, content, materials, techniques, media, the physical setting, and the environment. SDI includes services not ordinarily provided for most of the children or youth of a given age or grade level. SDI describes services that are needed in order for a child or youth with an educational disability to learn. In some cases, SDI is needed for all instructional areas. In other cases, SDI is content-specific. Categorical classrooms or program plans are not a substitute for a description of the services needed. SDI does not describe the place where the services will be provided. Specially designed instruction:

A. Includes services that support achievement of specified goals; B. Describes what changes will be made to the current instructional program or services for

the child or youth; and

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C. Is based on peer-reviewed research to the extent practical. The ARC members use generic terms to describe decisions and do not use commercial programs or name brands in the description. Supplementary Aids and Services, Program Modifications, and Supports for School Personnel The phrase “supplementary aids and services” means aids, services, and other supports that are provided in regular education program classes or other education-related settings in order to enable a child or youth with disabilities to be educated with nondisabled children and youth to the maximum extent appropriate. The ARC must consider what aids, services, and other supports might be effective in ensuring that a child or youth with disabilities can be educated in regular education program classes. Program modifications and supports for school personnel include services that are provided to the teachers of a child or youth with a disability to help them more effectively work with the child or youth (e.g., staff training). Related Services Related services are those transportation and developmental, supportive, or corrective services that are required for a child or youth with a disability in order for him or her to benefit from special education. Related services:

A. Relate directly to the specially designed instruction that the child or youth needs in order to achieve IEP benchmarks or short-term objectives and directly affect acquisition of essential skills or information;

B. Are required (necessary) for the child or youth to benefit from special education; C. Are described by the type of each service; and D. Are not needed solely for aesthetic or medical reasons.

Participation in Statewide or Districtwide Assessments/Alternate Assessments An IEP shall contain a statement of any individual accommodations to be provided the child in order to participate in the state or districtwide assessment. These accommodations shall be based on the requirements contained in 703 KAR 5:070, Inclusion of special populations in the state-required assessment and the accountability programs. 707 KAR 1:320, Section 5(10) Instructional accommodations or related services that are identified in the IEP are implemented if needed in order for the child or youth to participate in statewide assessments or any other group assessments administered to all students in a classroom. The ARC will determine appropriate testing accommodations for a child or youth based on multidisciplinary evaluation results, present levels of academic achievement and functional performance, annual goals, benchmarks or short-term objectives, and SDI included in the child’s or youth’s IEP. Any testing accommodations must be used consistently as part of routine instruction and classroom assessment and must also meet all

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requirements contained in 703 KAR 5:070, “Procedures for the Inclusion of Special Populations in State-Required Assessment and Accountability Programs.” Accommodations will not inappropriately affect the content being measured. If the ARC determines that the child or youth meets the criteria for participation in the Kentucky Alternate Assessment Program, as provided in 707 KAR 5:070, it will complete the Eligibility for Alternate Assessment Program Form to document its decision. Participation in Least Restrictive Environment An IEP shall contain an explanation of the extent, if any, to which the child will not participate with nondisabled children in regular classes. 707 KAR 1:320, Section 5(9) Each ARC provides evidence that placements in special education classes, a separate school, or other removal of children and youth with disabilities from the regular education program environment occur only when the nature or severity of the disability is such that education in the regular education program class with the use of supplementary aids and services cannot be achieved satisfactorily. In selecting service locations, the ARC identifies any potentially harmful effects of the placement on the child or youth or on the quality of services required. The ARC specifies in writing the modifications to be made to compensate for any identified harmful effect. (See Chapter 6, “Placement Decisions” for additional information.) Based on discussion of least restrictive environment, the ARC outlines the curricular areas in which the child or youth will participate in the ECE program. The ARC will determine if the child or youth will participate in regular education physical education (PE), with or without modifications, or in specially designed PE. Specifying Projected Dates for Initiation, Duration, Location, and Frequency of Services and Modifications An IEP shall include the projected date of the beginning of the services and modifications listed on the IEP and the anticipated frequency, location (whether regular or special education), and duration of the services and modifications. 707 KAR 1:320, Section 5(12) The ARC identifies and lists in the IEP the type of services, including related services, that are required to implement the IEP. For each service, the ARC indicates:

A. The projected date for beginning the service; B. How long the service will be provided (duration); C. The anticipated frequency that the child or youth will receive the service; D. The location of the service (e.g., regular education program classroom, ECE classroom).

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Setting Beginning and Ending Dates The ARC must make an individual determination regarding when special education and related services will begin and end for each child or youth. Decisions regarding this determination for special education and related services are not to be based on the convenience of school staff and/or administration but on the individual needs of each child or youth. The projected dates for beginning and ending services and modifications, as well as the anticipated frequency, location (e.g., regular education program classroom, ECE classroom), and duration of the services and modifications, are listed in the IEP. The initiation date for at least one service falls within the district timeline for identification, evaluation, and placement. Amount of Time The amount of time that services are to be provided must be stated in the IEP so that the level of service is clear to all ARC members. Location of Service The location of services in the context of an IEP refers to the type of environment (whether regular or special education) that is appropriate for the provision of a service. Monitoring of Progress and Reporting to Parents An IEP shall include a statement of: (a) How the child’s progress toward meeting the annual goals will be measured; and (b) When periodic reports on the progress the child is making toward meeting the annual goals, (which may include the

use of quarterly or other periodic reports concurrent with the issue of report cards) will be provided 707 KAR 1:320, Section 5(13) The teacher(s) collect, maintain, and analyze data to determine if the child or youth is making expected progress toward the IEP goals. Progress is reported to parents on the same Report Card schedule as specified by the district for all students. At least annually, the ARC members review ongoing progress data to determine whether the child or youth meets criteria for extended school year services (ESY). (See Chapter 2, “Free Appropriate Public Education”, for more information on ESY services.) SECTION VI TRANSITION SERVICES Preschool Transition For preschool age children with disabilities, a LEA must ensure a smooth and effective transition from the early intervention program to preschool. 707 KAR 1:300, Section 1(2)

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Each LEA shall participate in transition planning conferences for children with disabilities served by early intervention programs. 707 KAR 1:300, Section 1(3) See the subsection titled “Early Intervention Transition Planning” in Chapter 3 for procedures related to preschool transition. Post-School Transition “Transition services” means a coordinated set of activities for a child with a disability that: (a) Is designed to be within a results-oriented process, that is focused on improving the academic and functional

achievement of the child with a disability to facilitate the child’s 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;

(b) Is based on the individual student’s needs, taking into account the child’s strengths, preferences and interests; and (c) Includes: 1. Instruction; 2. Related services; 3. Community experiences; 4. The development of employment and other post-school adult living objectives; and 5. If appropriate, acquisition of daily living skills and functional vocational evaluation. 707 KAR 1:002, Section 1(62) Transition services for children with disabilities may be special education, if provided as specially designed instruction or related services, and if required to assist a child with a disability to benefit from special education. 707 KAR 1:320, Section 7(3) Student in Grade Eight (8) or Age Fourteen (14) or Earlier, If Appropriate In the child’s eighth grade year or when the child has reached the age of fourteen (14) years and in alignment with the child’s Individual Learning Plan (as required by 704 KAR 3:305), or earlier if determined appropriate by the ARC, the IEP for a child with a disability shall include a statement of the transition service needs of the child under the applicable components of the child’s IEP that focus on the child’s course of study. This statement shall be updated annually. 707 KAR 1:320, Section 7(1) The consideration of transition service needs must begin no later than grade eight (8) or age fourteen (14) years. The purpose of this requirement is to focus attention on how the youth’s educational program can be planned to help him or her make a successful transition to life after secondary school. The ARC annually reviews, and revises as needed, the statement of transition service needs in the present levels of academic achievement and functional performance. The focus is typically on instruction beginning at ages fourteen (14) and fifteen (15). At age sixteen (16), the focus expands to include needs as they relate to progress toward postsecondary goals. The statement of transition service needs should relate directly to the youth’s goals beyond secondary education and should show how planned studies are linked to these goals. In determining appropriate, measurable annual goals and services for a student, the ARC must determine what instruction and educational experiences will assist the student in preparing for transition from secondary education to postsecondary life.

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Student Age Sixteen (16) or Younger, If Appropriate By the child’s sixteenth birthday, the IEP shall include: (a) Appropriate measureable postsecondary goals based upon age appropriate transition assessments, related to training,

education, employment, and, where appropriate, independent living skills; and (b) The transition services (including the course of study) needed to assist the child in reaching these goals. 707 KAR 1:320, Section 7(2) Transition services for children with disabilities may be special education, if provided as specially designed instruction or related services, and if required to assist a child with a disability to benefit from special education. 707 KAR 1:320, Section 7(3) Postsecondary goals are those goals that a youth hopes to achieve after leaving high school. Based on assessment information, the ARC develops and documents in the IEP measurable postsecondary goals for employment, education/training, and (as needed) independent living. The ARC uses transition assessment information from the youth’s ILP to begin the discussion of transition needs. In reviewing the ILP, the ARC determines if the student is scheduled to complete high school within four (4) years. The ARC also reviews information from other transition assessments, which may include observations, task analyses, surveys, interviews, interest inventories, self-determination assessments, and career aptitude assessments. Based on these goals, the ARC determines what, if any, transition services are needed in the areas of instruction, community experiences, employment and other post-school adult-living objectives, the acquisition of daily living skills, and functional vocational evaluation. The ARC also determines if the youth needs a related service to facilitate movement from school to post-school activities. Transition planning at this level requires a broader focus on coordination of services and linkages between agencies beyond the district. The ARC determines if the youth needs assistance from other service agencies to make a transition to post-school activities. To the extent appropriate and with the consent of the parent, the ARC chairperson/district representative invites potential service providers (e.g., Kentucky Office of Vocational Rehabilitation, Kentucky Office for the Blind) to be members of the ARC. If an agency, other than the LEA, (or state agency responsible for developing the child’s IEP) fails to provide the transition services described in the IEP, the LEA (or the state agency responsible for developing the child’s IEP) shall reconvene the ARC to identify alternative strategies to meet the child’s transition objectives set out in the IEP. A participating agency shall not be relieved of the responsibility under IDEA§ to provide or pay for any transition service that the agency would otherwise provide to children with disabilities who meet the eligibility criteria of the agency. 707 KAR 1:320, Section 7(4-5) Alternative strategies might include the identification of another funding source, referral to another agency, the public agency’s identification of other districtwide or community resources that it can use to appropriately meet the child’s or youth’s identified needs, or a combination of these strategies. § Individuals with Disabilities Education Act (IDEA)

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Student Age Sixteen (16) Through Eighteen (18) At least one (1) year prior to the child reaching the age of majority, the IEP shall include a statement that the child has been informed of the child’s rights under 707 KAR Chapter 1, and that the rights will transfer to the child upon reaching the age of majority. 707 KAR 1:320, Section 5(14) In the state of Kentucky, the age of majority is age eighteen (18). During the Annual Review meeting when the student is age seventeen (17), the ARC chairperson/district representative will notify the youth that his or her rights under these regulations will transfer to him or her at age eighteen (18). This notification will be documented in the IEP. For further information on this topic, see the “Emancipation” subsection of Section VI, “Representation of Children and Youth” of Chapter 7, “Procedural Safeguards and State Complaint Procedures. SECTION VII SERVICES FOR TRANSFER STUDENTS If a child with a disability transfers between LEAs within the same academic year within Kentucky, and had an IEP in effect in Kentucky, the child shall be provided a free, appropriate public education by the receiving LEA including services comparable to those described in the previous IEP. These services shall be provided in consultation with the parents and until the receiving LEA adopts the previous IEP or develops, adopts, and implements a new IEP. If the child with a disability transfers from an LEA outside Kentucky to an LEA within Kentucky within the same academic year, and had an IEP in effect in the other state, the child shall be provided a free, appropriate public education by the receiving LEA including services comparable to those described in the previous IEP. These services shall be provided in consultation with the parents and until the LEA conducts an evaluation, if determined necessary, and develops, adopts, and implements a new IEP if the child is a child with a disability as defined in 707 KAR 1:002, Section 1(9). To facilitate the transition of a child who transfers, the receiving LEA shall take reasonable steps to obtain the child’s records, including the IEP, supporting documents, and any other records, including discipline records, relating to the provision of special education and related services. The previous LEA shall take reasonable steps to promptly respond to such requests from the receiving LEA. 707 KAR 1:320, Section 6(1-3) Provision of FAPE for a Transfer Student within Kentucky The district makes special education and related services available for children and youth with disabilities who transfer into the district from another LEA within the commonwealth of Kentucky and who were receiving special education and related services according to an IEP at the time of transfer. When a child with a disability enrolls in a district school, the ARC chairperson/district representative or coordinator of ECE Placement/designee contacts the previous school within two (2) school days of the child’s or youth’s enrollment, and a request is made for the following special education records to immediately be sent to the school:

A. The current IEP, including all progress monitoring data and progress reports to parents; B. The meeting summary that pertains to the current IEP;

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C. The parental consent for evaluation and parental consent for special education and related services;

D. The initial evaluation and the most recent reevaluation; E. The current eligibility form; and F. Disciplinary records, if applicable.

If the current IEP is presented at the time of enrollment, the building principal/designee or the coordinator of ECE Placement/designee, in consultation with the parent, arranges for the same services and placement alternative for the transferred child or youth as those provided by the previous service provider. If a copy of the current IEP is not provided at the time of enrollment, the building principal/designee or the coordinator of ECE Placement/designee follows the procedures for temporary placement. Upon implementation of the IEP and collection of ongoing progress data, if any member of the ARC or any implementer of the IEP believes the that IEP is not appropriate to meet the individual needs of the child or youth, then that individual submits a request to the ARC chairperson/district representative to convene the ARC meeting to review the IEP. The ARC chairperson sends written notification of an ARC meeting according to Chapter 7, “Procedural Safeguards and State Complaint Procedures.” The ARC reviews the IEP to evaluate its effectiveness and appropriateness of and to determine appropriate placement. The ARC proceeds with the annual review and revision of the IEP, determination of placement on an annual basis, and three-year reevaluation according to the dates established in the education records. If all required documentation is not received from the previous Kentucky LEA, the district proceeds with a reevaluation in accordance with Chapter 3, “Child Find, Evaluation, and Reevaluation”. The appropriate consents for evaluation and services will be obtained in accordance with Chapter 7, “Procedural Safeguards and State Complaint Procedures.. Temporary Placement The district makes placement for temporary services available for a maximum of thirty (30) school days for children and youth with disabilities who transfer to the district and were receiving special education and related services at the time of transfer. The district makes this placement if:

A. The child or youth transfers from another state or the child or youth transfers from another LEA in the commonwealth of Kentucky and a copy of the current IEP is not available at the time of enrollment;

B. The parent reports that the child or youth has a disability and makes a written request for continuation of the special education and related services previously provided; and

C. The building principal/designee documents that the school from which the child or youth transferred provided special education and related services up to the time of transfer. Documentation may include:

1. A copy of the current IEP (e.g., facsimile copy of the IEP) and a description of placement in the least restrictive environment; or

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2. Written correspondence from or written documentation of verbal communication with the previous service provider describing:

a. The IEP goals and benchmarks or short-term objectives, if applicable; b. The special education and related services; c. The placement in the least restrictive environment; and d. The last eligibility decision and date of the decision.

Note: Facsimile copies are subject to confidentiality requirements in the procedures in Chapter 8, “Confidentiality of Information.” The building principal/designee or the coordinator of ECE Placement/designee, in consultation with the parent, arranges for the same services and placement alternative for the transferred child or youth as those provided by the previous service provider. Education records of the child or youth are requested from the previous provider in accordance with procedures in Chapter 9, “Confidentiality of Information.” The ARC at the school in which the child or youth is enrolled assumes responsibility for educational services. The ARC convenes as soon as possible but no more than thirty (30) school days after the child or youth begins receiving special education and related services on a temporary basis. The ARC chairperson/district representative or coordinator of ECE Placement/designee contacts the previous school within two (2) school days of the child’s or youth’s enrollment, and a request is made for the following special education records to immediately be sent to the school:

A. A copy of the current IEP, including all progress monitoring data and progress reports to parents;

B. A copy of the meting summary that pertains to the current IEP; C. Copies of the parental consent for evaluation and the parental consent for special

education and related services; D. Copies of the initial evaluation and the most recent reevaluation; E. A copy of the current eligibility form; and F. Disciplinary records, if applicable.

If this information is received, the IEP is implemented and an ARC meeting will be scheduled to determine eligibility for continued services. Upon receipt of the education records of the child or youth, the ARC convenes to review evaluation information, review eligibility, review the IEP, and determine placement. The ARC chairperson/district representative sends written notification of an ARC meeting. If the requested information is not received in twenty (20) school days from the date of enrollment, an ARC meeting will be scheduled in order to schedule an evaluation to determine eligibility for services, and to develop a temporary IEP. This IEP will be developed using the IEP from the previous school, information from the parent, information from teachers who have worked with the child or youth in the present school setting, and any other information deemed appropriate by the ARC. The IEP developed at this meeting will be valid only until an ARC meeting can be scheduled,

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within the timelines for reevaluation, to determine eligibility for services. If documentation of previous services is not available, the building principal or director of Pupil Personnel enrolls the child or youth and places him or her in an age-appropriate Comprehensive Program according to the district standard procedures for transfer students. Students who Transfer During the Evaluation Process If a child or youth transfers to the district during the initial evaluation process, the chairperson/district representative contacts the lead psychologist. See Section II, “Admissions and Release Committee Meetings,” in this chapter for further information. SECTION VIII INDIVIDUAL EDUCATION PROGRAM ACCOUNTABILITY Good-Faith Efforts An LEA shall provide special designed instruction and related services to each child with a disability in accordance with his IEP and shall make a good faith effort to assist the child to achieve the goals and objectives or benchmarks in the IEP. 707 KAR 1:320, Section 9(1) The district, the individual schools, and teachers have continuing obligations to make good-faith efforts to assist the child or youth in achieving the goals and objectives or benchmarks listed in the IEP, including those related to transition services. In addition, teachers and other personnel who carry out portions of the child’s or youth’s IEP must be informed about the content of the IEP and their responsibility regarding its implementation. If a child or youth is not progressing as expected in meeting the annual goals or is not progressing as expected in the regular education curriculum (if appropriate), any implementer or ARC member who is concerned about the progress will request an ARC meeting to address the lack of expected progress. Inclusion in Statewide Assessments An LEA shall be responsible for including children with disabilities in the statewide assessment as provided in 703 KAR Chapter 5. 707 KAR 1:320, Section 9(2) Methods for inclusion of children and youth with disabilities in statewide assessments are addressed by the ARC, and decisions are recorded in the IEP. (See Section V, “Contents of the Individual Education Program” of this chapter for more information.) Parents Retain All Due-Process Rights These provisions of this administrative regulation shall not limit the parents’ right to ask for revision of the child’s IEP or to invoke due process procedures if the parents feel that good faith efforts are not being made. 707 KAR 1:320, Section 9(3)

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SECTION IX PLACEMENT AT KENTUCKY SCHOOL FOR THE BLIND AND

KENTUCKY SCHOOL FOR THE DEAF Kentucky School for the Deaf and Kentucky School for the Blind, in conjunction with the child’s resident LEA, shall ensure that an IEP is developed and implemented for each child with a disability placed in its school by an ARC. 707 KAR 1:320, Section 1(2) Initial and Continuing Placement at Kentucky School for the Blind or Kentucky School for the Deaf When there is any indication that services from or placement at the Kentucky School for the Blind (KSB) or the Kentucky School for the Deaf (KSD) may be appropriate for a child or youth, the executive director of ECE/designee will contact appropriate staff at KSB or KSD to invite a representative(s) of that school to the ARC meeting. When a child or youth is enrolled in KSB or KSD, a representative of the district must be invited to all ARC meetings. It is the responsibility of the district to determine who should attend this meeting as the ARC chairperson/district representative and possibly as the regular education program teacher. For the purpose of annual review, staff at KSB or KSD will initiate contact with the executive director of ECE/designee thirty (30) calendar days in advance of a proposed meeting date. KSB or KSD staff will send the written notice of the ARC meeting to the parent and the district within the prescribed timeline. If an ARC meeting is needed for reasons other than annual review, KSB or KSD staff will contact the executive director of ECE/designee and send out notice of the meeting as soon as possible. When parent is not in attendance at any meeting, KSB or KSD staff are responsible for informing the parent of any discussion during the meeting and notice of any proposed or refused action, etc. Appropriate documents will be sent to the parent and the executive director of ECE/designee. Records At the ARC meeting (for initial placement at KSB or KSD), the district is responsible for all paperwork, including the IEP and notice of proposed and refused action. If placement occurs, the ARC chairperson/district representative will ensure that copies of special education records and cumulative record information, including statewide assessment and writing portfolio pieces, are made available to KSB or KSD personnel. After initial placement at KSB or KSD, both the district and the school of placement are responsible for maintaining the records of the child or youth. Records for a child or youth placed at KSB and KSD are maintained and located in the office of the executive director of ECE.

