Education, Dept. of

General Agency, Board or Commission Rules

Chapter 7: Serving Children with Disabilities

Effective Date: 08/19/1993 to 05/04/2000

Rule Type: Superceded Rules & Regulations

Reference Number: 206.0002.7.08191993

CHAPTER VII

STATE BOARD OF EDUCATION RULES AND REGULATIONS FOR SERVING CHILDREN WITH DISABILITIES

General Provisions

Section 1. Authority. These rules are authorized by W.S. 21-2-304(b)(xi) and have been adopted by the State Board of Education as authorized by the Wyoming Administrative Procedure Act (W.S. 16-3-102 through 16-3-115). Amendments to these rules become effective as provided by the Wyoming Administrative Procedure Act.

(a) Purpose. The purposes of these rules are:

(i) to ensure that all children with disabilities living in Wyoming receive a free and appropriate public education (FAPE);

(A) FAPE for children ages three to 21 years is provided in programs which meet standards established and approved by the Wyoming State Board of Education.

(B) FAPE for children from birth to three years of age is provided in programs which meet standards established and approved by the State Department of Health.

(ii) to provide an organized system for conducting public education programs for children with disabilities within the State of Wyoming;

(iii) to establish state standards for FAPE for children with disabilities consistent with the requirements of the Individuals with Disabilities Education Act (IDEA);

(iv) to establish procedures which protect the rights of children with disabilities and their parent(s); and

(v) to provide reimbursement for public agencies for serving children with disabilities as authorized under W.S. 21-13-309e and 34 CFR, Part 300.

(b) Applicability. These rules and amendments govern the operation of all programs and services provided to children with disabilities by any public agency within the State of Wyoming.

(i) The Wyoming State Plan, developed by the Wyoming Department of Education (WDE) and approved by the federal Office of Special Education Programs (OSEP), contains written policies and procedures governing the requirements described in these rules.

(ii) All provisions under Part B of IDEA apply to each political subdivision of the State, irrespective of whether the subdivision receives any Part B funds. The requirements of IDEA are binding on each public agency that has direct or delegated authority to provide special education and related services in Wyoming. This does not limit the responsibility of any agency for providing or paying appropriate costs for FAPE for children with disabilities in Wyoming.

(iii) These rules are effective as provided by W.S. 16-3-104 and govern entitlement and programs for the 1992-1993 school year and each year thereafter.

(c) Full Education Opportunity Goal. Wyoming’s full education opportunity goal is that by June 30, 1999 all children with disabilities ages birth through 21 are provided full education opportunities.

Responsibilities of WDE

Section 2. General Responsibilities. WDE ensures that each agency program administered within the State of Wyoming which provides services to children with disabilities complies with applicable provisions of each of the following:

(a) Wyoming Statutes: W.S. 21-2-501, 21-2-502 and 21-2-701 through 21-2-705;

(b) Federal Law: P.L. 101-476 IDEA and its amendments (previously P.L. 94-142);

and

(c) these rules.

Section 3. Evaluation of Program Effectiveness. WDE monitors each education program which provides services to children with disabilities within the State of Wyoming.

(a) Annual Evaluation. WDE collects and analyzes necessary information from agencies to annually evaluate the effectiveness of programs in meeting the educational needs of children with disabilities.

(b) Evaluation Procedures. WDE monitors compliance of agencies through:

(i) review of documents or records;

(ii) review of information obtained through interviews with officials or employees of agencies, students, parents, or other relevant persons; and

(iii) inspection or observation of facilities, programs or procedures used by the public agency, including the implementation of the Individualized Education Program (IEP) and Least Restrictive Environment (LRE).

(c) Compliance Monitoring Feedback. Within 30 work days of the completion of WDE on-site compliance monitoring of a agency, WDE sends a letter to the agency stating that:

(i) WDE finds that the agency appears to be currently meeting all of its compliance responsibilities; or

(ii) WDE finds that the agency has failed to meet one or more compliance responsibilities and must within 30 work days submit a corrective action plan to eliminate such failures. WDE's letter includes a description of each compliance deficiency and an offer of WDE technical assistance in developing the corrective action plan.

(d) Corrective Action Plan. WDE formally accepts a corrective action plan submitted by an agency when the plan provides:

(i) a description of action(s) the agency will take to correct each compliance deficiency;

(ii) the timelines within which the agency will take the specified action(s);

(iii) the person responsible for each action; and

(iv) the documentation the agency will submit to show that compliance deficiencies have been corrected.

(e) Enforcement. If an agency fails to correct deficiencies within one year, the State Superintendent initiates whatever enforcement action is necessary to ensure that all compliance responsibilities of the agency are met. This includes:

(i) ensuring that direct services are provided to children with disabilities in the area served by the agency; and/or

(ii) disapproving a Part B application submitted by the agency and withholding further Part B payments; and/or

(iii) requesting that the State Board of Education review and take action on the agency's accreditation status.

(iv) requesting that the Attorney General file a civil action to compel the agency to meet its compliance responsibilities.

Section 4. Complaint Procedures. WDE maintains a system to receive and resolve written complaints which allege that an agency has failed to meet a compliance responsibility.

(a) Formal Complaints. Upon receiving a signed, written allegation that a agency has failed to meet one or more compliance responsibilities, WDE determines whether the allegation provides information adequate to constitute a formal complaint.

(i) Adequate information for a formal complaint includes, at minimum, a written description of the facts surrounding the asserted unmet compliance responsibility.

(ii) If a written allegation does not constitute a formal complaint, WDE informs the organization or individual submitting the allegation of any additional information required.