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CHAPTER 6 PLACEMENT DECISIONS

707 KAR 1:350 SECTION I PLACEMENT DECISIONS A LEA*shall ensure that to the maximum extent appropriate, children with disabilities, including children placed by the LEA in public or private institutions or other care facilities, are educated with children who are nondisabled 707 KAR 1:350, Section 1(1) In determining the educational placement of a child with a disability, the LEA shall ensure that the placement decision is made by the ARC† in conformity with the least restrictive environment provisions. 707 KAR 1:350, Section 1(5) In providing or arranging for the provision of nonacademic and extracurricular services and activities, a LEA shall ensure that a child with a disability participates with nondisabled children in those services and activities to the maximum extent appropriate to the needs of the child. 707 KAR 1:350, Section 1 (10) Participation With Children and Youth Who Are Not Disabled To the maximum extent appropriate, children and youth with disabilities, including children who placed by the local educational agency (LEA) in public or private institutions or other care facilities, are educated with children and youth who are not disabled. To reasonably promote educational success, all services and educational placements must be individually determined and must be based on the child’s or youth’s unique abilities and needs. The Jefferson County Public School (JCPS) District makes sure that:

A. Each child or youth with a disability is educated in the school that he or she would attend if not disabled unless the Individual Education Program (IEP) requires some other arrangement;

B. A continuum of placement alternatives are available to the extent necessary to implement the IEP for each child or youth with a disability; and

C. The educational placement of each child or youth with a disability is as close as possible to the home of the child or youth and in accordance with the district student assignment plan.

Additionally, the Admissions and Release Committee (ARC) will consider:

A. That a child or youth with a disability will be placed in a chronologically age-appropriate location/program;

B. In selecting the least restrictive environment, any potential harmful effects on the child or youth or on the quality of services that he needs;

C. That a child or youth with a disability will not be removed from education in age-

* local educational agency (LEA), which means the JCPS District † Admissions and Release Committee (ARC)

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appropriate regular education program classrooms solely because of needed modifications in the regular education curriculum; and

D. Providing or arranging for the provision of nonacademic and extracurricular services for a child or youth with a disability with nondisabled children and youth to the maximum extent appropriate.

Continuum of Alternative Placements An LEA shall ensure that a continuum of alternative placements is available to meet the needs of children with disabilities for special education and related services. The continuum shall include the alternative placements of: (a) Instruction in regular classes; (b) Special classes; (c) Special schools; (d) Home instruction; and (e) Instruction in hospitals and institutions. 707 KAR 1:350, Section 1(2-3) The district makes available a continuum of alternative placements to meet the special education and related services needs of children and youth with disabilities. The continuum of placement alternatives:

A. Includes, but is not limited to, instruction in regular education program classes, special classes, special schools, home instruction, and instruction in hospitals and institutions;

B. Makes provision for supplementary services (e.g., resource or itinerant instruction) to be provided in conjunction with regular education program class placement; and

C. Is available to the extent necessary for implementing the IEP of each child or youth with a disability.

If a child or youth with a disability from another school or facility that is located within or outside the geographic boundaries of the district participates in JCPS District academic and nonacademic programs, the executive director of Exceptional Child Education (ECE)/designee has on file a copy of the arrangements for participation in those programs as well as a copy of the child’s or youth’s IEP, which documents the services to be provided. The executive director of ECE, and/or the building principal arrange(s) for a variety of placement decisions to be implemented in order for each child or youth with disabilities to receive the special education and related services specified in the IEP. Placement Considerations The LEA shall ensure that special classes, separate schooling or other removal of children with disabilities from the regular education environment occurs only if education in the regular education environment with the use of supplementary aids and services cannot be satisfactorily achieved due to the nature or severity of the disability. 707 KAR 1:350, Section 1(1) A child with a disability shall not be removed from education in age-appropriate regular classrooms solely because of needed modifications in the general curriculum. 707 KAR 1:350, Section 1(9)

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The LEA shall make provision for supplementary services to be provided in conjunction with regular class placement. 707 KAR 1:350, Section 1(4) When implementing the IEP of a child or youth with a disability, the ARC first considers full-time placement in the regular education program class in a regular school or in the place where the child or youth would be if he or she were not disabled. “Supplementary aids and services” means aids, services, and other supports that are provided in regular education classes or other education related settings to enable a child with disabilities to be educated with nondisabled students to the maximum extent appropriate in accordance with 707 KAR 1:350. 707 KAR 1:002, Section 1(61) Each ARC specifies in writing the regular education program environment changes that are needed in order to implement the IEP. When appropriate, such changes may include, for example:

A. Changing the physical environment; B. Using supplementary aids and services; C. Reorganizing staff patterns; D. Implementing different modes of instruction; E. Making adaptations to the curriculum; and F. Training personnel in special instructional and behavior-management techniques.

In all cases, placement decisions must be individually determined on the basis of each child’s or youth’s abilities and needs and not solely on such factors as:

A. The category of disability of the child or youth; B. The availability of special education and related services; C. The configuration of the service delivery system; D. The availability of space; or E. Administrative convenience.

The district provides children and youth with disabilities equal opportunities for ongoing participation in the same programs and activities that are available to children and youth without disabilities. In the IEP, the ARC specifies any modifications or adaptations that are necessary for the participation of the child or youth in the educational programs and services. Unless the IEP of a child with a disability requires some other arrangement, the child shall be educated in the school that he would attend if nondisabled. 707 KAR 1:350, Section 1(7) If any ARC member anticipates that the IEP cannot be implemented at the child’s or youth’s assigned school, the ARC chairperson/district representative contacts the coordinator of ECE Placement/designee for assistance in removing barriers to the implementation of the IEP. When the IEP cannot be implemented in the child’s or youth’s assigned school, the ARC chairperson/district representative notifies the coordinator of ECE Placement/designee. He or she arranges for the child or youth to be enrolled in the school that can implement the child’s or youth’s IEP.

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ARC Determination of Placement A child’s placement shall be: (a) Determined at least annually; (b) Based on the child’s IEP; and (c) As close as possible to the child’s home. 707 KAR 1:350, Section 1(6) An ARC will ensure that placement decisions are made after the following IEP components are completed:

A. Present levels of academic achievement and functional performance; B. Special considerations, including behavioral needs, communication needs, English

proficiency, hearing impairment, visual impairment, assistive technology, and physical education;

C. Annual goals, including academic and functional goals; D. Benchmarks or short-term objectives; E. Specially designed instruction (SDI); F. Evaluation procedures; and G. Supplementary aids and services, program modifications, and supports for school

personnel. The placement decisions are described in terms of:

A. Type(s) of service(s) (i.e., special education and related services); B. Location(s) of services(s) (e.g., regular education classroom, special education

classroom); C. Amount of time for service(s); D. Anticipated frequency of service(s); and E. Beginning and ending date of service(s).

An ARC determines placement in the least restrictive environment for a child or youth with a disability. At least once each calendar year, each ARC reviews and revises the IEP and determines the educational placement of each child or youth with a disability who is receiving special education and related services. (See procedures in Chapter 5, “Individual Education Program.”) The ARC identifies any potentially harmful effects of the placement on the child or youth or on the quality of required services. The ARC specifies in writing the modifications to be made to compensate for any identified harmful effects. Placement Issues When the placement decision is made, the ARC chairperson/district representative gives notice of proposed or refused action to the parent in accordance with Chapter 7, “Procedural Safeguards and State Complaint Procedures.” If this is an initial placement for the child or youth with a disability, the ARC chairperson/district representative requests that the parent sign a consent form for initial services in a program that provides special education and related services.

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If the parent does not attend the meeting, the ARC chairperson/district representative sends the notice of proposed or refused action to the parent with a request for consent for initial services, if appropriate. If it is a parent’s wish that his or her child or youth attend another school for reasons other than educational need (e.g., child-care), this is not a placement decision for the ARC. The parent must request a transfer in accordance with district procedures. If the ARC does not complete the placement decision in the initial meeting, the ARC chairperson/district representative and parent agree upon a convenient date, time, and location to continue the meeting to complete the decision-making process. If, at any point during a meeting, an ARC member believes that there is insufficient data to make a placement decision and the other ARC members concur, then the ARC chairperson/district representative schedules another meeting to determine placement and assigns ARC members and others further data-collection duties. The child or youth continues in the current placement unless the ARC develops an interim course of action and the parent agrees to it. (See procedures in Chapter 5, “Individual Education Program.”) If the parent and district cannot agree on an interim measure, then the ARC chairperson/district representative states the district’s position and reminds the parent of his or her right to request mediation or a due-process hearing according to procedures in Chapter 7, “Procedural Safeguards and State Complaint Procedures.” Transfer From Another District or Educational Agency For a child or youth with a disability who transfers to the district, see procedures in Section VIII, “Services for Transfer Students” of Chapter 5. SECTION II CHANGE IN PLACEMENT/SERVICES Decisions regarding a change of placement/services are subject to established ARC procedures and are based on placement in the least restrictive environment. An ARC follows these procedures when making change-of-service decisions. Change in services include the following:

A. An initiation of or changes in special education and related services B. A change in special education placement setting (e.g., regular education program class to

resource class; resource class to special class); C. A release due to concluding special education and related services and resuming full-time

regular education program services; D. Disciplinary removals, if considered a change in placement according to procedures in

Chapter 7, “Procedural Safeguards and State Complaint Procedures;”

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E. Graduating with a diploma; F. Completing of a nondiploma program (certificate of attainment); G. Aging out of eligibility for services; and H. Implementation of a shortened school day;

The ARC reviews and revises the IEP as necessary to determine the placement, or to make a change in placement, for a child or youth with a disability who is receiving special education and related services. The ARC chairperson/district representative initiates a meeting to review the IEP in relation to the performance of the child or youth and to redetermine placement in the least restrictive environment. This meeting is initiated:

A. At least annually and before the scheduled IEP review date expires; B. When the parent requests a meeting to consider placement; C. When a teacher, related-service provider, or other ARC member requests a meeting

because data indicate that the IEP or placement may not be appropriate for the child or youth; or

D. When long-term removal (suspension) is being considered for a child or youth. The ARC follows procedures for a disciplinary change in placement as described in Chapter 7, “Procedural Safeguards and State Complaint Procedures.”

The ARC reviews all reports, ongoing progress data, and evaluation data to determine and document the degree of progress and achievement toward meeting IEP goals. The ARC members decide to:

A. Revise the IEP and determine placement in accordance with procedures in this chapter; or B. Release the child or youth from special education and return him or her to the regular

education program. Release From Special Education and Related Services A child or youth concludes special education and related services when an ARC determines that the child or youth no longer needs special education and related services. The ARC releases a child or youth when he or she concludes special education and related services and resumes full-time regular education program services. This means that the ARC determines that the child or youth:

A. Can function in the regular education program without special education and related services; and

B. Has reached an educational achievement level that falls within the expected performance range for the course of study followed by similar-age peers who do not have disabilities (i.e., the disability no longer adversely affects his or her education); or

C. Is no longer identified as educationally disabled (e.g., a child or youth who has had surgery to correct vision or hearing problems, a child or youth whose misarticulations have been corrected).

To determine the regular education program environment for the child or youth, the ARC identifies

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where the student would be if not disabled. The principal arranges for each student whom an ARC releases to return to the placement that the child or youth would have been if he or she had not been determined disabled and in need of special education and related services. Note: Prior to releasing a child or youth from special education services, the ARC must

complete the reevaluation procedures in accordance with procedures in Chapter 3, “Child Find, Evaluation, and Reevaluation.”

Transfer and Withdrawal From School Prior to Program Completion Transfer means the child leaves a particular school district’s program and enrolls in another educational program. Withdrawal means that a youth leaves the educational system prior to completing the prescribed program of study. Withdrawal and transfer procedures for a child or youth with a disability are the same as those for a child or youth without a disability. If a youth with a disability who is age sixteen (16) to twenty-one (21) withdraws prior to program completion (i.e., drops out), the district provides a written notice that the youth is entitled to a free appropriate public education (FAPE) in accordance with procedures in Chapter 7, “Procedural Safeguards and State Complaint Procedures.” The withdrawal (i.e., dropouts) of children and youth with disabilities is verified monthly through district attendance procedures. The coordinator of ECE Placement/designee sends written notification to the parent (if the youth is between the ages of sixteen [16] and eighteen [18]) and to the youth (if the youth is age eighteen [18] or older or is emancipated). The written notification states that the youth is entitled to FAPE in order to assist him or her in preparing for post-school options and that the youth is entitled to re-enroll in order to obtain a diploma, to complete a planned program, or until the youth’s twenty-first (21st) birthday. Graduating With a Diploma Graduate means that a youth has completed the established program of study that leads to the receipt of a diploma and, therefore, leaves the school system. In accordance with procedures in Chapter 5, “Individual Education Program”, the ARC plans an appropriate multiyear course of study for a youth no later than age fourteen (14). This course of study leads to graduation and a diploma. At the annual review meeting prior to a youth’s expected graduation date, the ARC:

A. Reviews the youth’s progress in the current program; B. Reviews — and revises, if appropriate — the IEP; C. Determines if the youth meets, or is scheduled to complete at the conclusion of the

coming school year, the requirements for graduation. The ARC makes this determination by checking earned credits in the youth’s education record against the requirements established by the Kentucky Board of Education;

D. Determines any support or assistance that the youth needs in order to successfully

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participate in the commencement ceremonies (e.g., diploma in Braille, wheelchair access); and

E. Documents on the meeting summary, or on the IEP as appropriate, all decisions of the committee.

Graduating with a diploma is considered a change in services in that the youth’s eligibility for special education and related services ceases. Graduation is subject to notice requirements according to procedures in Chapter 7, “Procedural Safeguards and State Complaint Procedures.” However, there is no requirement for a reevaluation prior to this change in placement. In the district, each youth with a disability has an opportunity to complete high school and to follow the same course of study available to youth who are not disabled. The district grants a high school diploma to each youth with a disability who meets the required graduation criteria and standards as established by the Kentucky Board of Education and the Jefferson County Board of Education. Upon completion of the minimum requirements for graduation, the youth participates in commencement exercises and receives a diploma. Prior to the commencement ceremony, school personnel determine any supports or assistance the youth will need in order to successfully participate in the ceremonies (e.g., diploma in Braille, wheelchair access). No distinction regarding disability is made. Completion of Nondiploma Program (Certificate of Attainment) A youth with a disability who meets the criteria for an alternative assessment is issued a certificate of attainment upon completing a program designed by the ARC. At the annual review meeting prior to a youth completing requirements for a certificate of attainment, the ARC:

A. Reviews the youth’s progress in the current program; B. Reviews/Revises the IEP; and C. Documents the decisions of the committee in the meeting minutes.

The youth participates in commencement exercises and receives a certificate of attainment. No distinction regarding disability is made. Prior to the commencement ceremony, school personnel determine any supports or assistance the youth will need in order to successfully participate in the ceremonies (e.g., diploma in Braille, wheelchair access). Release Due to Aging Out Age out means that the age of the youth exceeds the mandated service age for FAPE and that the school district is no longer required to provide special education and related services to the youth. This is a change of placement; however, a reevaluation is not required for a youth who exceeds the age eligibility for FAPE. Each August, the ARC chairperson/district representative uses the child tracking system to identify any youth with a disability who is over age eighteen (18) and has not been identified as a last-year student (i.e., senior). During the IEP annual review meeting, the ARC:

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A. Reviews the youth’s progress in the current program; B. Determines the last date of services based on the youth’s twenty-first (21st) birthday and

current board policy; and C. Reviews/Revises the IEP, including needed programs and services, so that the youth can

complete a program or graduate, if possible, and be referred to appropriate adult services prior to aging out.

The ARC chairperson/district representative discusses with the parent the meaning of aging out and that explains that special education and related services will cease on the date determined in B above. Summary of Performance For students who graduate or age out of the program, the LEA shall provide the child with a summary of the child’s academic achievement and functional performance including recommendations on how to assist the child in meeting the child’s postsecondary goals. 707 KAR 1:300, Section 4(21) For youths who are graduating with a diploma, receiving a certificate of attainment, or aging out of the program, school personnel will provide the youth with a summary of the child’s academic achievement and functional performance including recommendations on how to assist the youth in meeting his or her postsecondary goals. Length of School Day “School day” means any day, including a partial day, that children are in attendance at school for instructional purposes. School day means the same thing for all children in school, including children with or without disabilities. 707 KAR 1:002, Section 1(53) The ARC makes sure that the length of the instructional school day for each child or youth with a disability is the same as it is for children and youth without disabilities, unless otherwise specified on an IEP. An ARC does not shorten or lengthen the school day for a child or youth with a disability for the purposes of transportation, administrative convenience, or parent requests. If an ARC determines that a child or youth with a disability needs a change in the length of the school day due to a medical condition, the determination is based on written evidence, which includes:

A. A statement from a licensed physician, advanced registered nurse practitioner, psychologist, psychiatrist, or public health officer. The statement describes the medical or mental condition of the child or youth and its impact on his or her ability to participate in a full instructional day;

B. The anticipated duration of the need for an altered length of the school day; C. A description of any changes/modifications in the curriculum, instruction, classroom

arrangements, and support services that are needed in order to maintain the child or youth in a full instructional day; and

D. Any harmful effects on the child or youth if the length of the school day is not altered.

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If the ARC determines that the instructional day is to be altered for a child or youth, the ARC revises the IEP to reflect changes in the program. In the meeting summary, the ARC describes:

A. The issues discussed, the data used to make decisions, the options considered (both accepted and refused) and why; and

B. The decision regarding the anticipated duration of the need for an altered length of the school day and any special accommodations that are necessary for returning the child or youth to a full instructional day.

Within two (2) business days of an ARC’s decision to alter the length of a school day for a child or youth with disabilities, the ARC chairperson/district representative informs the coordinator of ECE Placement of the ARC’s decision and sends the coordinator a copy of all due-process forms and a copy of the health provider statement. The coordinator of ECE Placement submits all required paperwork to the Kentucky Department of Education (KDE). SECTION III CASELOAD AND CLASS SIZE FOR EXCEPTIONAL CHILD

EDUCATION CLASSROOMS The district operates ECE classes according to membership for each disability and class plan as outlined in the table provided below. “Caseload for special classes” means the number of children with disabilities assigned to a teacher of exceptional children for the purpose of providing individualized specially designed instruction and related services in a special class setting. 707 KAR 1:002, Section 1(7) Caseload for resource teachers shall refer to the maximum number of student records a teacher may be assigned. 707 KAR 1:350, Section 3 “Class size for resource classes” means the number of children with disabilities assigned to a teacher of exceptional children per period, block, or specified length of time set by the individual school. 707 KAR 1:002, Section 1(10) “Caseload for special classes” means the number of children with disabilities assigned to an ECE teacher for the purpose of providing individualized special education and related services in a special class setting. “Caseload for resource teachers” refers to the maximum number of student records to which a teacher can be assigned. “Class size for resource classes” means the number of children with disabilities assigned to an ECE teacher per period, block, or specified length of time set by the individual school.

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Disability and Class Plan

Caseload Total Age Range for Caseload

Maximum Number per Period

Age Range per Period

Visually Impaired

Special Class Resource

10 10

6 Years 6 Years

NA 8

NA

4 Years Hearing Impaired

Special Class Resource

6 8

4 Years 6 Years

NA 8

NA

4 Years Physically Disabled and Other Health Impaired

Special Class Resource Class

16 20

6 Years 6 Years

NA 10

NA 6 Years

Speech/Language 65 NA NA NA Emotional-Behavioral Disability


8 15

4 Years 6 Years

NA 8

NA 4 Years

Mild Mental Disability

Special Class Primary–6

Secondary 7–12

15 15

4 Years 4 Years

NA NA

NA NA

Resource Class

Primary–5 6

Secondary 7–12

15 15 20

6 Years 6 Years 6 Years

8 10 10


Functional Mental Disability


10 10

6 Years 6 Years

NA 8

NA 6 Years

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Specific Learning Disability

Special Class Primary–6

Secondary 7–12

10 15

4 Years 4 Years

NA NA

NA NA

Resource Class

Primary–5 6

Secondary 7–12

15 15 20


8 10 10


Multiple Disabilities


10 10

6 Years 6 Years

NA 8

NA

6 Years Children with disabilities that meet the definition of autism; deaf-blindness; developmental delay for ages six (6), seven (7), and eight (8); and traumatic brain injury shall be served in regular classes, special classes, or resource classes as determined by the ARC. 707 KAR 1:350, Section 2(3) “Collaboration” means, for purposes of determining class size in 707 KAR 1:350, Section 2, a teacher of exceptional children works with children with disabilities in the regular classroom to provide specially designed instruction and related services. 707 KAR 1:002, Section 1(11) If a teacher of exceptional children provides services through the collaborative model, the maximum caseload shall not exceed twenty (20) children with disabilities for secondary, and fifteen (15) children with disabilities for primary. 707 KAR 1:350, Section 2(4) Children with disabilities that meet the definition of autism; deaf-blindness; developmental delay (DD) for ages six (6), seven (7), and eight (8); and traumatic brain injury (TBI) shall be served in regular classes, special classes, or resource classes as determined by the ARC. “Collaboration” means, for the purposes of determining class size, that an ECE teacher works with children with disabilities in the regular education classroom to provide special education and related services. If an ECE teacher provides services through the collaborative model, the maximum caseload shall not exceed twenty (20) children with disabilities at the secondary level, and fifteen (15) children with disabilities at the primary level. The district submits a waiver request to KDE when the caseload for special classes and resource teachers or the class size for resource classes exceeds the maximum number, which is specified in 707 KAR 1:350, for thirty (30) days. Appendix A outlines state regulations regarding the caseload for special classes and resource teachers and the class size for resource classes. Based on the needs of students and teacher preference, the maximum number of students per period may exceed the numbers specified in the table provided in this section but may not exceed the numbers in the sections provided in Appendix A.

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APPENDIX A

CASELOAD AND CLASS SIZE PER 707 KAR 1:350

Section 1 “Caseload for special classes” means the number of children with disabilities assigned to a teacher of exceptional children for the purpose of providing individualized special education and related services in a special class setting. 707 KAR 1:350, Section 2(1), outlines caseloads for special classes according to the box below. An LEA shall provide special education for each child with a disability in accordance with the following maximum caseloads for special classes: (a) Emotional-behavior disability is eight (8); (b) Functional mental disability is ten (10); (c) Hearing impairment is six (6); (d) Mild mental disability is fifteen (15); (e) Multiple disabilities is ten (10); (f) Orthopedic impairment is sixteen (16); (g) Other health impairment is sixteen (16); (h) Specific learning disability for primary is ten (10) and for secondary is fifteen (15); and (i) Visual impairment is ten (10). Section 2 “Caseload for resource teachers” shall refer to the maximum number of student records for which a teacher can be assigned. 707 KAR 1:350, Section 3, outlines caseloads for resource teachers according to the box below. A LEA shall make those assignments based on the following: (a) emotional-behavioral disability is fifteen (15); (b) Functional mental disability is ten (10); (c) Hearing impairment is eight (8); (d) Mild mental disability for primary is fifteen (15) and for secondary is twenty (20); (e) Multiple disabilities is ten (10); (f) Orthopedic impairment is twenty (20); (g) Other health impairment is twenty (20); (h) Specific learning disability for primary is fifteen (15) and for secondary is twenty (20); (i) Visual impairment is ten (10); and (j) Speech language pathologist caseload limits as contained in KRS 334A.190. Caseload limitations for speech-language pathologists in the public schools. (1) The caseload limitations for speech-language pathologists in the public schools shall not exceed sixty-five (65) pupils.

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(2) The total caseload of speech-language pathologists who supervise assistants may be increased by no more than one-half (1/2) of the amount set forth in subsection (1) of this section for each speech-language pathology assistant working under their supervision. KRS 334A.190 Section 3 “Class size for resource classes” means the number of children with disabilities assigned to a teacher of exceptional children per period, block, or specified length of time set by the individual school. 707 KAR 1:350, Section 2(2), outlines class sizes for resource classes according to the box below. An LEA shall provide special education for each child with a disability in accordance with the following maximum caseloads for resource classes: (a) Emotional-behavior disability is eight (8); (b) Functional mental disability is eight (8); (c) Hearing impairment is eight (8); (d) Mild mental disability is ten (10); (e) Multiple disabilities is eight (8); (f) Orthopedic impairment is ten (10); (g) Other health impairment is ten (10); (h) Specific learning disability is ten (10); and (i) Visual impairment is eight (8).

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CHAPTER 7 PROCEDURAL SAFEGUARDS AND STATE COMPLAINT PROCEDURES

707 KAR 1:340, SECTIONS 1—12 SECTION I NOTICE—PARENT PARTICIPATION IN MEETINGS Written Notice of Admissions and Release Committee Meetings A parent of a child with a disability shall be afforded an opportunity to participate in all ARC meetings concerning his child. The LEA* shall provide parents a written notice of ARC† meetings in accordance with this administrative regulation. 707 KAR 1:340, Section 1(1)(b),(2) The Admissions and Release Committee (ARC) chairperson/district representative takes steps to make sure that one or both of the parents of the child or youth are present at each meeting concerning their child or youth or are afforded the opportunity to participate. These steps include:

A. Notifying parents 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 time, date, and location. Except for meetings concerning a disciplinary change in placement or a safety issue, an LEA shall provide written notice to the parents of child with a disability at least seven (7) days before a meeting in which the LEA: (a) Proposes to initiate or change the identification, evaluation, or educational placement of the child or the provision of

FAPE‡ to the child; or (b) Refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of

FAPE to the child. An LEA shall provide written notice to the parents of a child with a disability at least twenty-four (24) hours before a meeting concerning a safety issue or change in placement due to a violation of a code of student conduct. 707 KAR 1:340 Section 3(1-2) Each written notice, which is sent by the ARC chairperson/district representative/designee in accordance with Section III of this chapter, is sent seven (7) calendar days prior to the scheduled meeting unless:

A. The parent and ARC chairperson/district representative agree otherwise; or B. The meeting is concerning a safety issue or change in placement due to a violation of

a code of conduct. A copy of each written notice is maintained in the education record of the child or youth. The ARC chairperson/district representative determines the language or mode of communication used by the parent and provides notice in that language or mode of communication unless it is clearly not feasible to do so. The native language of the parent of a child or youth is the primary * local educational agency (LEA) which means the Jefferson County Public School (JCPS) District † Admissions and Release Committee (ARC) ‡ Free and appropriate public education (FAPE)

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language used in the home (i.e., the language most frequently used for communication by the parent). If the native language or mode of communication is not English, the ARC chairperson/district representative informs the executive director of Exceptional Child Education (ECE)/designee of the need for a translation or interpretation of the notice. The executive director of ECE/designee makes sure:

A. That the notice is translated orally or by other means to the parent in his or her native language or other mode of communication; and

B. that there is written evidence that these requirements have been met. The executive director of ECE/designee obtains the necessary translation or interpretation of a notice. Copies of all letters of correspondence involved in securing the necessary interpretation or translation of a notice and a copy of the translation are maintained in the office of the executive director of ECE. A LEA may conduct an ARC meeting without a parent in attendance if the LEA is unable to convince the parent to attend. The LEA shall keep a record of its attempts to arrange a mutually agreed on time and place. The records may include : (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; or (c) Detailed records of visits made to the parent’s home or place of employment and the results of those visits. 707 KAR 1:340, Section 1(3) If the ARC chairperson/district representative is unable to convince the parent that he or she should attend, a meeting may be conducted without a parent in attendance, as long as the ARC chairperson/district representative maintains records of the attempts to arrange a mutually agreed upon date, time, and location. See Chapter 5, “Individual Education Program,” for more specific procedures. Inspection and Review of Records A parent of a child with a disability shall be afforded an opportunity to inspect and review all records with respect to identification, evaluation and educational placement of the child and the provision of FAPE to the child. 707 KAR 1:340, Section 1(1)(a) The Jefferson County Public School (JCPS) District permits parents to review and inspect any education record that IS collected, maintained, or used by the district and that is related to the identification, evaluation, and placement of their child or youth or to the provision of a free appropriate public education (FAPE) to the child or youth. The same access rights apply to the eligible student (age eighteen [18] or older) and to youth who are emancipated. The district allows either parent (including a biological or adoptive parent/guardian or an individual acting as a parent) access to the education records of a child or youth unless the district is presented with written evidence of a court order relating to such matters as divorce, separation, or custody. This document must specifically revoke parental rights regarding access to records in order for the district to deny a parent access to his or her child’s or youth’s education records. See Chapter 9, “Confidentiality of Information,” for more specific procedures.


Conversation Without a Parent Present LEA staff shall not be limited by 707 KAR Chapter 1, from having informal, or unscheduled conversations on issues which may include: (a) Teaching methodology; (b) Lesson plans; (c) Coordination of service provision; or (d) Preparatory activities that the LEA personnel engage in to develop a proposal or response to a parent proposal that

will be discussed at a later ARC meeting. 707 KAR 1:340, Section 1(4) ARC meetings are scheduled meetings that require written notice to parent. At an ARC meeting, district personnel and parents come together at the same time and place to discuss and make decisions about the identification, evaluation, and educational placement of the child or youth and the provision of FAPE to him or her. ARC meetings are not activities or meetings where district personnel work together to develop a proposal or a response to a parent proposal that will be discussed in an ARC meeting. Discussions between teachers, administrators, and/or district staff regarding teaching methodologies, lessons plans, or coordination of services are not meetings for which parents must receive notice and the opportunity to attend. SECTION II INDEPENDENT EDUCATIONAL EVALUATION Parental Right to an Independent Educational Evaluation A parent of a child with a disability shall have a right to obtain an independent educational evaluation of the child. 707 KAR 1:340, Section 2(1) A parent shall be entitled to only one (1) independent educational evaluation at public expense each time the public agency conducts an evaluation with which the parents disagree. 707 KAR 1:340, Section 2(6) Parents may request only one (1) independent educational evaluation following a completed evaluation conducted by the district. In order for the parent to request an independent educational evaluation, he or she must disagree with the complete evaluation that the district conducted on the child or youth. The LEA may ask for the parent’s reasons why he objects to the LEA’s evaluation; however, the parent shall not be required to respond and the LEA shall not delay its action under subsection (3) of this section while waiting for a response from the parent. 707 KAR 1:340, Section 2(4) If a parent requests an independent educational evaluation at public expense because the parent disagrees with an evaluation obtained by the LEA, the LEA shall, without unnecessary delay: (a) Initiate a due process hearing to show that its evaluation is appropriate; or (b) Ensure that an independent educational evaluation is provided at public expense unless the LEA demonstrates in a

due process hearing that the evaluation obtained by the parent did not meet LEA criteria. 707 KAR 1:340, Section 2(3)


If a parent requests an independent educational evaluation, the LEA shall provide information to the parent about where an independent educational evaluation may be obtained and the LEA’s applicable criteria for independent educational evaluations. 707 KAR 1:340, Section 2(2) The ARC chairperson/district representative is responsible for giving the parent information on obtaining an independent educational evaluation and the district criteria for such evaluations, in accordance with Chapter 3, “Child Find, Evaluation, and Reevaluation.” Procedures regarding test criteria and qualifications of the examiner can be found in Section V, “Evaluation/Reevaluation” of Chapter 3. If the LEA initiates a due process hearing after receiving a request for an independent educational evaluation, and the final decision is that the LEA’s evaluation is appropriate, the parent still shall have the right to an independent educational evaluation, but not at public expense. 707 KAR 1:340, Section 2(7) Public Expense 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, shall be the same as the criteria that the LEA uses when it initiates an evaluation. Aside from these criteria, the LEA shall not impose any other conditions or timelines relating to obtaining an independent educational evaluation at public expense. 707 KAR 1:340, Section 2(5) If a due process hearing officer, as part of a hearing, requests an independent educational evaluation, the cost of that evaluation shall be at public expense. 707 KAR 1:340, Section 2(9) Private Expense (Parent) If the parent obtains an independent educational evaluation at public or private expense and it meets the agency criteria, results of the evaluation shall be considered by the LEA in any decision made with respect to the provision of a free appropriate public education (FAPE) to the child. 707 KAR 1:340, Section 2(8) If the parent obtains an independent educational evaluation at public or private expense, the ARC considers the results of the evaluation, if it meets the district’s criteria, in any decisions made concerning the eligibility for and provision of special education and related services. SECTION III NOTICE OF PROCEDURAL SAFEGUARDS (PARENT RIGHTS) A copy of the procedural safeguards notice (including, parent’s rights) shall be given to the parents of a child with a disability one (1) time a school year. A copy of the notice shall also be provided to the parent: (a) Upon initial referral or parent request for evaluation; (b) Upon the receipt of the first state written complaint; (c) Upon the receipt of the first filing of a due process hearing in a school year; (d) In accordance with the discipline procedures in which a decision is made to remove a student which constitutes a

change in placement, because of a violation of the code of student conduct; and (e) Upon request by a parent. The procedural safeguards notice shall include a full explanation of all the procedural safeguards available under 707 KAR Chapter 1 and 34 CFR Section 300.504. 707 KAR 1:340, Section 4(1-2)


The district will provide the parents with a copy of the procedural safeguards notice. A copy will be provided:

A. At least once a year; B. Upon initial referral or parent request for evaluation; C. Upon receipt of the first written state complaint; D. Upon receipt of the first filing of a due-process hearing in a school year; E. Upon a decision to remove a student when the decision constitutes a change in

placement because of a violation of the JCPS Code of Acceptable Behavior and Discipline; and

F. Upon request by the parent. Additionally, at every ARC meeting, the ARC chairperson/district representative offers the parent a copy of the procedural safeguards notice and offers to review it. SECTION IV WRITTEN NOTICE OF PROPOSED OR REFUSED ACTION

(MEETING SUMMARY) The notice required by subsections (1) and (2) of this section shall include: (a) A description of the action proposed or refused by the LEA; (b) An explanation of why the LEA proposes or refuses to take the action; (c) A description of any other options the LEA considered and the reasons why those options were rejected; (d) A description of each evaluation procedure, test, record, or report the LEA used as a basis for the proposed or

refused action; (e) A description of any other factors that are relevant to the LEA’s proposal or refusal; (f) A statement that the parents of a child with a disability have protection under the procedural safeguards in 707 KAR

Chapter 1 and 34 CFR Section 300.504, and if this notice is not an initial referral for evaluation, the means by which a copy of the procedural safeguards can be obtained; and

(g) Sources for the parents to contact to obtain assistance in understanding the provision of this section. 707 KAR 1:340, Section 3(3) If the parent attends the meeting, then copies of the proposed or refused action (meeting summary) and a copy of the Individual Education Program (IEP), if applicable, are given to the parent at the close of the meeting. Parents receive a notice of the proposed or refused action (meeting summary) regardless of whether they attend the ARC meeting. This notice is accomplished by mailing — within two (2) school days of the date the meeting was held — the meeting summary form, with a copy of the procedural safeguards notice and the proposed IEP, if applicable, to the parents who did not attend the meeting. For any change in special education and related services, the proposed action may be implemented immediately if the parent received notice in the meeting and within seven (7) calendar days after the meeting if no parent attended the meeting and no response is received from the parent.


The notice required by subsections (1) and (2) of this section shall be written in language understandable to the general public and provided in the native language or other mode of communication of the parent unless it is clearly not feasible to do so. If the native language of the parent is not a written language, the LEA shall take steps to ensure that the notice is translated orally or by other means so that the parent understands the content of the notice and that there is written evidence of the translation. 707 KAR 1:340, Section 3(4) The ARC chairperson/district representative makes sure that written notices are understandable to the general public (i.e., free of jargon, includes explanations of acronyms). The ARC chairperson/district representative determines the language or mode of communication used by the parent and provides notice in that language or mode of communication unless it is clearly not feasible to do so. The native language of the parent is the primary language used in the home (i.e., the language most frequently used for communication by the parent). If the native language or mode of communication is not English, the ARC chairperson/district representative informs the executive director of ECE of the need for a translation or interpretation of the notice. The executive director of ECE makes sure:

A. That the notice is translated orally or by other means to the parent in his or her native language or other mode of communication; and

B. That there is written evidence that these requirements have been met. The executive director of ECE obtains the necessary translation or interpretation of a notice. A copy of the translation and copies of all letters or correspondence involved in securing the necessary interpretation or translation of a notice are maintained in the office of the executive director of ECE. SECTION V PARENTAL CONSENT “Consent” means: (a) A parent has been fully informed of all information relevant to the activity for which consent is sought, in his native

language, or other mode of communication; (b) A parent understands and agrees in writing to the carrying out of the activity for which his consent is sought, and the

consent describes the activity and lists the records, if any, that will be released and to whom; and (c) A parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at any

time; and (d) If a parent revokes consent, that revocation does not negate an action that has occurred after the consent was given

and before the consent was revoked. 707 KAR 1:002, Section 1(15) The LEA shall obtain informed parental consent before conducting an initial evaluation or reevaluation and before the initial provision of specially designed instruction and related services. 707 KAR 1:340, Section 5(1) Parental consent shall not be 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 children unless consent is required of all parents

before the administration of the test or evaluation. 707 KAR 1:340, Section 5(8) The ARC chairperson/district representative files a copy of each written consent statement in the education record of the student.


The ARC chairperson/district representative makes sure that the parent gives consent voluntarily by:

A. Providing the parent with all relevant information; and B. Giving the parent time to consider the request for consent.

Consent is not required for the following actions:

A. Reviewing existing data as part of an initial evaluation or a reevaluation; and B. Administering a test or other evaluation that is administered to all children and youth

unless consent is required of parents of all children and youth. Consent for Initial Evaluation The ARC chairperson/district representative obtains written, informed parental consent before any procedures are used selectively with an individual child or youth to determine if he or she has a disability and needs special education and related services. The consent for initial evaluation is obtained on the consent form provided by the district and includes a description of the types of individual evaluation tests and procedures that will be used selectively with the child or youth in all areas related to the suspected disability. Areas related to the suspected disability may include, for example, physical functioning, social and emotional status, general intelligence, academic performance, and communication status. The written consent form includes a place for the date and the parent’s signature and states that the parent understands and agrees:

A. To the multidisciplinary team conducting a full and individual evaluation of the child or youth in all areas related to the suspected disability; and

B. That consent is given voluntarily; and C. That consent may be revoked at any time and that the revocation is not retroactive.

In accordance with procedures in Section III of this chapter, the request for consent to evaluate should be accompanied by the written notice (meeting summary) of the ARC’s proposed action to evaluate the child or youth. Consent When the Child Is in the Custody of the State or Foster Child If the child is in the custody of the state and is not residing with the child’s parent, the LEA is not required to obtain consent from the parent for initial evaluations to determine the eligibility of the child if: (a) Despite reasonable efforts, the LEA cannot discover the whereabouts of the parent(s); (b) The rights of the parent(s) have been terminated by a court of competent jurisdiction; or (c) The rights of the parent(s) to make educational decisions have been subrogated by a court of competent jurisdiction

and an individual appointed by the court to represent the child has been given consent to the initial evaluation. 707 KAR 1:340, Section 5(3)


If the child is a foster child and does not reside with the child’s parents, the LEA shall make reasonable efforts to obtain the informed consent of the parent for an initial evaluation. The LEA shall not be required to obtain this consent if: (a) Despite reasonable efforts, the LEA cannot discover the whereabouts of the parent; (b) The rights of the parents have been terminated in accordance with state law; or (c) The rights of the parents to make educational decisions have been subrogated by a court in accordance with state law

and the consent for initial evaluation has been given by someone appointed by the judge to represent the child. 707 KAR 1:340, Section 6(1) The district does not require parental consent for the initial evaluation of children and youth who are in the custody of the state or who are in foster care when:

A. Despite reasonable efforts, the district cannot discover the whereabouts of the parent; B. The rights of the parent have been terminated by a court of competent jurisdiction and

this termination is on file in the student record; or C. The district discovers that the rights of the parent to make educational decisions have

been subrogated by a court of competent jurisdiction and when an individual appointed by the court to represent the child has given consent to the initial evaluation.

The ARC chairperson/district representative follows the procedures for representation of children outlined in this chapter. The ARC chairperson/district representative maintains detailed records, including the date of the attempted contact and the name of the person attempting the contact. The records, copies of any correspondence sent to the parent, and any response received are filed in the child’s special education record. Consent for Provision of Special Education and Related Services The ARC chairperson/district representative obtains written, informed parental consent prior to the first time a child or youth receives special education and related services (initial placement). The consent statement explains that special education and related services will be provided as described in an IEP and in the placement specified by the ARC in the IEP. The written consent form includes a place for the date and the parent’s signature and states that the parent understands and agrees:

A. To the provision of special education and related services in the least restrictive environment; and

B. That consent is given voluntarily; and C. That consent may be revoked at any time and that the revocation is not retroactive.