(b) Investigation. For each formal complaint received, WDE conducts a thorough investigation of each alleged failure to meet a compliance responsibility set forth in the complaint. WDE or the independent investigator gathers whatever information is necessary to determine the validity of the complaint. If the complaint alleges that WDE has failed to meet one or more compliance responsibilities, the State Superintendent assigns an independent investigator to conduct the investigation.

(c) Notification. Within 30 work days of receipt of a formal complaint, WDE or the independent investigator notifies the complainant and the agency against which the complaint was filed. (If exceptional circumstances exist with respect to a particular complaint, WDE may extend the period to 60 days.) Notification states that:

(i) the agency appears to have met each of the compliance responsibilities addressed by the complaint; the complainant has a right to request that the U.S. Secretary of Education review the decision; or

(ii) the agency has failed to meet one or more of the compliance responsibilities addressed in the complaint and must submit within 30 work days a corrective action plan to eliminate the compliance deficiencies (see Section 3).

(A) Upon acceptance of a corrective action plan from the agency, WDE notifies both parties.

(B) If an agency fails to correct deficiencies within one year, the State Superintendent initiates whatever enforcement action is necessary (see Section 3).

Section 5. Comprehensive System of Personnel Development (CSPD). WDE works cooperatively with preservice and graduate training programs to provide an adequate supply of qualified special educators and related service providers. WDE also provides inservice training opportunities to those who work with children with disabilities and disseminates information regarding promising practices, effective materials and methods for educating children with disabilities.

(a) Assessing Needs. Annually, WDE determines the number and types of personnel needed to serve children with disabilities and identifies preservice and inservice training needs of professionals, paraprofessionals, parents, and others who work with children with disabilities in Wyoming.

(b) Personnel Development Plan. Annually, WDE develops and makes available a plan which interfaces identified training needs with training resources and describes how training will be provided. All groups or individuals interested in preparing personnel to serve children with disabilities have an opportunity to participate in development, review and updating of the comprehensive plan for personnel development. The plan describes:

(i) the process used to determine training needs based on input from the needs assessment;

(ii) priority areas of emphasis for training based on broad-based multiple statewide sources of information, indicating for each area whether preservice or inservice training is needed;

(iii) priority groups of individuals, including regular/special educators, related service providers, administrators, support personnel, paraprofessionals, parents, surrogate parents, hearing officers, and volunteers;

(iv) the content and nature of training for each priority area and group;

(v) effective, promising, or innovative practices to be included in training activities;

(vi) local, state, regional, and national training resources;

(vii) the geographic scope of training activities;

(viii) funding sources to be used;

(ix) timelines for training events and activities;

(x) anticipated participation by individuals and public and private agencies;

(xi) incentives to ensure participation in training and retention of qualified personnel; and

(xii) strategies to recruit personnel, including persons from minority backgrounds and person with disabilities, as determined by public agency needs.

(c) Technical Assistance and Training. WDE ensures the provision of inservice, preservice, and technical assistance. To do this, WDE:

(i) facilitates ongoing professional development through information dissemination, development, and delivery of training events and activities, linking local agency personnel with available training opportunities, and supporting individuals’ participation in training activities;

(ii) facilitates preservice professional development through cooperative planning with the University of Wyoming College of Education and the Wyoming Community College System, and identification of preservice opportunities throughout Wyoming provided by non-Wyoming based colleges and universities; and

(iii) provides technical assistance to agencies based on requests for assistance and staff/consultant availability.

(d) Dissemination of Information and Promising Practices. WDE reviews and disseminates to personnel throughout Wyoming information about promising practices, demonstration program, research, and special projects.

(i) WDE disseminates information through WDE publications, training sessions, and demonstrations of instructional materials and methods.

(ii) WDE may initiate systems to adopt, where appropriate, promising educational practices and materials proven effective through research and demonstration.

(e) Monitoring and Evaluation. WDE monitors and evaluates CSPD activities by:

(i) periodically reassessing educational practices used in Wyoming;

(ii) annually, documenting appropriate certification, licensure or endorsement of individuals and agencies serving children with disabilities;

Section 6. Direct Services by WDE. WDE shall provide services to children with disabilities when an agency has not met its compliance responsibilities. WDE provides services:

(a) in the manner and location the State Superintendent considers appropriate; and

(b) either directly or through contractual arrangements.

Section 7. State Advisory Panel. The State Advisory Panel is appointed by the State Superintendent.

(a) Membership. Each member serves one three-year appointment. Membership includes, but is not limited to:

(i) individuals with disabilities;

(ii) teachers of children with disabilities;

(iii) parent(s) of children with disabilities;

(iv) state and local education officials;

(v) special education program administrators; and

(vi) university faculty responsible for professional preparation of special education teachers and related service providers.

(b) Functions. The Wyoming Advisory Panel:

(i) advises the State Superintendent of unmet needs within Wyoming concerning the education of children with disabilities;

(ii) comments publicly on:

(A) Wyoming’s submission of the State Plan required under provisions of Part B of IDEA; and

(B) proposed state rules and regulations regarding the education of children with disabilities and procedures for distribution of IDEA Part B funds;

(iii) assists WDE in developing and reporting information and evaluations to assist the U.S. Secretary of Education; and (iv) participates in development and implementation of Wyoming's Comprehensive System of Personnel Development.

(c) Procedures. The Wyoming Advisory Panel:

(i) meets as often as necessary to conduct business.

(ii) Submits to WDE, July 1 of each year, an annual report of State Advisory Panel activities and suggestions; WDE makes the report available for dissemination to the public on request;

(iii) ensures that official minutes of State Advisory Panel meetings are maintained and made available to the public upon request;

(iv) publicly announces all State Advisory Panel sessions and ensures that meetings are open to the public; and

(v) provides interpreters and other necessary services at panel meetings for panel members or participants.