The written consent to provide special education and related services is accompanied by the written notice of the ARC proposed action (meeting summary) that the child or youth is determined to be disabled and is eligible to receive special education and related services. Once the parent gives consent for a child or youth with disabilities to receive special education and related services, the district does not require any additional written consent from the parent for


continued placement or for the child or youth to continue to receive special education and related services. After the child’s or youth’s initial placement, any changes in his or her special education program are subject to prior notice requirements but are not subject to additional written parental consent. If the parent revokes consent, the child or youth would receive his or her education in all regular education classes with no services or supports from an IEP. Consent for Reevaluation The LEA shall obtain consent before conducting a reevaluation of a child with a disability. If the parent refused to consent, the LEA may pursue the reevaluation by using the procedures in this administrative regulation for mediation, dispute resolution meeting, or a due process hearing. Parental consent for reevaluation shall not be required if the LEA can demonstrate that: (a) It made reasonable efforts to obtain such consent and followed the procedures in subsection (4) of this section of this

administrative regulation to show those efforts; and (b) The parent failed to respond. 707 KAR 1:340, Section 5(6-7) If the parent responds and refuses to consent to the proposed reevaluation, the procedures in the next section must be followed. (Also see Chapter 3, “Child Find, Evaluation, and Reevaluation.”) Denial or Revocation of Parental Consent If the parent of a child with a disability refuses to consent to the initial evaluation or fails to respond to a request to provide consent, the LEA may pursue the initial evaluation by using the procedures in this administrative regulation for mediation, dispute resolution meeting, or a due process hearing. However, the LEA shall still be considered to be in compliance with 707 KAR 1:300, Section 4 and 707 KAR 1:310 if it declines to pursue the evaluation. 707 KAR 1:340, Section 5(2) If the parent denies or revokes consent for an initial evaluation, the ARC chairperson/district representative will document the parent’s decision in the meeting summary. The ARC chairperson/district representative contacts the executive director of ECE with a request for consultation regarding the refusal. In consultation with school personnel, the executive director of ECE will determine if mediation or a due-process hearing will be requested to obtain consent for the proposed action. If the executive director of ECE does not pursue mediation or a due-process hearing, the district is still in compliance with Child Find regulations. If the parent of a child refuses to give consent for the provision of initial specially designed instruction and related services or fails to respond to request for consent, the LEA shall not provide such services and shall not use a due process hearing or mediation procedures in order to obtain agreement or a ruling that the services may be provided to the child. 707 KAR 1:340, Section 5(5)


The LEA shall not be considered to be in violation of the requirements to make a free appropriate public education available to the child if the LEA decides not to pursue the consent through due process procedures set out in Section 9 and 11 of this administrative regulation and the LEA shall not be required to convene an ARC meeting or develop an IEP§ if the parent of the child: (a) Fails to respond or refuses to consent to a request for evaluation; (b) Fails to respond or refuses to consent to a request for services; or (c) Refuses to consent to a reevaluation. 707 KAR 1:340, Section 5(9) If consent is denied or revoked for the initial provision of special education and related services, the ARC chairperson/district representative documents the denial of consent. No further action is pursued by the district. The child or youth remains in the regular education environment, and the district is not in violation of requirements to provide FAPE. If the parent revokes consent, that revocation is not retroactive. The withdrawal of consent does not negate an action that occurred after consent was first given and before it was withdrawn. SECTION VI REPRESENTATION OF CHILDREN AND YOUTH The ARC chairperson/district representative makes sure that each child or youth is represented by a parent at all decision-making points in the process of identification, evaluation, placement, and the provision of FAPE. The ARC chairperson/district representative verifies the location, legal status, and availability of parents/guardians prior to taking any action with regard to identification, evaluation, placement, or the provision of FAPE. “Parent” means: (a) A biological or adoptive parent of a child; (b) A guardian generally authorized to act as the child’s parent, or authorized to make educational decisions for the

child, but not the state if the child is a ward of the state; (c) A person acting in the place of a biological or adoptive parent such as a grandparent or stepparent or other relative

with whom the child lives, or a person who is legally responsible for the child’s welfare; (d) A foster parent if the biological or adoptive parents’ authority to make educational decisions on the child’s behalf

has been extinguished and the foster parent has an ongoing, long-term parental relationship with the child, is willing to make the education decisions required of parents under 707 KAR Chapter 1, and has no interest that would conflict with the interests of the child;

(e) A foster parent if the biological or adoptive parent grants authority in writing for the foster parent to make educational decisions on the child’s behalf, and the foster parent is willing to make educational decisions required of parents under 707 KAR Chapter 1, and has no interest that would conflict with the interests of the child; or

(f) A surrogate parent who has been appointed in accordance with 707 KAR 1:340, Section 6. 707 KAR 1:002, Section 1(43) Determination of Representation No later than at the time of referral, the ARC chairperson/district representative, through a review of

§ Individual Education Program (IEP)


the records of the child or youth, determines if he or she is:

A. To be represented by an adult, such as a parent/guardian, a person acting as a parent, a surrogate parent, or a long-term foster parent; or

B. Emancipated and, therefore, represents himself or herself in educational decision making. If the ARC chairperson/district representative determines that a child or youth is to be represented by someone other than a biological or an adoptive parent, the ARC chairperson/district representative documents the findings on the appropriate district form. Copies of the form and appropriate verifying documents are filed in the child’s or youth’s education record and are sent to the coordinator of ECE Placement. Biological or Adoptive Parents The biological or adoptive parent, when attempting to act as the parent and when more than one (1) party meets the definition of parent under 707 KAR 1:002(43), shall be presumed to be the parent for purposes of 707 KAR Chapter 1 unless the biological or adoptive parent does not have the legal authority to make educational decisions for the child. If there is a judicial order that identifies a specific person or persons who meets the definition of "parent" in Section 1(43)(a) through (d) of 707 KAR 1:002 to act as the parent of a child or to make educational decisions on behalf of a child, the order shall prevail. 707 KAR 1:340.Section 6(2) Either parent, the mother or the father, whether he or she is biological or adoptive, has parental rights unless there has been a judicial determination that limits or terminates his or her rights. Parents are considered available when a current residence or mailing address is identified by the ARC chairperson/district representative. If the child or youth is not residing with either parent, then the ARC chairperson/district representative obtains the name and address of either of the parents and any documents that affect the parent’s legal status regarding educational decision making. These procedures are followed whether or not the current custodial arrangement is an informal agreement between the parent and the custodian or is a result of a state agency or court action. Legal Guardian If the ARC chairperson/district representative determines that the child or youth is represented by a legal guardian, the ARC chairperson/district representative obtains from the guardian a copy of the court order that establishes the legal guardianship. The ARC chairperson/district representative places a copy of the court order in the education record of the child or youth. If there is no parent available and the person caring for the child or youth is doing so as the result of a state agency or court action, rather than through an informal arrangement that was voluntarily agreed to by the parent, the ARC chairperson/district representative requires this person to provide information regarding the legal status of the rights of the parent with respect to the child or youth. This person does not qualify as the educational representative unless he or she is a private individual who can produce a court order that he or she has been granted private guardianship of the child or youth (as opposed to state appointed guardianship). Without such private guardianship, he or she may not represent the child or youth (e.g., sign permission or other due-process forms), and without


written parental permission, he or she is not allowed access to the education records of the child or youth. Person Acting as a Parent If the ARC chairperson/district representative determines that there is no parent available and the person with whom the child or youth resides is a family member, friend, or other person with whom the parent has made an informal arrangement to care for the child or youth without state agency or court intervention, the ARC chairperson/district representative determines that this is a person acting as a parent and, as such, has all of the rights of a parent until the parent returns to reclaim his or her rights. A person acting as a parent is a relative of the child or youth or is a private individual whom the parents/guardians allow to act as the parent. For example, a grandparent, neighbor, governess, friend, or private individual who cares for the child or youth with the explicit or tacit approval of the parent/guardian would qualify as a person acting as a parent. A person acting as a parent is documented on the appropriate district form. Commitment to Commonwealth of Kentucky Cabinet for Families and Children or Kentucky Department of Juvenile Justice If the child or youth has been committed to the Commonwealth of Kentucky Cabinet for Families and Children (CFC) or the Kentucky Department of Juvenile Justice (DJJ) and parental rights have not been terminated, then the ARC chairperson/district representative involves the parent in education decision making and no surrogate parent is assigned. If the ARC chairperson/district representative determines that the parental rights have been terminated by the court, then he or she obtains a copy of the court order verifying that the child or youth is a ward of the state. The ARC chairperson/district representative includes the copy of the court order in the education record of the child or youth. The coordinator of ECE Placement appoints a surrogate parent in accordance with the procedures in this section. On rare occasions, and in instances that involve protection of the child or youth, the CFC may state that parents must not learn information regarding the whereabouts of their child or youth. In such cases, the CFC should present to the district a court order that prohibits parent involvement with the child or youth. A copy of the order is obtained by the district and placed in the child’s or youth’s records, and the coordinator of ECE Placement appoints a surrogate in accordance with the procedures in this section. If no parent is known, if his or her whereabouts cannot be determined, or if parental rights have been terminated, the ARC chairperson/district representative must determine if someone is acting as a parent. If it is determined that someone is acting as the parent, then that person is involved in educational decision making.


Foster Parent The ARC chairperson/district representative verifies whether the child or youth resides in a foster home or is otherwise in the custody of a state agency. If the child or youth is placed with foster parents, the ARC chairperson/district representative determines whether parental rights have been terminated, and the procedures in the subsection above are followed. If no parent is known, if his or her whereabouts cannot be determined, or if parental rights have been terminated, the coordinator of ECE Placement may assign the foster parent as a surrogate parent in accordance with the procedures in this section. When parental rights have not been terminated and when the parent has given the foster parent permission in writing to make educational decisions for the child, the foster parent can act as the educational representative under the following conditions:

A. The foster parent is willing to make the educational decisions required of parents under special education regulations; and

B. The foster parent has no interest that would conflict with the interests of the child or youth.

In the event that parental rights have been terminated, the foster parent may act as the parent without the need for appointment as surrogate parent under the following conditions:

A. The foster parent has an ongoing, long-term parental relationship with the child or youth; B. The foster parent is willing to make the educational decisions required of parents under

special education regulations; and C. The foster parent has no interest that would conflict with the interests of the child or

youth. Emancipation When a child with a disability reaches the age of majority, all rights under 707 KAR Chapter 1 shall transfer from the parents to the child, unless the child has been declared incompetent under KRS Chapter 387 in a court of law. An LEA shall notify the child with a disability and the parents of the transfer of the rights. 707 KAR 1:340, Section 6(11) Unless the parent so notifies the school, district personnel assume that the youth at age eighteen (18) is emancipated and is able to make informed decisions. At least one (1) year prior to the child reaching the age of majority, the IEP shall include a statement that the child has been informed of the child’s rights under 707 KAR Chapter 1, and that the rights will transfer to the child upon reaching the age of majority. 707 KAR 1:320, Section 5(14) Beginning with the ARC meeting when the youth is age seventeen (17), the IEP includes a statement that the youth with a disability has been informed of the transfer of rights at age eighteen (18). At least one year before a youth’s eighteenth (18th) birthday, as identified through the child tracking


system, the executive director of ECE/designee provides written notice to the parent that the rights previously held by the parent will transfer to the youth at the age of eighteen (18) unless the parent provides the district with evidence that there is a court order or legal document showing the parent as the guardian or representative of the youth in educational matters. A youth who is, or has been, married is also considered emancipated. Surrogate Parent The LEA shall ensure the rights of a child are protected by appointing a surrogate parent to make educational decisions for the child if: (a) No individual can be identified as a parent as defined in 707 KAR 1:002; (b) An LEA, after reasonable efforts, cannot discover the whereabouts of the parents; (c) The child is a ward of the state; or (d) The child is unaccompanied homeless youth as defined in the McKinney-Vento Homeless Assistance Act, 42 U.S.C.

11431. 707 KAR 1:340, Section 6(3) The LEA shall keep a record of the reasonable efforts it made to discover the whereabouts of the parents, such as: (a) Detailed records of the 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. 707 KAR 1:340, Section 6(4) An LEA shall have a procedure for determining whether a child needs a surrogate parent and assigning a surrogate parent to the child. The surrogate parent of the child shall have all the rights afforded parents under Part B of IDEA, 34 C.F.R. Part 300, and 707 KAR Chapter 1, to make decisions about educational issues for a child. 707 KAR 1:340, Section 6(5) The district recruits individuals who are willing serve as volunteer surrogate parents. Payment of a foster parent by CFC for providing care to a child or youth does not make the foster parent an employee of the CFC for the purpose of determining eligibility status as a surrogate parent. The fact that a person receives payment for being a foster parent does not disqualify him or her from being appointed as a surrogate under the non-employee requirement. The surrogate parent may represent the child in all matters relating to the identification, evaluation, and educational placement of the child and the provision of FAPE to the Child. 707 KAR 1:340, Section 6(10) The surrogate, as the educational representative of the child or youth, exercises all of the educational rights, responsibilities, and authorities as a parent of the child or youth, such as the rights to:

A. Receive prior written notice of proposed or refused actions; B. Provide or deny consent; C. Participate in ARC meetings; in the development, review, and revision of IEPs; and in the

development of placement recommendations; D. Protection under confidentiality; E. Request an independent educational evaluation of the child or youth; and F. Request an impartial due-process hearing and appeal.

An individual may serve as a surrogate until:


A. The return of the parents; B. The youth reaches the age of majority C. The emancipation of the youth; or D. The surrogate no longer meets the qualifications and criteria for assignment described in

this section. Selection of Surrogate Parent Volunteers An LEA shall have a procedure for selecting surrogates. A surrogate: (a) Shall not be an employee of the Kentucky Department of Education, the LEA, or any other agency that is involved

in the education or care of the child; (b) Shall not have any personal or professional interest that conflicts with the interests of the child; and (c) Shall have knowledge and skills that ensure adequate representation of the child. 707 KAR 1:340, Section 6(6) In the case of a child who is an unaccompanied homeless youth, appropriate staff of emergency shelters, transitional shelters, independent living programs, and street outreach programs may be appointed as temporary surrogate parents without regard to the criteria listed in until a surrogate parent can be appointed that meets all the requirements of this section. 707 KAR 1:430, Section 6(8) The district procedures for the selection and assignment of surrogate parents include:

A. A method for determining whether a child or youth needs a surrogate parent; and B. A method for selecting and assigning a surrogate parent.

Any individual who indicates an interest in volunteering to be a surrogate parent is asked to complete an application form and to follow district procedures for volunteers (e.g., record checks). Upon receipt of an application, the coordinator of ECE Placement reviews the completed application to ensure that the potential surrogate meets all eligibility requirements. The coordinator of ECE Placement maintains a file of all eligible surrogate-parent applications. This file includes the names, addresses, telephone numbers, and training status of the individuals who have agreed to serve as surrogate parents. Assignment of a Surrogate An LEA shall make reasonable efforts to ensure the assignment of a surrogate not more than thirty (30) days after there is a determination by the LEA that the child needs a surrogate.. 707 KAR 1:340, Section 6(9) The coordinator of ECE Placement sends a letter that explains the rights and responsibilities to the surrogate. The letter contains a statement of commitment and acceptance, which the appointed surrogate signs and returns to the coordinator of ECE Placement. The explanation of the rights and responsibilities stipulates that the surrogate will:

A. Become acquainted with the child or youth and his or her educational needs; B. Be accessible to the child or youth and school personnel as needed; C. Represent the educational interests of the child or youth to the best of his or her ability; D. Have no other vested interest that would conflict with fulfilling the responsibilities to the

child or youth; and E. Keep confidential the information in the education records of the child or youth.


Training Surrogate Parents The coordinator of ECE Placement/designee provides information and training to persons selected as surrogate parents to ensure that they have sufficient knowledge and skills to effectively represent the child or youth. Such information and training include:

A. The role of the surrogate parent; B. The rights and responsibilities of parents of children and youth with disabilities; C. Available resources for additional information and assistance; D. The nature and severity of disabilities; E. Special education programs and services; F. Procedures to follow to be excused from appointment when there is a potential conflict of

interest; G. Conditions for termination as a surrogate; and H. Notification that the surrogate has the right to represent the child or youth in all matters

related to the educational rights of the child or youth. Termination of a Surrogate Parent Assignment The coordinator of ECE Placement/designee notifies the surrogate in writing of termination:

A. Because the parent becomes known or is located; B. Upon emancipation of the youth; C. Because the surrogate no longer meets the qualifications and criteria for assignment

described in this section; or D. Because the surrogate is not fulfilling his or her responsibilities.

If the coordinator of ECE Placement/designee determines that the surrogate is no longer needed due to any of the reasons listed above, the coordinator sends the surrogate written notice informing him or her of the termination and indicating the reasons for termination. A copy of the letter is maintained in the office of the coordinator of ECE Placement. The coordinator of ECE Placement/designee determines if the child or youth continues to require a surrogate according to procedures in this section. If the child or youth continues to need surrogate representation, the coordinator follows the procedures in this section. If it is necessary for a surrogate to resign for personal reasons (e.g., moved, is ill, has other commitments), the coordinator of ECE Placement/designee maintains written documentation of the resignation and sends a written acknowledgment to the surrogate parent. The coordinator of ECE Placement/designee determines the need for and assigns a new surrogate according to the procedures in this section. Written documentation regarding any disagreement about the choice of a surrogate parent is maintained in the office of the coordinator of ECE Placement.


SECTION XII STATE COMPLAINT PROCEDURES Included in the procedural safeguards notice is information on the right to file a complaint with the Kentucky Department of Education (KDE), the procedures for filing, the required information for filing, and the timelines for resolution. Right to File a Complaint Any organization or individual including someone from outside the state may file a signed written complaint under this administrative regulation. 707 KAR 1:340 Section 7 (2) The complaint shall include: (a) A statement that the LEA or other public agency providing educational services to identified students has violated a requirement

of 707 Chapter 1 or IDEA** administrative regulations; (b) The facts on which the statement is based; (c) A signature and contact information for the complainant; (d) Name and residence of the child, or contact information, if the child is homeless under the McKinney-Vento Homeless

Assistance Act, 42 U.S.C. Section 11431; (e) Name of the school the child is attending; (f) A description of the nature of the problem, including facts related to the problem; (g) A proposed resolution of the problem to the extent it is known and available to the complainant at the time of the filing; and (h) Information indicating that the violation did not occur more than one (1) year prior to the date of the receipt of the complaint. The party filing the complaint shall forward a copy to the LEA.

707 KAR 1:340 Section 7 (3-4) Parents, individuals, and organizations — from inside or outside the state — have the right to submit to KDE a signed, written complaint alleging violations of state and federal requirements of the Individuals with Disabilities Education Act (IDEA). Procedures for Addressing the Complaint The following procedures shall apply to the Kentucky Department of Education as to written complaints submitted pursuant to the 34 CFR 300.151 through 300.153; (a) The Kentucky Department of Education shall have sixty (60) days after a complaint is filed to carry out an independent

investigation, if necessary; (b) The complainant and the LEA shall each have an opportunity to submit additional information about any allegation in the

complaint; (c) The LEA shall have an opportunity to respond to the complaint including, at least: 1. A proposal to resolve the complaint; and 2. An opportunity for the parent who has filed the complaint and the LEA to voluntarily engage in mediation; (d) The department shall review all relevant information; and (e) The department shall issue a written decision addressing each allegation in the complaint and containing the findings of fact and

conclusions and the reasons for the final decision. 707 KAR 1:340 Section 7 (1)

The Kentucky Department of Education shall allow an extension of the time limit under subsection (1)(a) of this section only if exceptional circumstances exist or if the parent and the LEA agree to extend the time line to engage in mediation or other alternative means of dispute resolution.. 707 KAR 1:340 Section 7 (6) The district may investigate a complaint and submit the investigation and results to KDE. KDE must review the findings to determine their sufficiency.

** Individuals with Disabilities Education Act (IDEA)


The executive director of ECE receives from KDE staff a written notice of any filed complaint. The executive director of ECE decides if the district will conduct its own investigation or make all relevant documents, including the due-process folder, available to the KDE Division of Exceptional Children Services (KDE/DECS) for its investigation. If the district conducts its own investigation, the executive director of ECE reviews all information and consults with appropriate staff to prepare a report to be submitted to KDE/DECS staff. Right to Appeal a Written Decision From KDE/DECS The complainant, parent or the LEA shall have a right to appeal the written decision from a complaint to the Commissioner of the Kentucky Department of Education. The appeal shall be filed within fifteen (15) business days of the receipt of the decision. 707 KAR 1:340, Section 7(5) Implementation of Final Decision The Kentucky Department of Education shall ensure the final decision from a complaint shall be effectively implemented. To achieve compliance, the Department of Education may apply: (a) Technical assistance activities; (b) Negotiations; or (c) Corrective actions. 707 KAR 1:340, Section 7(7) SECTION VIII MEDIATION PROCEDURES Information regarding mediation is included in the procedural safeguards notice provided by the district. Right to Mediation An LEA and parent of a child with a disability shall have the right to request mediation from the Kentucky Department of Education to resolve any disputes that may arise under 707 KAR Chapter 1. 707 KAR 1:340, Section 8(1) The Kentucky Department of Education shall maintain a list of qualified mediators who shall: (a) Not be an employee of the Kentucky Department of Education or the LEA that is involved in the education or care

of the child; (b) Be chosen at random for the mediation process; and (c) Not have a personal or professional conflict of interest. 707 KAR 1:340 Section 9 (2) The Kentucky Department of Education shall bear the cost of the mediation process.

707 KAR 1:340 Section 9 (3)

The sessions in the mediation process shall be: (a) Scheduled in a timely manner not to exceed sixty (60) days; and (b) Held at a location that is convenient to both parties to the dispute.

707 KAR 1:340 Section 9 (4)

In a mediation session in which a resolution is reached by the parties, a legally-binding written agreement shall be executed that: (a) Sets forth the resolution and timeline in which it shall be implemented;


(b) States that all discussions that occurred in the mediation process shall be confidential; and (c) May not be used as evidence in any subsequent due process hearing or civil proceeding.

707 KAR 1:340 Section 9 (5)

Both the parent and a representative of the LEA who has the authority to bind the LEA shall sign the agreement. The agreement shall be enforceable in any state court of competent jurisdiction or in a district court of the United States.

707 KAR 1:340 Section 9 (6)

Mediation may address issues surrounding the education of the child, including ongoing alleged violations of IDEA, compensatory education, or any other issue related to the child’s enrollment in the school district.

707 KAR 1:340 Section 9 (7)

Requirements of Mediation The mediation process, if chosen, shall: (a) Be voluntary; (b) Not be used to deny or delay a parent’s right to a due process hearing under Sections 8 and 11 of this administrative

regulation or 34 CFR Section 300.507, or to deny any other rights afforded under this administrative regulation or IDEA Subpart E; and

(c) Be conducted by a qualified and impartial mediator trained in effective mediation techniques. 707 KAR 1:340 Section 9(1)

The district may offer mediation to the parent as an option to settle differences concerning identification, evaluation, placement, or the provision of FAPE. Mediation is not required, but its availability must be explained to the parents by the district anytime a due-process hearing is requested. The executive director of ECE and the parent must jointly submit a written request to KDE for mediation. A document explaining the guidelines for mediation is available from the district or KDE/DECS. Dispute Resolution Within fifteen (15) days of receiving notice of parental request for a due process hearing, the LEA shall convene a meeting with the parent and the relevant member or members of the ARC who have specific knowledge of the facts identified in the due process hearing request. The parent and the LEA shall determine the relevant ARC members to attend the resolution session. A representative of the LEA who has decision-making authority on behalf of the LEA shall also attend this meeting. An attorney for the LEA shall not attend the meeting unless an attorney accompanies the parent.

707 KAR 1:340 Section 10 (1) Within fifteen (15) days of receiving notice of a parent request for a due-process hearing, the executive director of ECE/designee contacts the Jefferson County Board of Education (JCBE) attorney to schedule a meeting with the parent. The executive director of ECE/designee and the parent determine the district personnel who have knowledge about the facts as identified in the due-process hearing request. The executive director of ECE/designee arranges for the appropriate district personnel to attend the meeting. The JCPE attorney does not attend the meeting unless the parent is requesting the attendance of his or her attorney. The purpose of the meetings is: (a) To allow the parents to discuss their due process hearing request; (b) To discuss the facts that formed the basis of the request; and (c) To give the LEA an opportunity to resolve the complaint. 707 KAR 1:340 Section 10 (2)


This meeting shall not take place if the parents and the LEA agree in writing to waive the meeting or agree to use the mediation process.

707 KAR 1:340 Section 10 (3) A Resolution to the Dispute If the parties reach a resolution to the dispute, the parties shall execute a legally-binding agreement that is: (a) Signed by both the parent and a representative of the LEA who has the authority to bind the LEA; and (b) Is enforceable in any state court of competent jurisdiction or a district court of the United States.

707 KAR 1:340 Section 10 (4) The executive director of ECE/designee places a copy of the resolution of a dispute in the student’s special education record. The dispute resolution agreement may be voided by either party within three (3) business days of the agreement’s execution. 707 KAR 1:340 Section 10 (5) If the LEA has not resolved the complaint to the satisfaction of the parents within thirty (30) days of the receipt of the due process hearing request, the due process hearing may occur. 707 KAR 1:340 Section 10 (6) The timeline for issuing a final decision pursuant to 34 CFR 300.515 shall begin at the expiration of the thirty (30) day timeline referred to in subsection (6) of this section, except for adjustments allowed in subsections (11) and (12) of this section. 707 KAR 1:340 Section 10 (7) Failure to Hold a Meeting The failure of the parent who filed the due process hearing request to participate in the resolution meeting shall delay the timelines for the resolution process and the due process hearing until the meeting is held unless the parties have jointly agreed to waive the resolution process or use mediation. If the LEA is unable to obtain the participation of the parent in the resolution meeting after reasonable efforts have been made and documented, the LEA may request, at the conclusion of the thirty (30) day period, that a hearing officer dismiss the parent’s due process hearing request.

707 KAR 1:340 Section 10 (8-9) If the parent refused to participate in the resolution process, the timelines for the resolution process and hearing are delayed. If the district cannot obtain the participation of the parent in the resolution process, the JCBE attorney notifies the due-process hearing officer of the parent’s failure to participate. The LEA shall keep a record of the reasonable efforts make to obtain the participation of the parents in the resolution meeting 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.

707 KAR 1:340 Section 10 (10)


District personnel keep detailed records, including the date of the attempted contact and the name of the person attempting the contact. The records, copies of any correspondence sent to the parent, and any response received are filed in the student’s special education record. If the LEA fails to hold the resolution meeting within fifteen (15) days of receiving the notice of a parent’s due process hearing request or fails to participate in the resolution meeting, the parent may seek the intervention of a hearing officer to begin the forty-five (45) day due process hearing timeline in 34 CFR 300.515.

707 KAR 1:340 Section 10 (11) Timeline of the Due-Process Hearing The forty-five (45) day timeline for the due process hearing in 34 CFR 300.515 starts the day after one (1) of the following events: (a) Both parties agree in writing to waive the resolution meeting; (b) After either the mediation or resolution meeting starts but before the end of the thirty (30) day period, the parties

agree in writing that no agreement is possible; or (c) If both parties agree in writing to continue the mediation at the end of the thirty (30) day resolution period, but later

that parent or the LEA withdraws from the mediation process. 707 KAR 1:340 Section 10 (12)

SECTION IX DUE-PROCESS HEARING PROCEDURES Information regarding due-process hearings is included in the procedural safeguards notice provided by the district. If a parent unilaterally places his or her child or youth in a private school, then the parent’s hearing rights are limited to Child Find, evaluation, and reevaluation issues. See Chapter 10, “Children With Disabilities Enrolled in Private Schools.” A parent or an LEA may initiate a due process hearing on any of the matters described in the written notice relating to identification, evaluation, or educational placement of a child with a disability or the provision of FAPE to the child or the refusal to initiate or change the identification, evaluation or educational placement of the child. When a hearing is initiated, the LEA shall inform the parent of the availability of mediation to resolve the dispute. The LEA shall inform the parent of any free or low-cost legal and other relevant services available in the area if the parent requests the information or if a parent or LEA initiates a hearing. 707 KAR 1:340, Section 8(2-4) The ARC chairperson/district representative obtains a listing of free and low-cost legal services from the executive director of ECE who is responsible for providing a current list. Hearing Requests The parent of a child with a disability or the attorney representing the child, or the LEA that files a request for a hearing shall provide notice to the Kentucky Department of Education, to request a hearing. The notice shall contain: (a) The name of the child; (b) The address of the residence of the child; (c) The name of the school the child is attending; (d) A description of the nature of the problem; and (e) Facts relating to the problem and a proposed resolution to the extent known and available to the parents at the time.

707 KAR 1:340 Section 11 (1)


The Kentucky Department of Education shall provide a model form, entitled “Request for a Due Process Hearing”, that meets these requirements to assist parents in filing a request for a due process hearing.

707 KAR 1:340 Section 11 (2) A party shall not have a due process hearing until the party, or the attorney representing the party, files a notice that contains the information listed in subsection (1) of this section. This notice shall be provided to the other party and to the Kentucky Department of Education. 707 KAR 1:340 Section 11 (3) The party that requests the hearing (the parent, the parent’s authorized agent, or the district) submits the Request for a Due-Process Hearing Form to the:

Director of Division of Exceptional Children Services, Kentucky Department of Education Capital Plaza Tower 500 Mero Street Frankfort, KY 40601

If the district requests the due-process hearing, the superintendent and executive director of ECE submits the hearing request. The hearing request states:

A. The name of the child; B. The address of the residence of the child; C. The name of the school the child is attending; D. A description of the nature of the problem; and E. Facts relating to the problems to the extent known and available to the parents at

the time, and a proposed resolution. If, after the district requests a due-process hearing, district personnel and the parent come to an agreement on the issue(s) presented in the hearing request, the party requesting the hearing submits to the hearing officer and KDE a letter requesting cancellation of the hearing request. The procedures included in KRS Chapter 13B and IDEA Subpart E shall apply to a due process hearing.

707 KAR 1:340 Section 11 (4) Appeal of Decision A party to a due process hearing that is aggrieved by the hearing decision may appeal the decision to members of the Exceptional Children Appeals Board as assigned by the Kentucky Department of Education. The appeal shall be perfected by sending, by certified mail, to the Kentucky Department of Education, a request for appeal, within thirty (30) calendar days of date of the hearing officer’s decision. A decision made by the Exceptional Children Appeals Board shall be final unless a party appeals the decision to state circuit court or federal district court. 707 KAR 1:340, Section 12(1-2)


Student Status During Pendency of Judicial Proceedings Except as provided in Sections 14 and 15 of this administrative regulation, during the pendency of any administrative or judicial proceeding, including the dispute resolution meeting the child involved in the hearing or appeal shall remain in the child’s current educational placement, unless the LEA and the parent agree to another placement. However, the child shall not be required to remain in the child’s current educational placement if the complaint involves an application for initial services for a child who is transitioning from the early intervention program into preschool and the child is no longer eligible for the early intervention program due to age. In that case, the LEA shall not be required to provide the early intervention services the child had been receiving but would be required to provide any special education and related services that the child is eligible for and that are not in dispute between the parent and the LEA. If the hearing involves an application for initial admission to public school, and if there is consent of the parents, the child shall be placed in the public school until the proceedings are final. 707 KAR 1:340, Section 12(3-4) If the decision of a hearing officer in a due process hearing conducted by the SEA†† or a State review official in an administrative appeal agrees with the child’s parents that a change of placement is appropriate, that placement must be treated as an agreement between the State or local agency and the parents for purposes of paragraph (a) of this section. 34 CFR Part 300 §300.514(c) During the pendency of any administrative proceedings (e.g., due-process hearings, appeals to the Exceptional Children Appeals Board) or judicial proceedings (i.e., civil action brought under IDEA), the district ensures that the child remains in his or her current educational placement, unless the district and the parent agree otherwise. In the case of a weapon offense, drug offense, or incident involving a threat to the safety of self or others, the student remains in the alternative placement until the discipline procedures are completed in accordance with procedures in Chapter 8, “Discipline Procedures.” If the complaint involves a child who is transitioning from the early intervention program into preschool for initial services, the district provides any services that the ARC agreed upon prior to the due-process hearing request. If the administrative or judicial proceedings involve an application for initial admission to public school, the district assigns the child in an age- and grade-appropriate placement, with the consent of the parent, until the completion of the proceedings.

†† state educational agency (SEA) which means the Kentucky Department of Education (KDE).

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CHAPTER 8 DISCIPLINE PROCEDURES 707 KAR 1:340, Sections 13-17

SECTION I DISCIPLINE PROCEDURES The Jefferson County Public Schools (JCPS) superintendent, executive director of Exceptional Child Education (ECE), and building principals make sure that appropriate procedures are followed in the discipline, suspension, and expulsion of children and youth with disabilities. As outlined in the procedures below, before suspending a child or youth for more than five (5) cumulative days in the school year, an Admissions and Release Committee (ARC) meeting is required for children and youth who:

A. Have a disability and are receiving special education and related services; or B. Are in the process of being identified, located, evaluated, and possibly placed.

Student Behavior An ARC* shall, in the case of a child whose behavior impedes his or her learning or that of others, consider, if appropriate, strategies, including positive interventions, strategies, and supports to address that behavior. 707 KAR 1:320, Section 5(2)(a) Expectations for student behavior and consequences for misbehavior/policy violations are the same for all students and are detailed in the JCPS Code of Acceptable Behavior and Discipline and the Student Bill of Rights. Consequences that are applied for all students may be applied for a student with a disability, as long as the consequence does not conflict with the provisions of the Individual Education Program (IEP) or a Behavior Intervention Plan (BIP). The child or youth must continue to receive the services in the IEP, to have the opportunity to progress in the regular education curriculum, and to participate with nondisabled students to the greatest extent possible. The ARC may modify or adapt the consequences applied for all students to meet the needs of a child or youth with a disability as documented in the IEP or BIP. Special education includes instruction on appropriate behavior. When the ARC determines that behavioral interventions that are implemented with nondisabled students would be unsuccessful, the ARC should designate appropriate strategies and positive behavioral interventions and supports in the child’s or youth’s IEP. School personnel may consider any unique circumstances on a case-by-case basis when determining whether a change in placement for a child with a disability who violates a code of student conduct is appropriate.

KAR 1:340, Section 13(1) School personnel may remove a child with a disability who violates a code of student conduct from his or her current placement to an appropriate interim alternative educational setting, another setting, or suspension, for not more than 10 consecutive school days (to the extent such alternatives are applied to children without disabilities).

KAR 1:340, Section 13(2) Suspension of primary school students shall be considered only in exceptional cases where there are safety issues for the child or others. KRS 158.150(8) Suspensions for Five Days or Less in a School Year The due-process procedures for short-term suspension are the same for all students and are outlined in the JCPS Code of * Admissions and Release Committee (ARC)

2 8: Discipline

Acceptable Behavior and Discipline and the Student Bill of Rights. When suspensions are five (5) days or less in length, do not exceed six (6) cumulative days in a school year and are used as temporary disciplinary measures, then an ARC meeting is not required. Notice Prior to a Disciplinary ARC Meeting An LEA† shall provide written notice to the parents of a child with a disability at least twenty-four (24) hours before a meeting concerning a safety issue or a change in placement due to a violation of a code of student conduct. 707 KAR 1:340, Section 3(2) Suspensions of More Than Five Cumulative Days in a School Year On the date which a decision is made to make a removal that constitutes a change of placement of a child with a disability because of a violation of the code of student conduct, the LEA shall notify the parents of the decision and provide the parents with a copy of the procedural safeguards in accordance with Section 4.

707 KAR 1:340, Section 14 (6) On the date on which a decision is made to make a removal that constitutes a change of placement of a child with a disability because of a violation of the code of student conduct, the LEA shall notify the parents of the decision and provide the parents with a copy of the procedural safeguards in accordance with Section 4. An ARC is required for all suspensions of more than five (5) cumulative days in a given school year. The ARC is convened within ten (10) school days of the date on which the decision is made regarding the contemplated suspension. The child or youth is not suspended until the ARC convenes and completes the procedures as outlined in this section under “Functional Behavior Assessment” and “Manifestation Determination” of this chapter. A child or youth who is suspended for more than ten (10) school days in a school year must receive educational services. An LEA shall be required to provide educational services to a child with a disability during periods of removal of ten (10) or less school days in the same school year if it provides services to children without disabilities who are similarly removed. 707 KAR 1:340, Section 4(8) The district need not provide educational services during periods of removal for disciplinary reasons to a child or youth with a disability who has been removed from his or her current placement ten (10) school days or less in the school year if services are not provided to a student without disabilities who has been similarly removed. Functional Behavior Assessment and Behavior Intervention Plan When the ARC chairperson/district representative convenes an ARC meeting to consider the suspension of a child or youth for more than five (5) cumulative days in a school year, the ARC:

A. Develops a plan for conducting a Functional Behavior Assessment (FBA) if an assessment has not been conducted;

B. Develops and implements a BIP if an FBA has already been conducted; or C. Reviews and modifies the FBA and the BIP, as necessary, to address the behavior if an FBA has

been conducted and a BIP has been developed.

† local educational agency (LEA), which means the Jefferson County Public School (JCPS) District

8: Discipline 3

As soon as practicable — after developing the FBA described above and completing the assessments required by the FBA — the district convenes an ARC meeting to develop appropriate behavioral interventions to address the behavior (i.e., BIP) and implements those interventions. Manifestation Determination Within ten (10) school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct, the relevant members of the child’s ARC, as determined by the LEA and the parent, shall convene a meeting to review all relevant information in the student’s file, including the child’s IEP‡, and teacher observations, teacher-collected data, and any relevant information provided by the parents to determine: (a) If the conduct in question was caused by, or had a direct and substantial relationship to the child’s disability; or (b) If the conduct in question was the direct result of the LEA’s failure to implement the IEP. 707 KAR 1:340, Section 14(1) When the ARC convenes to review a suspension of more than five (5) cumulative days in a school year, the ARC chairperson/district representative invites relevant members of the youth’s ARC to attend the meeting. The ARC:

A. Considers all relevant information, including the FBA, the BIP, and any evaluation information that describes the specific behavior(s);

B. Discusses steps taken by the school to address the problem behavior; and C. Reviews the IEP and placement in relation to the behavior in question to determine:

1. If the conduct in question was caused by or had a direct and substantial relationship to the child’s disability; or

2. If the behavior in question was the direct result of the district’s failure to implement the IEP.

If the ARC determines that the condition described in subsection (1)(b) of this section was met [the conduct in question was a direct result of a failure to implement the IEP], the LEA shall take immediate steps to remedy those deficiencies. 707 KAR 1:340, Section 14(3) Behavior Is Not a Manifestation of the Disability If the behavior that gave rise to the violation of the school code is determined not to be a manifestation of the child’s disability (as described in Section 14 of this administrative regulation), school personnel may apply the relevant disciplinary procedures to children with disabilities in the same manner and for the same duration as the procedures would be applied to children without disabilities ….. 707 KAR 1:340, Section 13(4) The ARC will determine that the behavior is not a manifestation of the child’s or youth’s disability if it is determined that the conduct in question was not:

A. Caused by, or had no direct and substantial relationship, to the youth’s disability; or B. The direct result of the district’s failure to implement the IEP.

‡ Individual Education Program (IEP)

4 8: Discipline

If after the manifestation determination review the ARC determines that the behavior is not a manifestation of the child’s or youth’s disability, the relevant disciplinary procedures applicable to all students may be applied to the child or youth with a disability in the same manner in which they are applied to children and youth without disabilities. Beginning on the eleventh (11th) day of suspension within a school year, educational services must be provided. See the subsection titled “Provision of Educational Services” in this section for further information. Behavior Is a Manifestation of the Disability The conduct shall be determined to be a manifestation of the child’s disability if the ARC determines that either of the conditions in subsection (1)(a) or (b) of this section was met. 707 KAR 1:340, Section 14(2) If the ARC determines that the conduct was a manifestation of the child’s disability, the ARC shall: (a) 1. Conduct a functional behavioral assessment, unless the LEA had conducted a functional behavioral assessment before the behavior that resulted in the change of placement occurred and had implemented a behavioral intervention plan for the child; or 2. Review the behavior intervention plan, (if one had already been developed) and modify it, as necessary to address the behavior; and (b) Return the child to the placement from which the child was removed unless the LEA and the parent agree to a change of placement as part of the modification of the behavioral intervention plan or because of the special circumstances explained in subsection (5) of this section. 707 KAR 1:340, Section 14(4) The ARC will determine that the behavior is a manifestation of the child’s or youth’s disability if it is determined that the conduct in question was:

A. Caused by, or had a direct and substantial relationship to, the youth’s disability; or B. The direct result of the district’s failure to implement the IEP.