(d) State Advisory Panel Members serve without compensation, but WDE reimburses panel members for reasonable and necessary expenses incurred in attending meetings and performing duties.

Section 8. Interagency Agreements. WDE establishes interagency agreements with other agencies that provide or pay for services to children with disabilities. Each interagency agreement describes:

(a) responsibilities each agency assumes in providing or paying for services required for children with disabilities;

(b) financial responsibility of each agency for providing FAPE for children with disabilities;

(c) procedures for resolving interagency disputes among agencies that are parties to the agreement; and

(d) procedures under which LEAs or the IEU may secure reimbursement, if appropriate, from agencies that are parties to the agreement.

Responsibilities of Public Agencies

Section 9. Agency Policies and Procedures. Each LEA and IEU serving children with disabilities establishes and files with the County Clerk policies and procedures for implementing these rules.

(a) Child Identification and Evaluation. Policies and procedures for Child Identification and evaluation include:

(i) identifying, locating and evaluating each child suspected of having a disability, birth through 21 years of age, who resides within the jurisdiction of the LEA or IEU;

(A) LEAs establish policies and procedures for identifying and locating each child ages birth through 21 years of age who is suspected of having a disability and for evaluating each child of public school age who is suspected of having a disability.

(B) The IEU establishes policies and procedures for evaluating each child ages birth through age five not enrolled in public school who is suspected of having a disability.

(ii) a strategy for increasing public awareness of the Child Identification process;

(iii) membership and responsibilities of Building Intervention Teams; and

(iv) making referrals for and conducting individual multidisciplinary evaluations and reevaluations.

(b) IEPs. Policies and procedures for the IEP process include:

(i) membership and responsibilities of IEP Teams;

(ii) determining eligibility for special education and related services, including extended school year services;

(iii) developing and annually reviewing and revising each child's IEP;

(iv) determining each child's placement in the least restrictive environment; and

(v) determining any differential high school graduation criteria, if required, for each child with a disability.

(c) Service Delivery. Policies and procedures for least restrictive environment and other areas of service delivery include:

(i) ensuring that children with disabilities have opportunities to participate in regular education programs;

(ii) ensuring that children with disabilities participate with non-disabled children in non-academic and extra-curricular activities to the extent appropriate for each child;

(iii) providing genuine opportunities for children with disabilities voluntarily enrolled in non-public schools located within the jurisdiction of the LEA or IEU to access special education programs and related services;

(iv) providing FAPE for every child with a disability enrolled in the LEA or IEU;

(v) specifying qualifications and duties of paraprofessionals;

(vi) ensuring the effective transfer of children among preschool, elementary, secondary and post-secondary programs;

(vii) cooperating at the inter and intra-agency level and interacting with community programs and service providers; and

(viii) identifying training, personnel, and facility needs through an annual needs assessment.

(d) Procedural Safeguards. Policies and procedures for procedural safeguards include:

(i) recruiting, training, and appointing surrogate parents;

(ii) obtaining written parental consent prior to an initial multidisciplinary evaluation, initial placement of a child with a disability in a special education program, or release of personally identifiable information;

(iii) releasing personally identifiable information without parental consent to a receiving public agency in accordance with Federal Regulations;

(iv) providing written notice to parent(s) of IEP meetings or when a proposal is made to change the identification, evaluation, or placement of their child;

(v) taking steps to ensure the protection and confidentiality of personally identifiable information and for maintaining children’s education records;

(vi) obtaining an independent evaluation of a child upon parental request; and

(vii) requesting a due process hearing and filing a complaint.

Section 10. Agency Reporting Procedures. Each LEA and IEU providing services to children with disabilities meets the following fiscal and program reporting requirements.

(a) Contracted Service Report. Quarterly, each LEA reports to WDE the agency’s anticipated expenditures for contracted services to be provided under these rules.

(b) Expenditures Report. By July 31 of each year, each LEA reports to WDE the actual special education expenditures for services rendered during the preceding fiscal year under these rules.

(c) Part B Report. Annually, each LEA and IEU receiving Part B funds submits an end of project report, including a final budget.

(d) Child Count Report. By December 15 of each year, each LEA and IEU submits to WDE a report of the number of children with disabilities identified and served on December 1 by the LEA or IEU. The report includes the eligibility classification and placement of each child. WDE verifies the total count submitted by each LEA and IEU.

(e) Service Report. By July 31 of each year, each LEA or IEU submits to WDE a report of the total number of children with disabilities served within the fiscal year.

Identification and Evaluation

Section 11. Child Identification System. WDE coordinates statewide planning and implementation of Wyoming Child Identification activities. Each public agency is responsible for planning and carrying out a local Child Identification system.

(a) Ongoing System. Each LEA and IEU establishes, implements and documents an ongoing system to identify, locate and evaluate each child suspected of having a disability, birth through age 21, who resides within the jurisdiction of the LEA or IEU, including any child in a public or private residential facility.

(i) LEAs identify and locate all children suspected of having disabilities ages birth through 21 years of age. Identification begins with a referral to the Child Identification Coordinator or the Building Intervention Team (see Section 12). Referral may include information from the following screenings conducted under W.S. 21-13-309e:

(A) hearing, vision and/or speech/language screenings; and/or

(B) screenings for children entering kindergarten or the public school system for the first time.

(ii) LEA’s evaluate each school age child who is suspected of having a disability.

(iii) The IEU evaluates each child from birth through age five not enrolled in public school who is suspected of having a disability.