If after the manifestation-determination review the ARC determines that the behavior is a manifestation of the youth’s disability, the child or youth remains in his or her current placement and is not suspended. If the ARC determines that the condition described in subsection (1)(b) of this section was met [the conduct in question was a direct result of a failure to implement the IEP], the LEA shall take immediate steps to remedy those deficiencies. 707 KAR 1:340, Section 14(3) If the ARC identified any deficiencies in the child’s or youth’s IEP or placement or in the implementation of the IEP or placement, the ARC will take immediate steps to remedy those deficiencies. If the behavior had not been previously addressed in the IEP, the ARC should include the development of strategies, including positive behavioral interventions, strategies and supports to address that behavior (i.e., BIP). The ARC revises the IEP, including the BIP, and placement as appropriate. Provision of Educational Services After a child with a disability has been removed from the child’s current placement for ten (10) school days in the same school year, educational services as directed in subsection 6(a) and (b) of this section shall be provided during any subsequent days of removal. 707 KAR 1:340, Section 13(5)

8: Discipline 5

A child with a disability who is removed from the child’s current placement for more than ten (10) consecutive school days shall: (a) Continue to receive a free, appropriate public education so as to enable the child to continue to participate in the general curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP; and (b) Receive, as appropriate, a functional behavioral assessment, and behavioral intervention services, and modifications, that are designed to address the behavior violation so that it does not recur. 707 KAR 1:340, Section 13(6) The services described in subsection (6) of this section may be provided in an interim alternative educational setting. 707 KAR 1:340, Section 13(7) After a child with a disability has been removed from the child’s current placement for ten (10) school days in the same school year, and the current removal is for not more then ten (10) consecutive school days and is not a change in placement because of disciplinary removals, school personnel, in consultation with at least one (1) of the child’s teachers, shall determine the extent to which educational services explained in subsection (6) of this section are needed. 707 KAR 1:340, Section 13(9) Beginning on the eleventh (11th) day of suspension in the same school year, services must be provided. The ARC chairperson/district representative will consult with the child’s or youth’s special education teacher(s) and determine the services that will meet the criteria as stated above.

Placement in an Alternative Educational School or Program Placement in a district alternative educational school or program may be considered by the ARC as part of the district’s continuum of placement options. For students with serious behavior violations as outlined in the Code of Acceptable Behavior and Discipline and the Student Bill of Rights, an ARC meeting is convened at the child’s school if the child or youth has been suspended more than five (5) cumulative days within the school year. The ARC completes the procedures outlined in this section under “Functional Behavior Assessment and Manifestation Determination.” Behavior Is Not a Manifestation If the ARC determines that the behavior subject to disciplinary action is not a manifestation of the child’s or youth’s disability, then the relevant disciplinary procedures that are applicable to all students may be applied to the child or youth with a disability in the same manner in which they are applied to children and youth without disabilities. The ARC follows the procedures in the JCPS Code of Acceptable Behavior and Discipline and the Student Bill of Rights, including a referral to the JCPS Safe and Drug-Free School Department:

A. For an assessment; and B. For a conference with the assistant director of Student Relations.

The assistant director of Student Relations consults with school personnel regarding the findings from the assessment and/or conference. If appropriate, an ARC meeting is convened with the required members to consider placement options, including an alternative school or program.

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Behavior Is a Manifestation If the ARC determines that the behavior subject to disciplinary action is a manifestation of the child’s or youth’s disability, then the ARC revises the IEP, including the BIP, and revises placement as appropriate in accordance with the procedures in this section. Additionally, the ARC may consider as an intervention a referral to the JCPS Safe and Drug-Free School Department:

A. For an assessment; and B. For a conference with the assistant director of Student Relations.

If a school-based ARC considers an alternative school or program as a placement option, then the assistant director of Student Relations is invited to the ARC meeting, along with appropriate ARC members including staff from the alternative school. Changes in Placement to an Interim Alternative Educational Setting for Violations Involving Weapons, Illegal Drugs, Controlled Substances, and Bodily Injury School personnel may remove a child with a disability to an interim alternative educational setting for not more than forty-five (45) school days without regard to whether the behavior is a manifestation of the child’s disability, if the child: (a) Carries a weapon to or possesses a weapon at school, on school premises, or to or at a school function under the jurisdiction of the Kentucky Department of Education or the LEA; (b) Knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance while at school, on school premises, or at a school function under the jurisdiction of the Kentucky Department of Education or the LEA; or (c) Has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of the Kentucky Department of Education or the LEA. 707 KAR 1:340, Section 14(5) In the event of a determination of violation under this section (weapons, drugs, or serious bodily injury), the ARC chairperson/district representative informs the parents and immediately schedules an ARC meeting, including staff from the interim alternative setting. The parent must receive a twenty-four- (24-) hour written notice of this meeting. The procedures for an FBA and a BIP are followed. (See previous information in this section.) A manifestation determination is conducted. However, a disciplinary change in placement may occur for up to forty-five (45) school days, even if the behavior is determined to be a manifestation of the disability. If the behavior is determined not to be a manifestation of the disability, then the child may be disciplined as a nondisabled child would be disciplined, with the requirement that services must be continued in accordance with the IEP. For disciplinary reasons, the ARC may order a change in placement to an interim alternative educational setting (IAES) for not more than 45 school days, even if the parent is not in agreement with the proposed placement. The ARC selects the IAES. Within forty-five (45) school days, another ARC is convened to consider all placement options, including alternative schools and programs.

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SECTION II APPEALS FROM PLACEMENT DECISION The parent of a child with a disability who disagrees with any decision regarding placement under Section 13 or 14 of this administrative regulation or the manifestation determination, or an LEA that believes that maintaining the current placement of the child is substantially likely to result in injury to the child or to others may request a hearing by filing using the procedures contained in Sections 8 and 11. A hearing officer shall hear and make a determination regarding an appeal requested pursuant to subsection (1) of this section. In making a determination, the hearing officer may order a change in placement of a child with a disability. The hearing officer may: (a) Return the child to the placement from which the child was removed; or (b) Order a change in placement of the child to an appropriate interim alternative educational setting for not more than forty-five (45) school days if the hearing officer determines that maintaining the current placement is substantially likely to result in injury to the child or others. When an appeal has been requested pursuant to this section, the child shall remain in the interim alternative educational setting pending the decision of the hearing officer, or until the expiration of the time provided for in subsection (3)(b) of this section, whichever occurs first, unless the parent and the LEA agree otherwise. An appeal under this section shall: (a) Be conducted in an expedited manner; (b) Shall occur within twenty (20) school days from the date the request is filed; and (c) Shall result in a determination within ten (10) school days after the hearing. 707 KAR 1:340, Section 15(1-5) In instances of extremely serious misconduct in which it appears that maintaining a child or youth in his or her current educational placement is substantially likely to result in serious injury to self or others, the district holds an ARC to review the appropriateness of the present educational program and conducts a manifestation determination to assist the ARC in determining whether the placement for the child or youth needs to be changed. If the parents refuse a change of placement as determined by the ARC, the district may choose to request an expedited due-process hearing. The JCPS superintendent and the executive director of ECE review all documentation, and make the determination to file an expedited due-process hearing request. The same process is followed for this expedited hearing request as is followed for other due-process hearing requests, except that the information prepared specifically addresses the considerations listed above for an expedited hearing and determination of placement in an IAES. A change in placement may occur as ordered by a hearing officer, even if the behavior is determined to be a manifestation of the disability. The procedures for an FBA and a BIP will be followed. (See previous information in this section.)

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SECTION III BASIS OF KNOWLEDGE REGARDING STUDENTS NOT YET ELIGIBLE

A child who has not been identified as having a disability according to the procedures for evaluation and eligibility in this manual and who is facing disciplinary procedures may assert protection under IDEA if the district had knowledge that the child should have been identified as a child with a disability. An LEA shall be deemed to have knowledge that a child is a child with a disability if: (a) The parent of the child has expressed concern in writing (or orally if the parent cannot express it in writing) to

supervisory or administrative personnel of the appropriate LEA or to the teacher of the child, that the child is in need of special education and related services;

(b) The parent of the child has requested an evaluation pursuant to the requirements in 707 KAR 1:300; or (c) The teacher of the child, or other personnel of the LEA, has expressed concern about a pattern of behavior or

performance of the child directly to the director of special education or to other supervisory personnel of the LEA. 707 KAR 1:340 Section 16(1)

The district is deemed to have knowledge that a child is a child with a disability when concerns are expressed in accordance with procedures for Child Find and/or the referral system in Chapter 3, “Child Find, Evaluation, and Reevaluation.” The district has knowledge under one or more of the following circumstances:

A. The parent expressed concern in writing (or orally if the parent cannot express it in writing) to supervisory or administrative staff that the child needs special education and related services.

B. The behavior or performance of the child demonstrates the need for services. C. The parent requested an evaluation. D. The teacher or other school staff expressed concern about the behavior or

performance of the child to the ARC chairperson/district representative or other district supervisory staff.

An LEA shall not be deemed to have knowledge that a child is a child with a disability if, after receiving information that the child may have a disability: (a) The LEA conducted an evaluation and determined the child was not a child with a disability; (b) The LEA determined an evaluation was not necessary and provided notice to the parents of these determinations; or (c) The parents refused to consent to an evaluation or refused initial services. If an LEA does not have knowledge that a child is a child with a disability prior to taking disciplinary measures against the child, the child may be subjected to the same disciplinary measures as measures applied to children without disabilities. 707 KAR 1:340 Section 16(2-3) The district is deemed to not have knowledge that a child is a child with a disability if:

A. The district had conducted an evaluation and the child was found not eligible for special education and related services; or

B. The ARC previously had determined that an evaluation was not necessary according to procedures in Chapter 3, “Child Find, Evaluation, and Reevaluation.”

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If an LEA does not have knowledge that a child is a child with a disability prior to taking disciplinary measures against the child, the child may be subjected to the same disciplinary measures as measures applied to children without disabilities. 707 KAR 1:340 Section 16(3) If the principal/designee determines that the district does not have knowledge that the child has a disability, then the child is subjected to the same disciplinary procedures applied to children who do not have disabilities. Evaluation Request During Disciplinary Proceedings If a request is made for an evaluation of the child during the period in which the child is subjected to disciplinary measures, the evaluation shall be conducted in an expedited manner. Until the evaluation is completed, the child shall remain in the educational placement determined by school authorities, which may include suspension or expulsion without educational services. 707 KAR 1:340, Section 16(4) If a request is made for an evaluation of the child during the period in which the child is subjected to disciplinary measures, the ARC chairperson/district representative schedules an ARC meeting to review the referral and discuss the need for an evaluation. The district conducts the evaluation in an expedited manner. No specific timeline for an expedited evaluation is included in regulations. However, the evaluation should be conducted in a shorter time period than a normal evaluation. Pending the results of the evaluation, the child or youth remains in the setting determined by school authorities. This setting may be the out-of-school suspension or expulsion without educational services, unless educational services are provided to students without disabilities under similar circumstances. The school is not required to put disciplinary proceedings on hold until the evaluation is completed. If the student is determined to be a child or youth with a disability, based on the evaluation and review of information supplied by the parents, the school must then provide special education and related services. SECTION IV REPORTING TO LAW ENFORCEMENT AGENCIES Reporting a Crime Notwithstanding any provisions of 707 KAR Chapter 1 an agency may report a crime committed by a child with a disability to appropriate authorities. 707 KAR 1:340, Section 17(1) The building principal/designee is responsible for reporting a crime to appropriate authorities in the same manner as for students without disabilities as outlined in the JCPS Code of Acceptable Behavior and Discipline and the Student Bill of Rights. Reporting a crime is to be distinguished from the filing of charges against the student. The definition of crime is the same for students with or without disabilities.

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Transmission of Records If the LEA reports a crime committed by a child with a disability, it shall ensure that copies of the special education and disciplinary records of the child are transmitted for consideration by the appropriate authorities to the extent the transmission is permitted by the Family Education Rights and Privacy Act, 20 U.S.C. Section 1232g. 707 KAR 1:340, Section 17(2) When records are provided to law-enforcement or judicial authorities, the disclosure must be on the condition that the record will not be further disclosed without the written consent of the child’s or youth’s parents or of the youth if he or she is emancipated. When reporting a crime, the building principal/designee contacts the parents of the student in accordance with district procedures. The building principal/designee explains the circumstances of the report and that special education information may be released to the appropriate authorities. The parent is asked to sign a release of records form. This regulation cited above makes it clear that the school can transmit records to appropriate law-enforcement and judicial authorities only if the Family Educational Rights and Privacy Act (FERPA) will allow the disclosure. In accordance with FERPA and KRS 160.720, in most circumstances the district must obtain parental consent to transmit a child’s or youth’s special education records to the authorities. FERPA and state law allow disclosure if the parent consents to the disclosure. If the parent refuses to sign for release of the above records, the building principal immediately contacts the executive director of ECE. Records will be released only if the building principal, the executive director of ECE, and the director of Pupil Personnel agree that this release of records falls under a FERPA exemption as stated below. Under FERPA, exceptions to the parental consent requirement allow for disclosure in other specific circumstances:

A. Student records may be disclosed in compliance with a lawfully issued subpoena; however, parents must be notified in writing that the records have been subpoenaed before they are forwarded.

B. Student records may be disclosed in emergency situations where the disclosure is necessary for the protection of the health or safety of the student or others.

C. The definition of education records in FERPA (Section 99.3) does not include records of the law-enforcement unit of an educational agency, subject to provisions in Section 99.3. Files created and maintained by a school resource office for law-enforcement purposes may not be governed by FERPA and may, under some circumstances, be released without parental consent. (Refer to Jefferson County Board of Education (JCBE) procedures for guidance on this issue.)

Unless the authority to release the records under FERPA is clear (parental consent or application of a specific exception), the district will not release student records. (See also Chapter 9, “Confidentiality of Information.”)

9: Confidentiality 1

CHAPTER 9 CONFIDENTIALITY OF INFORMATION

707 KAR 1:360 SECTION I ACCESS RIGHTS Inspection and Review of Education Records An LEA* shall permit a parent to inspect and review any education records relating to his child that are collected, maintained, or used by the LEA. The LEA shall comply with a request without unnecessary delay and before any meeting regarding an IEP†, dispute resolution meeting, or due process hearing and in no case more that forty-five (45) days after the request has been made. 707 KAR 1:360, Section 1(1) An educational agency or institution shall give full rights under the ACT to either parent, unless the agency or institution has been provided with evidence that there is a court order, State statute, or legally binding document relating to such matters as divorce, separation, or custody that specifically revokes these rights. 34 CFR § 99.4 (FERPA) An LEA may presume that a parent has authority to inspect and review records relating to his child unless the LEA has been advised under a court order that the parent does not have the authority. 707 KAR 1:360, Section 1(3) “Eligible student” means a student, or a former student, who has reached the age of eighteen (18) or is pursuing an education beyond high school and therefore the permission or consent required of, and the rights accorded to the parents of the student [records rights] shall therefore be required of, and accorded to, the student. KRS 160.700(4) The Jefferson County Public School (JCPS) District permits parents to review and inspect any education record that is related to the identification, evaluation, and placement of their child or to the provision of a free appropriate public education (FAPE) and is collected, maintained, or used by the JCPS District. To review and inspect any education record of the child or youth, the parent contacts the building principal or the coordinator of Exceptional Child Education (ECE) Placement. The same access rights apply to the eligible student. The district allows the parent access to the education records of his or her child or youth unless the district is presented with written evidence of a court order or other legally binding document that relates to such matters as divorce, separation, or custody and that specifically revokes parental rights. Access to Education Records If the parent or representative makes a request and all requested records are present and readily available, then he or she is granted immediate access. If the records are not readily available, then the retrieval and access of the child’s or youth’s education records are provided:

A. Without any unnecessary delay; * local educational agency (LEA) which means the JCPS District. † Individual Education Program (IEP)

2 9: Confidentiality

B. Within forty-five (45) calendar days from the time the principal receives the request; C. Before any Individual Education Program (IEP) meeting, dispute-resolution meeting, or

due-process hearing; and D. At a time that is mutually acceptable to the parent and the principal.

Explanation and Interpretation of Records The right to inspect and review education records under this administrative regulation shall include: (a) The right to a response from the LEA to reasonable requests for explanations and interpretations of the records; (b) The right to request that the 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 inspect and review the records. 707 KAR 1:360, Section 1(2) The principal or coordinator of ECE Placement makes sure that one of the following people is present to explain and interpret the records and to answer any questions the parent may have: the counselor, special education teacher, ECE consulting teacher, related-services personnel, or school psychologist/psychometrist. If the primary language or mode of communication used by the parent is not English, then within five (5) business days of a completed parental request to review the education records of a child or youth, the principal notifies the executive director of ECE of the need for a translation of the records. The executive director of ECE obtains the translation prior to any ARC meeting or due-process hearing. Every attempt is made to obtain the translation within forty (40) business days after the request is made. This translation is consistent with the mode of communication used by the parent and therefore may include a recorded or oral reading format. Education Records “Educational Records” means records as defined in the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. Section 1232(g). 707 KAR 1:002, Section 1(23) “Record” means any information recorded in any way, including, but not limited to, handwriting, print, computer media, video or audio tape, film, microfilm, and microfiche. (1) Directly related to a student; and (2) Maintained by an educational agency or institution or by a party acting for the agency or institution. 34 CFR § 99.3 “Education record” means data and information directly relating to a student that is collected or maintained by educational institutions or by a person acting for an institution including academic records and portfolios, achievement tests; aptitude scores; teacher and counselor evaluations; health and personal data; behavioral and psychological evaluations; and directory data recorded in any medium including handwriting, magnetic tapes, film, video, microfiche, computer-generated and stored data, or data otherwise maintained and used by the educational institution or a person acting for an institution. KRS 160.700(3) Test Protocols and Raw Data According to Family Educational Rights and Privacy Act (FERPA), copyrighted test protocols and raw data that are generated by evaluators are the education records that are maintained in the child’s or youth’s permanent ECE record. To the extent that test protocols are integral to understanding the


test results or establishing the validity of test results, the qualified examiner may show the test protocols to parents an discuss them with the parents upon request. In order to abide by copyright laws and protect test validity and security, schools are not required to provide copies of test protocols to parents. Private Notes A note or document in the sole possession of the creator is exempt from parent or student access if the following criteria are met:

A. It is a private note created solely by the individual possessing it; B. It is a personal memory aid; and C. Its contents are accessible to or revealed to no one except the possessor’s temporary

substitute. If another person, such as a teacher or administrator, is knowledgeable of the contents of this note, then it is subject to review by parents or the eligible student. Oral communication from such a note or document makes the document accessible to parents for review, even if the note is maintained in the sole possession of the creator. Representative of Parent to Inspect and Review Records If the parent authorizes an individual to serve as the parent’s representative to inspect and review the records of the child or youth, then the parent or principal completes the Student Education Records Request Form (Appendix A). Upon signature of the parent on the consent form, the district grants the authorized representative access to the education records. SECTION II RECORD OF DISCLOSURE (ACCESS) An LEA shall keep a record of parties obtaining access to education records collected, maintained, or used under 707 KAR Chapter 1 (except access by parents and authorized employees of the LEA), including: (1) The name of the party; (2) The date access was given; and (3) The purpose for which the party is authorized to use the records. 707 KAR 1:360, Section 2

The district includes a Record of Disclosure Form (Appendix B) in each child’s or youth’s education records that are collected, maintained, or used by the district as long as the records are maintained. The Record of Disclosure Form includes:

A. the date the person was given access to the record; B. the name of the person who obtained access to the record; C. the legitimate educational interest (purpose) the individual had in obtaining access.

All individuals — except parents, eligible youth, and employees of the district with a legitimate educational interest in the records — sign the Record of Disclosure Form immediately prior to inspecting and reviewing the record.


SECTION III RECORDS ON MORE THAN ONE CHILD OR YOUTH If any education record includes information on more than one (1) child, the parents of those children shall have the right to inspect and review only the information relating to their child or to be informed of only that specific information. 707 KAR 1:360, Section 3 The district provides information from records containing data on more than one child or youth in such a way as to preserve the confidentiality of the other children and youth. If a parent requests to review and inspect education records that have information about more than one child or youth (e.g., attendance rosters, child tracking systems, grade books), then the person who is responsible for the maintenance of those records makes a copy of the records requested. Before providing the parent access to the copy, the person responsible for the record expunges any personally identifiable information regarding other children and youth. The district ensures that personally identifiable information about any child or youth is not maintained in the education record of another child or youth. SECTION IV LISTS OF TYPES AND LOCATIONS OF RECORDS An LEA shall provide parents, on request, a list of the types and location of education records regarding their child with disabilities that is collected, maintained, or used by the LEA. 707 KAR 1:360, Section 4 The director of Pupil Personnel maintains a list of the types and locations of the education records collected, maintained, and used by the district. A copy of the list is available to parents upon request. The list, which is kept in the director of Pupil Personnel’s office, contains the names, titles, and telephone numbers of the personnel who are responsible for the records and the locations of the records. SECTION V FEES An LEA may charge a fee for copies of records that are made for a parent under 707 KAR Chapter 1 if the fee does not effectively prevent the parent from exercising his right to inspect and review the records. The LEA shall not charge a fee to search for or to retrieve information under 707 KAR Chapter 1. 707 KAR 1:360, Section 5 At the parent’s request, the principal provides copies of the education records of the child or youth to the parent. The copies, including copies of records stored on a computer, microfiche, or other such media, are provided to the parent free of charge. A fee consistent with the JCPS Procedures for Confidentiality of Student Records may be charged to the parent for subsequent copies. A fee is not charged for record search or retrieval. The principal or coordinator of ECE Placement/designee documents in the education record of the child or youth which education records were copied and the date the copies were provided to the parent.


SECTION VI AMENDMENT OF RECORDS AT PARENT’S REQUEST A parent who believes that information in the education records collected, maintained, or used under 707 KAR Chapter 1 is inaccurate, misleading, or violates the privacy or other rights of the child may request the LEA to amend the information. Once a request is made by a parent for an amendment to be made to the child’s record, the LEA shall respond within ten (10) school days. 707 KAR 1:360, Section 6(1) The term record amendment refers to changing, deleting, or destroying information in the education records of a child or youth. If a parent believes that information in the education record of his or her child or youth is inaccurate, is misleading, or violates the privacy or other rights of the child or youth, then the parent may request that the district amend the information. If a parent requests an amendment of records, then the parent or building principal completes the Student Education Records Request Form. (See Appendix A.) The parent must sign the form. Within ten (10) calendar days of receipt of the parental request, the building principal, the coordinator of ECE Placement, and other district personnel discuss the parent’s request and review the record. If the district decides to amend the information, then the building principal informs the parent in writing of the decision and amends the record within seven (7) calendar days of the decision. If after the meeting the district decides not to amend the information in accordance with the parent’s request, then within seven (7) calendar days of the decision not to amend, the building principal provides a written explanation to the parent and advises the parent of the right to a records-amendment hearing. SECTION VII OPPORTUNITY FOR A HEARING If a request to amend the information is made by a parent or legal guardian, the hearing procedures contained in 702 KAR 1:140 shall apply. 707 KAR 1:360, Section 6(2) Upon request, the school district shall arrange for a hearing to be held within thirty (30) days after the request for hearing and notify the student’s parent(s) or guardian, reasonably in advance, of the date, place, and time of the hearing. The hearing shall be conducted by a hearing officer who is a disinterested party and is a certified official of the district appointed by the Superintendent. 702 KAR 1:140, Section 2(1-2) If a request for the amendment of a child’s or youth’s education records is denied, the parent may request a record-amendment hearing to challenge information in the education records and to ensure that it is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of the child or youth.


Such requests must be addressed in writing to: Director of Pupil Personnel Jefferson County Public Schools P.O. Box 34020 Louisville, KY 40232-4020 The Student Education Records Request Form may be used for this purpose. (See Appendix A.) This request may be completed by the parent or by the building principal with the parent’s signature. If a parent or eligible youth requests a hearing to challenge information in the education records, the district will follow the hearing procedures as outlined in the JCPS Procedures for Confidentiality of Student Education Records. A copy of these procedures may be obtained from the Pupil Personnel Office or on the district’s Web site at www.jcpsky.net. SECTION VIII CONSENT Written Parental Consent Except as to disclosures to appropriate law enforcement agencies as referenced in 707 KAR 1:340, Section 17, parental consent shall be obtained before personally identifiable student information is: (a) Disclosed to anyone other than officials of the participating agencies collecting or using the information under 707

KAR Chapter 1; or (b) Used for any purpose other than meeting a requirement under 707 KAR Chapter 1. 707 KAR 1:360, Section 7(1) The written consent must: (a) Specify the records that may be disclosed; (b) State the purpose of the disclosure; and (c) Identify the party or class of parties to whom disclosure may be made. 34 CFR § 99.30(b) Unless otherwise authorized, the district obtains written parental consent (see Appendix C) before disclosing personally identifiable information (other than directory information) to individuals or agencies other than those indicated on the disclosure-without-consent list. (See the list provided in Section 2 of KRS 160.720 in the next section.) The required parental consent form includes the:

A. Specified records to be disclosed; B. Purpose of the disclosure; C. Specific party or class of parties to whom disclosure may be made; D. Date the consent is signed; and E. Signature of the parent or eligible student.

The Authorization to Disclose/Request Information Form (see Appendix C) is available in the principal’s office of the school that the child or youth attends and in the Central Office. Copies of the completed forms are maintained in the education records of the appropriate child or youth.


Disclosure Without Consent The district discloses personally identifiable information from the education records without the written consent of the parent if the disclosure is in accordance with FERPA and applicable Kentucky laws and regulations. Educational institutions shall not permit the release or disclosure of records, reports, or identifiable information on students to third parties other than directory information as defined in KRS 160.700, without parent or eligible student consent except to: (a) Other school officials, including teachers with legitimate educational interests and purposes. (b) Other school systems, colleges and universities to which the student has sought enrollment or transfer or from which

the student was graduated. (c) Federal, state, or local officials who carry out a lawful function and who are authorized to receive this information

pursuant to statute or regulation. This authority includes requests from any agency of the federal or state government for the purposes of determining a student’s eligibility for military service.

(d) Federal, state, or local officials to whom the information is required to be disclosed [e.g. to comply with a judicial order or lawfully issued subpoena, child abuse investigation, etc.]

(e) Individuals or organizations conducting legitimate studies, surveys, and data collection in such a manner so as not to permit personal identification of parents or students.

(f) Accrediting organizations enlisted to carry out accrediting functions. (g) Parents of a dependent student of the parent as defined in Section 152 of the Internal Revenue Code of 1954 (26

U.S.C. sec 152) KRS 160.720 Section 2 Release of Education Records to Another School District The notice to parents of enrolled students and eligible students regarding their rights under FERPA includes a statement that the district releases, without parental consent, the education records of a student who seeks to enroll or does enroll in another school district. When a student seeks to enroll or does enroll in another school district, then upon receipt of a documented request for the transfer of records, the building principal/designee transfers the regular education and special education records of the student. This request may be made by:

A. The parent; B. The eligible student; or C. Personnel of the receiving school.

Requests from another school district for the records of a student with a disability may be accepted in writing, by facsimile, or by phone. Parental consent to release records is not required. Upon receipt of this request from the receiving district, the principal/designee provides copies of the following special education records:

A. The current IEP, including all ongoing progress data and progress reports; B. The meeting summary that pertains to the current IEP; C. Parental consent to conduct evaluations and parental consent to provide special education

services; and D. The current evaluation report and, for a specific learning disability, the initial evaluation

report


If a parent or eligible student requests that the building principal provide a copy of the education records that have been transferred, then the district provides one copy of the transferred records free of charge. If a student transfers to another school within the district, the entire School-Based Admissions and Release Committee (SBARC) Chairperson Folder is transferred to that school. Directory Information “Directory information” means the student’s name; address; telephone listing; date and place of birth; participation in school recognized activities and sports; weight and height of members of athletic teams; dates of attendance; awards received; major field of study; and the most recent previous educational agency or institution attended by the student; contained in educational records in the custody of the public schools. KRS 160.700 Section 1 An educational agency or institution may disclose directory information if it has given public notice to parents of students in attendance and eligible student in attendance at the agency or institution of: (1) The types of personally identifiable information that the agency or institution has designated as directory

information; (2) A parent’s or eligible student’s right to refuse to let the agency or institution designate any or all of those types of

information about the student designated as directory information; and (3) The period of time within which a parent or eligible student has to notify the agency or institution in writing that he

or she does not want any or all of those types of information about the student designated as directory information. 34 CFR § 99.37(a) (FERPA) An educational institution may publish and release to the general public directory information relating to a student. An educational institution shall give public notice of the categories of directory information that it has designated as directory information with respect to each student in attendance and shall allow a reasonable time after the notice has been given for a parent or eligible student to inform the institution that any or all of the information designated should not be released without prior consent. KRS 160.725 Section 1 The district gives the notice described in KRS160.725, Section 1, to parents of enrolled students and eligible students through publication in the Code of Acceptable Behavior and Discipline and the Student Bill of Rights. If a parent or eligible student provides the building principal or the director of Pupil Personnel with written direction not to release specific directory information in accordance with the terms of that notice, then the directory information for the student is not released. Copies of the parent’s or eligible youth’s instructions are maintained in the director of Pupil Personnel’s office and in the school the student attends. If a parent or eligible student so requests, the principal provides the parent or eligible student with a copy of the records that the district discloses. These copies are provided to parents and eligible students free of charge. Emergency May Warrant Disclosure Without Consent An education agency or institution may disclose personally identifiable information from an education record to appropriate parties in connection with an emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals. 34 CFR Section 99.36(a) If an emergency arises in which it is necessary to protect the health and safety of a child or youth or


other individuals, then the district discloses personally identifiable information from the education records of the child or youth to the appropriate parties connected to the emergency. In determining whether disclosure of education records is warranted, the building principal considers the following factors:

A. The seriousness of the threat to the health or safety of the child or youth or other individuals;

B. Whether the information is needed in order to take action during the emergency; C. Whether the individuals to whom the information is disclosed are in a position to act

during the emergency; and D. The extent to which time is of the essence in dealing with the emergency

Upon determination by the building principal that the situation at hand is an emergency and warrants the disclosure of education records, he or she obtains the records of the child or youth and immediately makes them available to the appropriate parties. Other Conditions for Release of Personally Identifiable Information An educational agency or institution may disclose personally identifiable information from an education record only on the condition that the party to whom the information is disclosed will not disclose the information to another party without the prior consent of the parent or eligible student… An education agency shall inform a party to whom disclosure is made of the requirements of this section. 34 CFR § 99.33(a)(1) In disclosing personally identifiable information from education records — other than to parents of students under eighteen (18), to the eligible student, or when releasing directory information — the district informs the party to whom the disclosure is being made that use and disclosure of the information is subject to FERPA requirements. The building principal/designee ensures that the following statement is included with the information that is released: “This information is an education record and is therefore subject to requirements of the Family Education Rights and Privacy Act.” Any information received by the district is used only for the purposes for which the disclosure was made. Prior to re-disclosing any information in an education record that was obtained from another source, the ARC chairperson/district representative contacts the parent or eligible student in order to obtain the parent’s or eligible youth’s written consent for re-disclosure. The parent or eligible student completes the Authorization to Disclose/Request Information Form (see Appendix C) prior to the re-disclosure of any information. Parent Refusal to Release Information If a parent refuses to provide consent for release of personally identifiable information, a party may request a due process hearing pursuant to 707 KAR 1:340 or comply with the FERPA. 707 KAR 1:360, Section 7(3) If a parent refuses to give consent for the disclosure of education records that are needed in order to


provide FAPE and the district disagrees with the parent’s refusal for disclosure, then the district may request a due-process hearing. (See Chapter 7, “Procedural Safeguards and State Complaint Procedures.”) Compliance with FERPA means that the district complies with the disclosure without consent requirements as stated in the previous subsection titled “Disclosure Without Consent” of this chapter. SECTION IX SAFEGUARDS An LEA shall protect the confidentiality of personally identifiable student information at collection, storage, disclosure, and destruction stages. 707 KAR 1:360, Section 8(1) An LEA shall assign a staff member to assume responsibility for ensuring the confidentiality of any personally identifiable student information. 707 KAR 1:360, Section 8(2) An LEA employee collecting or using personally identifiable information shall receive training or instruction regarding the requirements of this administrative regulation. 707 KAR 1:360, Section 8(3) Record Security The district ensures that the confidentiality of personally identifiable information is protected and that unauthorized access is prevented at the following stages:

A. Collection (e.g., during the handling of referrals); B. Storage (e.g., secure files, protection of computer files); C. Disclosure (e.g., during access to records); and D. Destruction (e.g., during the process of record destruction as defined by the Record

Retention Schedule) The director of Pupil Personnel is responsible for ensuring the confidentiality of any personally identifiable information. The director of Pupil Personnel and the coordinator of ECE Placement are responsible for the general supervision of all education records that are related to children or youth with disabilities, even though other officials and personnel (e.g., building principals, teachers) have custody and responsibility for the records. All education records of children and youth who are enrolled in the district are stored in locked file cabinets, vaults, or rooms. Computer files containing education records of children and youth are maintained in secure computer systems. Training Regarding Confidentiality Issues The director of Pupil Personnel and executive director of ECE arrange for district employees who collect or use personally identifiable information to receive training regarding district procedures for ensuring confidentiality. Within sixty (60) calendar days of the start of school, all district personnel who have access to education records are trained or updated on the district’s procedures regarding


confidentiality. For new employees, this training is conducted prior to their having access to education records. When a new staff person is employed later during the school year, it is the responsibility of the individual’s immediate supervisor to provide training on confidentiality. Training is also provided for volunteers and any others who may have access to personally identifiable information for students, such as mentors, foster grandparents, and student teachers. Listing of Persons Who May Have Access An LEA shall maintain, for public inspection, a current listing of the names and positions of employees within the LEA who may have access to personally identifiable student information. 707 KAR 1:360, Section 8(4) District personnel are considered to have a legitimate educational interest if the individual needs to review an education record in order to fulfill his or her professional responsibility. Each building principal in the district maintains in his or her office a current list of names and titles of district personnel who have been determined to have a legitimate educational interest. These personnel:

A. May request and have access to education records in the performance of their duties; and B. Do not need to be listed on the Record of Disclosure Form.

The Access List (see Appendix D), which is updated each September or as necessary, includes names and titles of employees determined to have a legitimate educational interest. SECTION X DESTRUCTION OF RECORDS An LEA shall inform the parent when personally identifiable student information collected, maintained, or used under 707 KAR Chapter 1 is no longer needed to provide education services to a child. The information shall be destroyed at the request of a parent. However, a permanent record of a child’s name, address, and phone number, his grade, attendance record, classes attended, grade level completed, and year completed may be maintained without time limitations. 707 KAR 1:360, Section 9 The district defines destruction as the physical removal of personal identifiers from records so that the information is no longer personally identifiable. Destruction is a means for protection against improper or unauthorized use. The records of a child or youth who has graduated or otherwise left the district and who was formerly enrolled in a special education program may be destroyed when the records are no longer needed to provide educational services to a child or youth and after they have been retained according to the Kentucky Record Retention Schedule. These records include personally identifiable student information that is collected, maintained, or used for the identification, evaluation, or placement of the exceptional child or youth. The parent of the child or youth will be informed by individual or public notice prior to the destruction of these records. A parent may also request that the information be destroyed. This request should be addressed in writing to the executive director of ECE. The parents are informed that these records may be needed by the child or youth or the parent(s) for Social Security benefits or other purposes and that a


permanent record of a child’s or youth’s name, address, phone number, grades, attendance, classes attended, grade level completed, and year completed may be maintained without time limitations. Even if a parent requests destruction, the district does not destroy any records:

A. That have not been retained for a minimum period of time since the last activity (see the Kentucky Record Retention Schedule);

B. If there is an outstanding request to inspect or review the records; C. If there is an unresolved finding of noncompliance in a program or fiscal audit; or D. If the records are needed for planning and implementing an IEP to demonstrate

compliance with applicable state and federal requirements. If the parent of a child or youth with disabilities requests the destruction of records, then the director of Pupil Personnel informs the parent or eligible student in writing that the records may be needed for Social Security benefits or other purposes. SECTION XI RIGHTS OF THE CHILD OR YOUTH The rights of parents regarding education records under FERPA and 707 KAR Chapter 1 shall be transferred to the child at the age of eighteen (18), unless the child has been declared incompetent under KRS Chapter 387 in a court of law. 707 KAR 1:360, Section 10 Whenever a student attains the age of eighteen (18) years, the rights accorded to — and the consent required of — the parent transfer from the parent to the eligible student. At least one year before a youth’s eighteenth (18th) birthday, as identified through the child tracking system, the executive director of ECE/designee provides written notice to the parent that the rights regarding the review, inspection, and disclosure of records will transfer to the youth at the age of eighteen (18) unless the parent provides the district with evidence that there is a court order or legal document that shows the parent as the guardian of the youth or as the youth’s representative in educational matters. The district does not disclose education records of a youth over the age of eighteen (18) to the parent without:

A. The youth’s written consent; B. A court order; or C. Proof that the youth is a dependent student of such parents as defined in Section 152 of

the Internal Revenue Code of 1986 (25 U.S.C. Section 152). SECTION XII RECORDS REGARDING MIGRATORY CHILDREN WITH

DISABILITIES An LEA shall transfer health and education records on migratory children with disabilities who move to other states, in accordance with No Child Left Behind Act. 707 KAR 1:290, Section 10


APPENDIX A

STUDENT EDUCATION RECORDS REQUEST


Jefferson County Public Schools Exceptional Child Education (ECE) P.O. Box 34020 Louisville, Kentucky 40232-4020

STUDENT EDUCATION RECORDS REQUEST Student’s Name: Student’s Date of Birth: I hereby make the following request(s) concerning the student’s education records. Check one:

I request that the representative listed below inspect and review the student’s education records. ___________________________________, ______________________________________ Representative Affiliation/Agency ___________________________________________________________________________ Purpose of Disclosure

I request an amendment of the student’s education records.

I request a hearing to challenge the student’s education records (i.e., a Record-Amendment Hearing).

If this request is for an amendment or hearing, please describe below the specific information in the records for which an amendment/hearing is requested and the reason for the request.

I certify that I am the parent or legal guardian who has custody of the student named above or that I am at least eighteen (18) years of age and am making the above request concerning my own education records. Signed: ___________________________________ Date: ___________________________ Parent/Guardian or Student


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Student I.D. Number


APPENDIX B

RECORD OF DISCLOSURE


Jefferson County Public Schools Exceptional Child Education (ECE) P.O. Box 34020 Louisville, Kentucky 40232-4020

Record of Disclosure

Student’s Name: _______________________________ Student’s Date of Birth: _____________ Record the following information on any disclosure (e.g., inspection, release, transfer) of this student’s education record to any party other than the student’s parents/guardians, the student (age 18 or older), and/or JCPS personnel:

1. The date of disclosure or the date that access was given/denied; 2. The name of the party requesting or obtaining education records; and 3. The purpose for which the party requests to review the records and a list of the

records inspected, reviewed, or copied. Note: These records will be disclosed to the named party on the condition that such party will not permit any other party to have access to the information without the written consent of the parents/guardians or of the student who is eighteen (18) years old.

Date Name of party inspecting records or obtaining copies and the agency represented if applicable

List the specific purpose for which the records are inspected or copied; list the records inspected, reviewed, or copied

This Record of Disclosure may be viewed only by parents/guardians, students age eighteen (18) or older, and/or JCPS personnel.


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Student I.D. Number


APPENDIX C

AUTHORIZATION TO DISCLOSE/REQUEST INFORMATION


Jefferson County Public Schools

AUTHORIZATION TO DISCLOSE/REQUEST INFORMATION Student’s Name: Student’s Date of Birth: Social Security No.(Optional):

Phone No.:

Address:

City, State, Zip Code:

I hereby authorize the release/obtainment of information for the above-named individual. This information may be exchanged by mail, electronically, or by telephone. I understand that this authorization for release is subject to revocation at any time in the form of written notice from me. This release will expire, unless otherwise specified, in one year after the date at the bottom of this form. Name of Individual: School/Department: Agency: Jefferson County Public Schools Street Address: Street Address: City, State, Zip: City, State, Zip: Louisville, KY 402_____ Phone No: Fax No: Phone No: Fax No:

The specific information to be released: Assessment reports (e.g., psychological, psychiatric, educational, audiological/hearing, occupational

therapy/physical therapy, speech/language) Current Individual Education Program (IEP) and meeting summary Documentation of parental consent for evaluation and placement Documentation of eligibility determination

Cumulative records including grades and attendance records Medical Information (e.g.., treatment plan)_______________________________________________ Progress notes Psycho-social history Discharge summary Other (Please specify.) _______________________________________________________________ Purpose of the disclosure (e.g., educational planning) _____________________________________________

I understand that information used or disclosed pursuant to this authorization will be subject to the requirements of the Family Educational Rights and Privacy Act (FERPA) and the Health Insurance Portability and Accountability Act (HIPAA) regarding redisclosure by the recipient. _________________________________________________________ ______________________ Parent’s/Guardian’s Signature or Student if over age eighteen (18) years Date _________________________________________________________ ______________________ Witness’s Signature Date


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APPENDIX D

ACCESS LIST — ECE STUDENT RECORDS


Jefferson County Public Schools

Exceptional Child Education (ECE) P.O. Box 34020 Louisville, Kentucky 40232-4020

ACCESS LIST — ECE STUDENT RECORDS

School Building/Location: ___________________________ The following school personnel have access to ECE student records during the _______ school year:

1. Principal: _____________________________________________________________________

2. Assistant principal(s): ___________________________________________________________

_____________________________________________________________________________

3. Counselor(s)/Dean(s): ___________________________________________________________

_____________________________________________________________________________

4. Regular Education Program teachers: ______________________________________________

_____________________________________________________________________________

_____________________________________________________________________________

_____________________________________________________________________________

_____________________________________________________________________________

5. ECE teachers: _________________________________________________________________

_____________________________________________________________________________

6. Related-services personnel: ______________________________________________________

_____________________________________________________________________________

7. ECE consulting teachers: ________________________________________________________

8. School psychologist/psychometrist: ________________________________________________

9. ECE Central Office personnel: ____________________________________________________

_____________________________________________________________________________

_____________________________________________________________________________ This list is to be updated annually and maintained in the principal’s office.