(b) Coordinator. Each LEA and IEU appoints a Child Identification Coordinator. The coordinator develops and implements an ongoing system to locate, identify and evaluate children suspected of having disabilities who are not currently enrolled in public school education programs and who meet program age and residency requirements. This ongoing system includes:

(i) a plan for conducting an intensive public awareness campaign using a variety of information techniques and media to inform the public of the nature of disabilities, rights and services (including Child Identification activities) available to children with disabilities and procedures for contacting appropriate agencies for information;

(ii) a process for receiving and sending forward referrals from individuals or agencies; and

(iii) a mechanism for collecting, maintaining and reporting current and accurate data on child identification activities, and evaluating overall success and effectiveness of the agency’s Child Identification process.

Section 12. Building Intervention Team. Each LEA establishes, in each building, a Building Intervention Team. The IEU establishes, in each attendance center, a Building Intervention Team.

(a) Functions. At a minimum, the Building Intervention Team:

(i) receives referrals;

(ii) directs, evaluates, and documents pre-referral intervention efforts for children referred to the Building Intervention Team;

(iii) ensures that hearing and vision screenings have been conducted within the past 12 months; and

(A) Hearing screening must include, at least, tests for acuity and otologic problems.

(B) Vision screening must include, at least, tests for acuity and color blindness.

(iv) refers children suspected of having disabilities for individual multidisciplinary evaluation. Failure of vision or hearing screening must not delay referral the multidisciplinary evaluation.

(b) Membership. The composition of the Building Intervention Team will vary according to the needs of the individual child. At a minimum:

(i) for an LEA, a Building Intervention Team includes at least two certified regular education staff members assigned to the school, and the school principal, one of whom serves as chairperson;

(ii) for the IEU, a Building Intervention Team includes at least two certified staff members and the preschool administrator, one of whom serves as chairperson; and

(iii) the principal, the preschool administrator, or designee ensures that a member of the committee or the child’s teacher communicate with each child’s parent(s) and documents the communication. Communication includes information about the Building Intervention process and the interventions.

Section 13. Referral for Multidisciplinary Evaluation. All referrals for multidisciplinary evaluation come through the Building Intervention Team. Referral to the Building Intervention Team must not delay referral for a multidisciplinary evaluation. When the team refers a child for multidisciplinary evaluation, the principal, preschool administrator, or designee provides written notice to the parents within five work days. The notice meets requirements of Section 40.

(a) Team Referral. When the Building Intervention Team agrees that pre-referral interventions have been implemented and found unsuccessful and suspects that a child has a disability, the team refers the child for individual multidisciplinary evaluation.

(b) Immediate Referral. Referral to the Building Intervention Team must not delay referral for a multidisciplinary evaluation. The Building Intervention Team may refer a child immediately for multidisciplinary evaluation if:

(i) the child is new to the district or pre-school program, the child’s records are incomplete or unavailable and/or the child’s problems are so severe that intervention in a regular environment would be inappropriate; or

(ii) the child’s only presenting problem is an articulation problem; or

(iii) the child is a preschool child who fails pre-school screening (excluding kindergarten screening).

Section 14. Multidisciplinary Evaluation Procedures. An individual multidisciplinary evaluation is completed for each child referred.

(a) Case Manager Duties. Within ten work days of receiving a referral for multidisciplinary evaluation, the Special Education Director, preschool administrator, or designee appoints a case manager who:

(i) selects the people who will conduct multidisciplinary evaluations;

(ii) ensures that the agency obtains written parental consent prior to initial evaluation (If a parent refuses consent, the agency may initiate a hearing under Section 33.);

(iii) ensures development and implementation of an individually tailored multidisciplinary evaluation plan for each child;

(iv) ensures preparation and review of a written integrated multidisciplinary evaluation report for each child;

(v) sends each child’s completed multidisciplinary evaluation report to the agency’s Special Education Director, preschool administrator, or designee no later than 45 work days after receipt of written parental consent for evaluation.

(vi) ensures that information collected during evaluation, (the child’s integrated multidisciplinary evaluation report, individual evaluator reports, and test booklets) is considered part of the child’s education records and maintained in accordance with confidentiality requirements.

(b) Multidisciplinary Evaluation Plans. Each written multidisciplinary evaluation plan includes:

(i) a description of evaluation procedures which will provide the IEP Team information needed to determine eligibility based on the criteria of these rules and help the team plan an IEP for the child, if needed;

(ii) a description of multiple evaluation procedures to determine the child’s current level of performance in each area of concern (See Section 15); a single test or single general intelligence quotient does not constitute a multiple evaluation procedure.

(iii) hearing and vision evaluation for any child when screening results indicate potential hearing and/or vision problems.

(iv) the names of people responsible for conducting each evaluation procedure.

(c) Multidisciplinary Evaluators. Individual multidisciplinary evaluation includes evaluations by at least:

(i) person(s) knowledgeable in each area of suspected disability;

(ii) person(s) qualified to administer each test or instrument or procedure included in the child’s multidisciplinary evaluation plan;

(iii) person(s) familiar with the child’s background and how that background affects the evaluation process or its results;

(iv) persons from two or more separate disciplines (one of whom may be a teacher); and

(v) the child’s current regular education teacher or primary caregiver. If the child does not currently have a regular education teacher, one evaluator is a regular education teacher or primary caregiver of children of comparable chronological age.

(d) Evaluator Responsibilities. Each evaluator carries out evaluations which are:

(i) appropriate for the individual child:

(A) necessary for determining the nature and extent of the suspected disability or for developing the child’s IEP;

(B) appropriate for the age and developmental level of the child; and

(C) tailored to evaluate specific areas of educational need and not merely designed to provide a single general intelligence quotient.

(ii) valid and reliable:

(A) validated for the specific purpose for which the test, subtest or procedure is used;

(B) administered by trained personnel in conformance with instructions provided by the publisher;

(C) selected for and administered to a child with impaired sensory, manual or speaking skills so that evaluation results accurately reflect the child’s aptitude or achievement level (or other factors the procedure claims to measure) rather than the child’s impaired sensory, manual or speaking skills (except where those skills are the factors which the procedure claims to measure);

(D) written and administered in the child’s native language or conducted in the mode of communication familiar to the child, following instructions for administering the procedure;

(E) not racially, culturally, or sexually discriminatory; and

(F) measure intellectual functioning through standardized individual test(s). Group intelligence tests may not be used to establish eligibility.

(iii) accurately interpreted:

(A) by person(s) competent to determine the impact of suspected racial, cultural or sexual bias of evaluation procedures; and

(B) in a manner which accurately reflects the child’s aptitude or achievement rather than level of sensory, manual, or speaking impairment.

(e) Multidisciplinary Evaluation Report. Each written integrated multidisciplinary evaluation report synthesizes referral information and findings of the individual evaluations conducted. Each integrated report, written to be useful to the IEP Team and understood by the child’s parent(s), contains at least:

(i) background information:

(A) the child’s name, age, date of birth, and grade;

(B) the date and reason(s) for referral of the child; and

(C) the person or agency who referred the child.

(ii) description of evaluation procedures:

(A) evaluations administered, procedures used and the date of each activity listed in the child’s multidisciplinary evaluation plan;

(B) the names and positions of people who conducted evaluations; and

(C) information about evaluation procedures, including a rationale for any abbreviated evaluation procedures.

(iii) summary of evaluation results, including:

(A) a description of the child’s present levels of performance in each area of concern, including, as appropriate, academic performance, communication skills, social and emotional behavior, general intellectual ability, and physical abilities (vision, hearing, motor skills and health);

(B) a statement that, in the evaluators’ professional opinions, evaluation results reflect the child’s current level of functioning and not merely the child’s performance on the day of testing;

(C) a description of any discrepancies among formal test results or between test results and available performance information concerning the child;

(D) a statement concerning the effects of environmental, cultural, or economic disadvantages;

(E) a description of any relevant medical findings; and

(F) a statement that the child’s performance meets or does not meet eligibility criteria in one or more disability categories.

(iv) recommendations regarding:

(A) instructional techniques, modifications, adaptations, equipment and classroom behavior management strategies which might improve the child’s educational performance; and

(B) any other information to assist the IEP Team in determining if the child has a disability and in developing an IEP.

(v) an assurance in writing that each evaluator had an opportunity to verify information contained in the report and that the report accurately reflects each evaluator’s conclusions. If an evaluator disagrees with any aspect of the report, a signed dissenting opinion stating areas of disagreement, reasons for the disagreement and information supporting the dissenting view is appended to the report prior to the IEP meeting. When the integrated report is presented at the IEP meeting, the dissenting view is reviewed and recorded in the minutes.

Section 15. General Evaluation Requirements. Evaluation of a child suspected of having a disability includes a variety of procedures deemed appropriate by the case manager and multidisciplinary evaluators.

(a) Depending upon concerns about the child and the child’s suspected disability, procedures may include evaluation in the following areas (see Section 16 for clarification of required evaluation procedures for different types of disabilities):

(i) academic or pre-academic performance;

(ii) adaptive behavior (includes daily living skills);

(iii) career/vocational status;

(iv) communication skills;

(v) gross/fine motor skills;

(vi) information from the parent(s) and/or child;

(vii) intellectual functioning;

(viii) physical, health or medical status;

(ix) social/emotional status;

(x) the child’s performance in a regular classroom or regular environment (see Section 16 (h) for details regarding observation of children suspected of having a learning disability).

(xi) vision and/or hearing;

(b) For each category of disability, evaluation results must confirm that the child’s problem adversely affects his/her educational performance and that the child needs of special education.

(c) Persons who carry out evaluation procedures must meet state certification or licensing requirements for the area in which they are conducting the evaluation.

Section 16. Disability Categories. WDE requires specific evaluation procedures, eligibility criteria, reevaluation procedures and continuing eligibility criteria for each category of disability.

(a) Information for specific disabilities is presented in this section in alphabetical order by category of disability:

(i) autistic disability;

(ii) deaf-blind disability;

(iii) developmental disability;

(iv) emotional disability;

(v) health disability;

(vi) hearing disability;

(vii) learning disability;

(viii) mental disability;

(ix) orthopedic disability;

(x) speech/language disability;

(xi) traumatic brain injury disability;

(xii) visual disability.

(b) Autistic Disability: a disorder which significantly affects verbal and non-verbal communication and social interaction, generally evident before age three, and adversely affects educational performance; Characteristics of autism include irregularities and impairments in communication, engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a child’s educational performance is adversely affected primarily because the child has a serious emotional distur- bance.

(i) Autistic Disability Initial Evaluation Procedures. In addition to the requirements of Section 15, the multidisciplinary evaluation plan for a child suspected of being autistic includes at least:

(A) evaluation and observation of behaviors in a variety of settings, at least one of which is school-related, including:

(I) evaluation of the child’s ability to communicate;

(II) social participation and capacity to relate to people, events and objects;

(III) observation and documentation of the child’s response patterns to sensory stimuli (sight, hearing, touch, pain, balance, smell, taste, and/or body positioning);

(IV) cognitive, academic (or pre-academic), and adaptive functioning; and

(V) observation and documentation of the child’s activities and interests including stereotypical and/or repetitive response patterns, abnormal attachment to objects, and/or resistance to change.

(B) evaluation of the child’s behavior conducted by a licensed clinical psychologist, school psychologist, or psychiatrist; and

(C) an interview with the parent(s) to determine the impact of social, educational, cultural, developmental, and health factors on the child.