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10: Private Schools 1

CHAPTER 10 CHILDREN WITH DISABILITIES WHO ARE ENROLLED IN PRIVATE SCHOOL

707 KAR 1:370 SECTION I CHILD FIND FOR CHILDREN WITH DISABILITIES WHO HAVE

BEEN ENROLLED BY THEIR PARENTS IN PRIVATE SCHOOL “Private school children with disabilities” means children with disabilities enrolled by the parents in private elementary or secondary schools as defined by IDEA* regulations, 34 C.F.R. Part 300:13 and 300.36, and not children with disabilities enrolled in private schools upon referral by a LEA†. 707 KAR 1:002 Section 1(47) “Home school” means for the purposes of 707 KAR Chapter 1 only, a private school primarily conducted in one’s residence. 707 KAR 1:002, Section 1(31) In Kentucky, private, home, and religious schools are all considered private schools. For the purposes of special education requirements, children and youth who are being home-schooled are considered to be in a private school according to Kentucky law. An LEA shall locate, identify, and evaluate all private school children with disabilities, including school children attending private, religious schools within the boundaries of the LEA. These activities shall be comparable to the activities to locate, identify, and evaluate children with disabilities in the public schools. An LEA in which private schools are located shall include parentally-placed private school children who attend those schools but reside in a state other than Kentucky in the LEA’s child find activities. 707 KAR 1:370, Section 2(1) In accordance with Child Find procedures, the Jefferson County Public School (JCPS) District locates, identifies and evaluates all children and youth with disabilities who attend a private, home, or religious school within the boundaries of the JCPS District. The methods used to locate, identify, and evaluate these children and youth in private schools are comparable to the methods used for children and youth in public schools, as referenced in Chapter 3, “Child Find, Evaluation, and Reevaluation,” and Chapter 4, “Determination of Eligibility.” The executive director of ECE and other appropriate district personnel, consult with appropriate representatives of private school students to determine how best to conduct Child Find activities. SECTION II PARENTAL CONSENT FOR EVALUATION If a parent of a child who is parentally placed in a private school does not provide consent for the initial evaluation or the reevaluation or a parent fails to respond to such a request, the LEA: (a) Shall not use the procedures in 707 KAR 1:340 for mediation, dispute resolution meeting, or a due process hearing; (b) Shall not be required to consider the child as eligible for services under this administrative regulation; and (c) Shall document its attempts to obtain parental consent which may include records of telephone calls, copies of correspondence, records of home or place of employment visits, and the results of these efforts. 707 KAR 1:370, Section 3

* Individuals with Disabilities Act (IDEA) † local educational agency (LEA) which means the JCPS district

2 10: Private Schools

The district evaluates all children with suspected disabilities who attend any private school within the district’s geographical boundaries in accordance with procedures in Chapter 3, “Child Find, Evaluation, and Reevaluation,” and Chapter 7, “Procedural Safeguards and State Complaint Procedures.” When the parent of a child who is parentally placed in a private school does not provide consent for initial evaluation or reevaluation, the executive director of Exceptional Child Education (ECE)/designee is notified and documentation of the efforts to obtain parental consent are maintained in a file located in the office of the executive director of ECE. SECTION III DETERMINATION OF SERVICES FOR PARENTALLY PLACED

PRIVATE SCHOOL CHILDREN Determination of Proportionate Amount of Spending The LEA shall maintain in its records and provide to KDE‡: (a) The number of children evaluated under this section; (b) The number of children determined to be children with disabilities under this section; and (c) The number of children served under this section. 707 KAR 1:370, Section 2(2) An LEA shall provide special education and related services to parentally placed private school children with disabilities in accordance with the procedure found in Section 5 of this administrative regulation, to the extent consistent with the number and location of these children enrolled in private schools located within the school district boundaries. 707 KAR 1:370, Section 4(1) To meet this requirement, an LEA shall spend a proportionate amount of the federal money it receives under the IDEA pursuant to 34 C.F.R. 300.133. This amount shall be determined after the LEA has completed its child find activities and submitted a child count figure to KDE. This child count shall be conducted on December 1 of each year. 707 KAR 1:370, Section 4(3) Each year, following completion of the private school census, the executive director of ECE/designee identifies eligible children and youth with disabilities who attend private schools. Each December 1, private school representatives submit to the executive director of ECE/designee a list of children and youth with disabilities who attend the private school who were not assessed by the district (e.g., students who were assessed in another state or county in Kentucky). Eligibility is verified through a review of records submitted by the private school. The executive director of ECE is responsible for ensuring that the child tracking system (see Chapter 3, “Child Find, Evaluation, and Reevaluation”) includes information on all children and youth with disabilities in private schools, even though those students may not currently receive services from the district. This information is used to determine proportionate amount of funding as well as the implementation of reevaluation timelines. The count is used to determine the amount that the district will spend in the next fiscal year on providing special education and related services to private school children and youth with ‡ Kentucky Department of Education (KDE)


disabilities. The amount to be spent will be an amount that is the same proportion of the district Individuals with Disabilities Education Act-B (IDEA-B) Basic grant as the number of private school children and youth with disabilities. The Kentucky Department of Education (KDE) provides the district with the calculated proportionate amounts. Once the proportionate share of funds is determined, the funds that are expended do not have to be federal funds. Therefore, using state categorical aid funds or local funds could meet the requirements of the proportionate share of funds. The Kentucky Constitution, Section 189, does prohibit the appropriation, use, and aid of any nonpublic (i.e., private) school through state taxes levied for educational purposes; therefore, teachers paid from the district’s general fund cannot provide services at the private school site. An LEA shall not consider the costs [Child Find], including the cost of individual evaluations incurred by the LEA’s Child Find activities, in meeting its obligation under Section 4(3) of this administrative regulation. 707 KAR 1:370, Section 2(4) Consultation With Representatives of Private Schools Regarding Services A LEA shall consult, in a meaningful and timely fashion, with private school representatives, and parents or representatives of parentally-placed school children with disabilities during the design and development of special education and related services regarding the following: (a) The child find process, including how children suspected of having a disability can participate equitably and how

parents, teachers, and private school officials will be informed of the process; (b) The determination of the proportionate share of federal funds including how calculated; (c) How the consultation process will operate throughout the school year to ensure that parentally-placed children with

disabilities identified through the child find process can meaningfully participate in special education and related services;

(d) How, where, and by whom special education and related services will be provided including: 1. A discussion of the types of services, including direct services and alternate service delivery methods; 2. How special education and related services will be apportioned if funds are not sufficient to serve all parentally placed private school students with disabilities; and 3. How and when those decisions will be made; and (e) How the LEA will provide a written explanation to the private schools of the reasons why the LEA chose not to

provide services directly or through contract, if the LEA disagrees with the views of the private school representatives.

When timely and meaningful consultation has occurred, the LEA shall obtain a written affirmation signed by the representatives of the private schools. If a private school does not provide the affirmation within a reasonable period of time, the LEA shall forward the documentation of the consultation process to the KDE. 707 KAR 1:370, Section 5(1-2) After the determination of the amount of funds that must be allocated for providing services to children and youth in private school and prior to the beginning of the school year, the district:

A. Consults with representatives of the private school; B. Determines which children and youth or group of students will receive services; C. Determines what type of services will be provided; D. Determines how and where services will be provided; and E. Determines how the services provided will be evaluated.

Consultations with appropriate representatives of private school students occur prior to making decisions that affect the ability of a student in a private school to participate in services. These


representatives must have a genuine opportunity to express their views and to provide input in the decision-making process. The district ultimately determines the types and levels of services to be provided. The child tracking system is used by the executive director of ECE to obtain a list of private schools located within the district’s geographical boundaries and a list of children with disabilities who are attending these private schools. The director of Pupil Personnel/designee maintains the child tracking system in accordance with KRS 159.160, which requires nonpublic schools to report to the local superintendent information needed to comply with the laws regarding compulsory school attendance. Using this listing, the executive director of ECE mails letters to administrators of all private schools. This letter explains the opportunity for input (e.g., meeting, written response) into the district plans for conducting Child Find — including locating and identify needs — for private school children and youth with disabilities. The executive director of ECE/designee maintains written records of this process and the input received from appropriate representatives of private schools. Following the consultation, the district reviews the needs of all parentally placed private school children; considers the views of the parents and private school representatives; and considers the number of students, type(s) of services, location of services, and the service provider to determine how to apportion the funds for “equitable participation.” The district requests a written affirmation from the private school representatives that they participated in the meeting. If the district does not receive a written affirmation, the district submits written documentation of the process and sends it to the KDE Office of Exceptional Children. SECTION IV SERVICES PROVIDED UNDER SERVICES PLANS The student with a disability who is unilaterally placed in a private school by parents may, under some circumstances, actually be entitled to receive no services from the district. An LEA shall ensure that services provided under a services plan shall be provided by personnel meeting the same standards as personnel providing services in the public school, except private school teachers that provide services under a service plan shall not have to meet the highly qualified special education teacher requirements of 20 U.S.C. 1401(10). Private school children with disabilities may receive a different amount of services than children with disabilities in public schools. There shall be no individual right to special education and related services, but the student shall receive the services provided in the service plan in light of the services the LEA has determined to provide. A private school child with disability who has been designated to receive services shall have a services plan that describes the specific special education or related services that the LEA will provide in light of the services the LEA has determined to provide private school children with disabilities through the process in Section 5 of this administrative regulation. 707 KAR 1:370, Section 6(1-3) The services plan shall, to the extent appropriate: (a) Meet the requirements of an IEP under 707 KAR 1:320 with respect to the services provided; and (b) Be developed, reviewed, and revised consistent with the requirements to develop, review, and revise IEP’s. 707 KAR 1:370, Section 6(4)


Services delivered through a service plan shall be provided by: (a) Employees of the LEA; or (b) Through a contract with the LEA. 707 KAR 1:370, Section 6(5) Special education and related services provided through a service plan shall be secular, neutral, and nonideological. 707 KAR 1:370, Section 6(6) A services plan is implemented for each child or youth with a disability who is designated to receive services. Once it is decided which children and youth or group of students with disabilities will receive services, the district, through an Admissions and Release Committee (ARC) meeting, is responsible for preparing a services plan for each eligible student who is designated to receive services. Children and youth in private schools have no individual right to receive free and appropriate public education (FAPE); however, they are allowed to receive services through a services plan. The process for developing the services plan generally follows the Individual Education Program (IEP) process, in that services should be related to the child’s or youth’s individual needs resulting from the disability. The services plan contains IEP components related to the actual service(s) to be provided to the private school student with a disability. Like an IEP, the services plan must be reviewed and revised on an annual basis, or as necessary, in accordance with procedures in Chapter 5, “Individual Education Program.” ARC meetings are scheduled and conducted in accordance with procedures in Chapter 5 and Chapter 7, “Procedural Safeguards and State Complaint Procedures.” Any ARC meeting to develop, review, and revise a services plan must include all of the participants required for an ARC meeting in accordance with procedures in Chapter 5. A representative of the private school is included in the ARC to develop or revise a child’s or youth’s services plan. If the representative cannot attend the ARC meeting, the district uses other methods to ensure the representative’s participation, including individual or conference telephone calls. The participation of the child’s or youth’s private school teacher meets this requirement. If a determination is made that the child needs special education and related services, the general rule is that an IEP must be developed for the child in accordance with Chapter 5, with one important exception. If the parents make clear that they intend to enroll their child in a private school and that they are not interested in a public program or placement for their child, the district need not develop an IEP for the child. If the parents choose not to accept the district’s offer to make FAPE available to their child, the district still must include the child in its eligible population of parentally-placed private school children and youth with disabilities. A services plan describes the special and/or related services that the student will receive from the district. The services are provided by personnel who meet the same standards as personnel who provide services to other children and youth with disabilities in the district. The services plan describes the specific special education and/or related services to be provided to the student as a result of the consultation with appropriate representatives. To the extent appropriate, the services plan includes all of the IEP requirements, in accordance with Chapter 5. The elements in each child’s or youth’s services plan may vary, however, depending on the services to be provided.


SECTION V LOCATION OF SERVICES A service to a private school child with a disability may be provided at a site determined by the LEA. If necessary for the child to benefit from or participate in the services provided under a services plan, the private school child with a disability shall be provided transportation: (a) From the child’s school or the child’s home to a site other than the private school; and (b) From the service site to the private school, or to the child’s home, depending on the timing of the services. 707 KAR 1:370, Section 7(1) A LEA shall not be required to provide transportation from the child’s home to the private school. The cost of transportation may be included in calculating the amount to be expended on private school children with disabilities. 707 KAR 1:370, Section 7(2-3) The district, in consultation with the private school and the parents, makes the final decision about the location of the delivery of services. Ultimately, the decision rests with the district. SECTION VI DUE-PROCESS PROCEDURES Parents The due process procedures afforded to parents and children with disabilities described in 707 KAR 1:340, Sections 4, 6, 8, 9, 10, 11, 12 shall not apply to complaints that the LEA failed to meet the requirements of this administrative regulation, including the provision of services indicated on a services plan. However, these requirements may be the basis for a written formal complaint under 707 KAR 1:340, Section 7. The due process procedures described in 707 KAR 1:340 shall apply to complaints that the LEA failed to complete its responsibilities under child find for private school children with disabilities and its responsibilities to evaluate and determine eligibility for private school children with disabilities. 707 KAR 1:370, Section 8(1) Parents of children and youth who are voluntarily enrolled in private schools and receiving services under a services plan cannot seek due-process or mediation regarding the school’s alleged failure to meet the requirement of providing services to these children and youth. Rather, the parents may request a meeting to review and revise the child’s or youth’s services plan, or the state complaint process may be used. Parents can seek due process to challenge the district’s Child Find activities or its failure to comply with the evaluation requirements. In the event of disagreements between parents and the district, the ARC chairperson/district representative is responsible for explaining to the parents their rights under this section of KAR. Private School May Submit Complaint A private school official has the right to submit a state written complaint to the LEA and the Kentucky Department of Education as outlined in 707 KAR 1:340, Section 7, for allegations that the LEA: (a) Did not engage in timely and meaningful consultation; or (b) Did not give due consideration to the views of the private school official.

707 KAR 1:370, Section 8(2)


If the private school official submits a state written complaint, the official shall provide the basis of the alleged noncompliance by the LEA. If the private school official is dissatisfied with the final decision of the Kentucky Department of Education, the official may submit a complaint to the Secretary of the United States Department of Education. If such a complaint is filed with the secretary, the Kentucky Department of Education shall forward the appropriate documentation to the Secretary. 707 KAR 1:370, Section 8(3-4) SECTION VII RESTRICTIONS ON SERVING NONPUBLIC STUDENTS An LEA shall not use funds under part B of IDEA to finance the existing level of instruction in a private school or to otherwise benefit the private school. The LEA shall use the funds provided under IDEA to meet the special education and related services needs of private school children with disabilities but not for: (a) The needs of a private school; or (b) The general needs of the students enrolled in the private school. 707 KAR 1:370, Section 9(1) An LEA may use funds under Part B of IDEA to make public school personnel available in private schools to the extent necessary to provide services under a services plan and if those services are not normally provided by the private school. 707 KAR 1:370, Section 9(2) An LEA may use funds under Part B of IDEA to pay for services of private school personnel to provide services under a services plan and if the employee performs the services outside his regular hours of duty and the employee performs the services under the supervision and control of the LEA. 707 KAR 1:370, Section 9(3) The LEA shall keep title to and exercise continuing administrative control of all property, equipment, and supplies that the LEA acquires with funds under Part B of IDEA and uses for the benefit of private school children with disabilities. An LEA may place equipment and supplies in a private school for the period of time needed to provide the services. 707 KAR 1:370, Section 9(4) The LEA shall ensure that the equipment, and supplies placed in a private school are used only for Part B purposes and can be removed from the private school without remodeling the private school facility. The LEA shall remove equipment and supplies from the private school if the equipment and supplies are no longer needed for Part B purposes, or if removal is necessary to avoid unauthorized use of the equipment and supplies. 707 KAR 1:370, Section 9(5-6) The LEA shall not use any funds under Part B of IDEA for repairs, minor remodeling, or construction of private school facilities. 707 KAR 1:370, Section 9(7) The executive director of ECE will monitor the use of Part B funds that are used to provide services to private school children and youth in order to ensure for legal compliance in the use of such funds.


SECTION VIII CHILDREN WITH DISABILITIES ENROLLED IN PRIVATE SCHOOLS BY THEIR PARENTS WHEN FAPE IS AN ISSUE

An LEA shall make FAPE§ available to each child with a disability. If a parent decides to place his child with a disability in a private school after the offer of FAPE, the LEA shall not be required to pay for the cost of the private education. Disagreements between a parent and the LEA regarding the availability of a program appropriate for the student and financial responsibility shall be subject to the due process procedures in 707 KAR 1:340. 707 KAR 1:370, Section 1(1) If the ARC determines that the district has an appropriate educational program for the student and the parent chooses to place the student in a program or facility in another county or independent district or private school, the parent assumes responsibility for payment of the costs incurred in educating the student. The district is not required to pay for the education of the student with a disability in any location other than the one selected by the district if the student has FAPE available from the public school district of residence and the parents chose to unilaterally place the student in a private school or facility. Disagreements between a parent and the district regarding the availability of an appropriate program for the student and financial responsibility are subject to the due-process procedures outlined in Chapter 7, “Procedural Safeguards and State Complaint Procedures.” If a parent of a child with a disability, who previously received special education and related services under the authority of the LEA enrolls the child in a private school without the consent of or referral by the LEA, a hearing officer or a court may award financial reimbursement to the parent if it is determined that the LEA did not offer FAPE to the child in a timely manner and the private placement is appropriate. This may be awarded even if the parents did not receive consent from the LEA for the private placement and the LEA did not make a referral to the private school. A hearing officer or a court may determine a private school placement to be appropriate even though it does not meet state standards that apply to the LEA. 707 KAR 1:370, Section 1(2) The amount of the financial reimbursement described in subsection (2) of this section may be reduced or denied if: (a) At the most recent ARC meeting prior to the removal by the parents of their child with a disability to the private

school, the parents did not inform the LEA that they were rejecting the proposed LEA placement, including stating their concerns and their intent to enroll the child in a private school at public expense;

(b) The parents did not give written notice to the LEA of the information described in paragraph (a) of this subsection at least ten (10) business days (including any holidays that occur on a business day) prior to the removal of the child,;

(c) Prior to the parent’s removal of the child, the LEA informed the parents of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for the evaluation; or

(d) There is a judicial finding that the actions taken by the parents were unreasonable. 707 KAR 1:370, Section 1(3) The district informs the parent of his or her responsibility to give notice to the district prior to withdrawing the child or youth from the district and enrolling him or her in a private school. This notice is given through the procedural safeguards notice provided to parents in accordance with Chapter 7 of these procedures.

§ free appropriate public education (FAPE


The amount of financial reimbursement shall not be reduced or denied for the failure to provide the notice described in subsection (3) of this section if: (a) The parent is illiterate; (b) Compliance with this notice requirement would likely result in physical or serious emotional harm to the child; (c) The school prevented the parent from providing the notice; or (d) The parent had not received notice from the LEA of his obligation to provide this notice.

707 KAR 1:370, Section 1