(ii) Autistic Disability Initial Eligibility Criteria. Criteria A through F are required.

(A) Impaired communication. The child is unable to use expressive and receptive language for social communication in a developmentally appropriate manner; lacks nonverbal communication skills or uses abnormal nonverbal communication; uses abnormal form or content when speaking and/or is unable to initiate or sustain conversation with others.

(B) Inappropriate relationships. The child exhibits deficits relating to people, marked lack of awareness of other’s feelings, abnormal seeking of comfort at times of distress, absent or abnormal social play, and/or inability to make friends. The child does not relate to or use objects in an age appropriate or functional manner.

(C) Abnormal sensory processing. The child exhibits unusual, repetitive, non-meaningful responses to auditory, visual, olfactory, taste, tactile, and/or kinesthetic stimuli.

(D) Impaired cognitive development. The child has difficulty with concrete versus abstract thinking, awareness, judgment, and/or the ability to generalize. The child may exhibit perseverative thinking or impaired ability to process symbolic information.

(E) Abnormal range of activities. The child shows a restricted repertoire of activities, interests, and imaginative development evident through stereotyped body movements, persistent preoccupation with parts of objects, distress over trivial changes in the environment, unreasonable insistence on routines, restricted range of interests, or preoccupation with one narrow interest.

(F) Only a licensed clinical psychologist, school psychologist, or psychiatrist qualified to diagnose autism may diagnose the child autistic; accompanied by a report with recommendations for instruction.

(iii) Autistic Disability Reevaluation Criteria. The reevaluation plan for a child with an autistic disability includes all initial evaluation procedures.

(iv) Autistic Disability Continuing Eligibility Criteria. A child continues to qualify for special education if reevaluation indicates that the child meets initial eligibility criteria.

(c) Deaf-Blind Disability: concurrent hearing and vision impairments, the combination of which cause severe communication, developmental, and educational problems.

(i) Deaf-blind Disability Initial Evaluation Procedures. In addition to the requirements of Section 15, the multidisciplinary evaluation plan for a child suspected of being deaf-blind includes at least A through D. Multidisciplinary evaluators may use a child’s special equipment or augmentive communication devices during evaluation.)

(A) hearing evaluation procedures as listed for a hearing disability (see g, Hearing Disability);

(B) vision evaluation procedures as listed for a visual disability (see m, Visual Disability);

(C) evaluation of the child’s current level of motor functioning, communication, self-help/adaptive skills, social skills, and/or pre-academic or academic skills; and

(D) review of child’s medical history, including a physician’s report of special health problems, medication, or long term medical prognosis.

(ii) Deaf-blind Disability Initial Eligibility Criteria. Criteria A through C are required.

(A) Hearing eligibility criteria as listed for a hearing disability (see g, Hearing Disability);

(B) Vision eligibility criteria as listed for a visual disability (see m, Vision Disability); and

(C) The child’s current level of performance indicates significant problems with motor functioning, communication, self-help/adaptive skills, social skills, and/or pre-academic, or academic skills.

(iii) Deaf-blind Disability Reevaluation Procedures. The reevaluation plan for a child who is deaf-blind includes all initial evaluation procedures.

(iv) Deaf-blind Disability Continuing Eligibility Criteria. A child continues to qualify for special education if reevaluation indicates that the child meets initial eligibility criteria.

(d) Developmental Disability: a significant delay in cognitive, social/emotional, communication, motor, or adaptive development that adversely affects the child’s performance. Developmental disability is a category available to children ages three until the child enrolls in a public school program, who do not qualify in other categories, but meet the developmental disability criteria.

Prior to or upon a preschool child’s registration for a public school program, the IEU is responsible for assuring reevaluation which shows whether or not the child is eligible in one of the other disability categories.

(i) Developmental Disability Initial Evaluation Procedures. In addition to the requirements of Section 15, the multidisciplinary evaluation plan for a preschool child suspected of being developmentally disabled includes at least:

(A) evaluation of the child’s performance in the area(s) of concern (cognitive, social/emotional, communication, motor, or adaptive functioning) using one or more standardized evaluation instruments;

(B) evaluation of pre-academic skills;

(C) evaluation of delayed or atypical cognitive, social/emotional, communication, motor, or adaptive behavior development through specific assessments or observation; and

(D) an interview with the child’s parent(s) to determine the impact of social, cultural, developmental, and health factors on the child.

(ii) Developmental Disability Initial Eligibility Criteria: Criteria A and C or B and C are required.

(A) The child’s performance is significantly below the mean (two or more standard deviations) performance expected of children of comparable chronological age in one area (cognitive, social/emotional, communication, motor, or adaptive functioning);

(B) The child’s performance is markedly (1.5 standard deviations) below the mean performance expected of children of comparable chronological age in two or more areas (cognitive, social/emotional, communication, motor, or adaptive functioning); and

(C) Confirmation of a developmental delay through observation data and information obtained from the child’s parent(s), teachers, and/or primary caregiver(s).

(iii) Developmental Disability Reevaluation Criteria. Developmental disability is a category for preschool children. To receive special education and related services in public school programs, a child must be eligible in one of the other disability categories.

Prior to or upon a preschool child's registration for a public school program (or private program for school age children), the IEU is responsible for assuring reevaluation which shows whether or not the child is eligible for special education in one of the other disability categories. The reevaluation plan for a child with a preschool developmental disability must include initial evaluation procedures in the suspected area of disability.

(iv) Developmental Disability Continuing Eligibility Criteria. A preschool child continues to qualify for special education if evaluation shows that the preschool child meets developmental disability initial eligibility criteria and is not enrolled in a public school program.

(e) Emotional Disability: behavioral or emotional responses which are so different from appropriate age, cultural or ethnic norms that the responses adversely affect the child's educational performance. The child exhibits these responses over an extended period of time in several settings, at least one of which is school-related. A child may have an emotional disability concurrently with other disabilities. Emotional disability includes schizophrenic disorders; it does not include a child who is socially maladjusted unless the child also meets the emotional disability eligibility criteria.

(i) Emotional Disability Initial Evaluation Procedures. In addition to the requirements of Section 15, the multidisciplinary evaluation plan for a child suspected of having an emotional disability includes at least:

(A) documentation of observations by at least two professionals and analysis of behavior patterns over an extended period of time in a variety of settings, at least one of which is school-related, which describe relationships between the child's behavior/emotional responses and educational performance. This includes analysis of the child's:

(I) ability to build and maintain interpersonal relationships with peers and teachers;

(II) ability to learn;

(III) behavior or feelings under normal circumstances;

(IV) general emotional status (e.g. unhappiness or depression);

(V) physical symptoms, pain or fear associated with personal or school problems.

(B) evaluation of the child's educational performance, including academic, social, vocational and/or personal skills;

(C) evaluation of the child's behavior and emotional status, conducted by a licensed clinical psychologist, school psychologist, or psychiatrist;

(D) an interview in which the child’s teacher describes behaviors which interfere with the child’s education and attempted interventions; and

(E) an interview with the child and the child’s parent(s) to determine if the problem behavior(s) occur(s) in environments outside of school, and if so, when, where, and under what circumstances such behavior(s) occur(s). In addition, the interviews may address such factors as:

(I) the parent(s) expectations for the child in the home and school environment;

(II) the parent(s) perceptions of the problem behavior(s);

(III) the parent(s) efforts to deal with the problem behavior(s) at home and/or through community agencies;

(IV) the impact of social, cultural, emotional, health, and/or family factors on the problem behavior(s); and/or

(V) a description of the child’s self concept and relationships with peers and siblings.

(F) a review of services currently or previously provided by other agencies.

(ii) Emotional Disability Initial Eligibility Criteria. Criteria A, B, and C are required.

(A) Despite regular education interventions to modify behaviors, evidence shows the child continues to exhibit behavioral or emotional responses in school programs so different from appropriate age, cultural, or ethnic norms that the responses adversely affect educational performance, including academic, social, vocational, and/or personal social areas;

(i) inability to build and maintain interpersonal relationships with peers and teachers; and/or

(ii) inappropriate types of behaviors or feelings under normal circumstances; and/or

(iii) a general mood of unhappiness or depression;

(iv) a tendency to develop physical symptoms, pain or fears associated with personal or school problems; and/or

(v) more than a temporary, expected response to stressful events in the environment.

(B) Persistent, consistent, and chronic inappropriate behavior or emotional responses in a variety of settings, at least one of which is school related;

(C) Patterns of behavior which cannot be attributed primarily to physical, sensory, or intellectual deficits.

(iii) Emotional Disability Reevaluation Procedures. The reevaluation plan for a child with an emotional disability includes all of the initial evaluation procedures.

(iv) Emotional Disability Continuing Eligibility Criteria. A child continues to qualify for special education and related services if reevaluation indicates that the child meets initial eligibility criteria.

(f) Health Disability: A chronic or acute health problem (such as asthma, epilepsy, juvenile diabetes mellitus, hemophilia, cystic fibrosis, sickle cell anemia, cardiac conditions, cancer, fetal alcohol syndrome, or AIDS) which adversely affect educational performance and substantially limits a child's major life activities (such as walking, speaking, and learning) or limits a child's strength, vitality, or alertness.

(i) Health Disability Initial Evaluation Procedures. In addition to the requirements of Section 15, the multidisciplinary evaluation plan for a child suspected of having a health disability includes at least:

(A) evaluation of pre-academic or academic skills;

(B) evaluation of the child's motor functioning, strength, vitality, and/or alertness;

(C) a signed, written report of a medical examination conducted by a physician within the previous 12 months. The report should include a description of the child's health disability and any medical implications or recommendations for instruction, physical education or specially designed physical education, physical therapy, occupational therapy, and or special equipment; and

(D) an interview with the parent(s) to determine the impact of the health impairment in the child's daily living.

(ii) Health Disability Initial Eligibility Criteria. Criteria A and B or A and C are required.

(A) Physician verification of an acute or chronic health problem; and

(B) Educational performance is adversely affected due to acute or chronic limited strength, vitality, or alertness; and

(C) Major life activities are substantially limited.

(iii) Health Disability Reevaluation Procedures. The reevaluation plan for a child with a health disability includes all initial evaluation procedures.

(iv) Health Disability Continuing Eligibility Criteria. A child continues to qualify for special education if reevaluation indicates that the child meets initial eligibility criteria.

(g) Hearing Disability: an inability to hear, ranging in severity from mild to profound which adversely affects educational performance. This category includes deaf and hearing impaired children.

(i) Hearing Disability Initial Evaluation Procedures. In addition to the requirements of Section 15, the multidisciplinary evaluation plan for a child suspected of having a hearing disability includes at least:

(A) diagnostic audiological evaluation (with amplification when appropriate) by an audiologist. The audiologist’s written report includes:

(I) a description of the degree of hearing loss and auditory discrimination skills in quiet and noise;

(II) a description of the type of hearing disability;

(III) medical follow-up recommendations; and

(IV) any recommendations regarding educational and environmental adjustments needed, including seating arrangements, modifications of listening/learning environment and ongoing habilitation/rehabilitation.

(B) evaluation of the child’s degree of hearing loss, method of communication, social and pre-academic, or academic functioning by a teacher of the hearing impaired or a person trained to assess these areas for hearing disabled children;

(C) an interview with the parent(s).

(ii) Hearing Disability Initial Eligibility Criteria. Criteria A and B, A and C, or A and D are required.

(A) Hearing difficulties adversely affect the child’s educational performance;

(B) The child fails to respond in either ear to pure tone stimuli at 20 decibels in the speech range. (1000 Hz, 2000 Hz, or 4000 Hz);

(C) Impedance measures in either ear are greater than -200 mmH20, or +100 mmH20 middle ear pressure, or the child exhibits an abnormal tympanogram on at least two occasions;

(D) Middle ear function cannot be measured but the child is functionally deaf.

(iii) Hearing Disability Reevaluation Procedures. The reevaluation plan for a child with a hearing disability includes all initial evaluation procedures.

(iv) Hearing Disability Continuing Eligibility Criteria. A child continues to qualify for special education if reevaluation indicates that the child meets initial eligibility criteria.

(h) Learning Disability: a disorder in one or more of the basic psychological processes involved in understanding or using spoken or written language which adversely affects educational performance.

Learning Disability may include perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia when the child meets Learning Disability eligibility criteria. Although a learning disability may exist concurrently with other disabilities, Learning Disability does not include children who have learning problems which are primarily the result of vision, hearing, orthopedic, mental, or emotional disabilities, or environmental, cultural, or economic disadvantage. Learning Disability is a disability category for school-age children only.

(i) Learning Disability Initial Evaluation Procedures. In addition to the requirements of Section 15, the multidisciplinary evaluation plan for a child suspected of having a learning disability includes at least:

(A) review of classroom performance and work samples;

(B) evaluation of academic performance on an individual standardized achievement measure;

(C) classroom observation and a record of relevant information about the child’s classroom performance, conducted by one of the multidisciplinary evaluators other than the child’s regular education teacher;

(D) evaluation of intellectual functioning obtained from an individually administered instrument designed to measure intellectual functioning; and

(E) an interview with the parent(s) to determine the impact of social, cultural, developmental, emotional and/or health factors on the child’s difficulties.

(ii) Learning Disability Initial Eligibility Criteria. Criteria A through C and D or E are Required. To receive services in a specific area, (i.e. oral expression, listening comprehension, written expression, basic reading skills, reading comprehension, mathematical calculation, or mathematical reasoning), a child must qualify in that specific area.

(A) Evidence that after receiving support and remedial help in regular education specific to the child’s identified learning problem(s), the child’s learning is still significantly impaired;

(B) Assurance that the child’s learning problems are not primarily the result of visual, hearing, or motor disabilities, mental disability or emotional disability;

(C) Assurance that the child’s learning problems are not primarily the result of:

(I) inadequate instruction or curriculum for the child’s age and/or ability level;

(II) lack of educational opportunity;

(III) emotional stress at home or school;

(IV) a temporary crisis situation;

(V) environmental, cultural or economic disadvantages; or (VI) lack of motivation.

(D) Evidence of a severe discrepancy between achievement and ability;

(I) The child’s performance shows a severe discrepancy between expected achievement (derived from a measure of intellectual ability) and obtained achievement (derived from a standard achievement measure) in one or more of the following areas: oral expression, listening comprehension, written expression, basic reading skills, reading comprehension, mathematical calculation, or mathematical reasoning.

(II) A severe discrepancy exists when application of WDE formula results in a difference between achievement and ability which meets or exceeds 1.5 standard deviations (see Appendix B).

(E) If the WDE formula does not yield a number which reflects a severe discrepancy and the IEP Team believes the child has a specific learning disability, the public agency may use the following override procedure:

(I) the public agency documents in writing that the WDE formula has been used, has been determined to be inappropriate, and explains why the formula is inappropriate in the immediate case;

(II) If a child does not meet the criterion for a severe discrepancy, yet the IEP team nonetheless determines the child is learning disabled, the public agency writes a specific justification for such a decision, including the basis for concluding that a severe discrepancy exists, documentation of the child’s inability to progress adequately in one or more basic academic areas in the regular class setting, and other related information.

(iii) Learning Disability Reevaluation Procedures. The reevaluation plan for a child with a learning disability includes all initial evaluation procedures.

(iv) Learning Disability Continuing Eligibility Criteria. A child continues to qualify for special education when:

(A) application of WDE formula yields a number indicating a discrepancy between ability and achievement which meets or exceeds 1.0 standard deviations; or

(B) the child qualifies under the override procedure.

(i) Mental Disability: significantly sub-average general intellectual functioning existing concurrently with deficits in adaptive behavior, manifested during the developmental period, which adversely affects educational performance.

(i) Mental Disability Initial Evaluation Procedures. In addition to the requirements of Section 15, the multidisciplinary evaluation plan for a child suspected of being mentally disabled includes at least:

(A) evaluation of intellectual functioning, using one or more individually administered instruments designed to measure intellectual functioning; (B) evaluation of academic or pre-academic skills;

(C) evaluation of adaptive behavior;

(D) evaluation of language development and/or communication skills;

(E) an interview with the parent(s) to determine the impact of social, educational, cultural, developmental, and health factors on the child;

(F) observation of the child’s school and social behaviors in daily activities; and

(G) if deemed appropriate by the case manager, a signed, written report of a medical examination for educational planning and programming.

(ii) Mental Disability Initial Eligibility Criteria. Criteria A, B, and C are required:

(A) evidence that the child’s intellectual functioning is two or more standard deviations below the mean, taking into consideration the standard error of measurement. The child’s profile of intellectual functioning indicates sub-average performance in a majority of areas.

(B) evidence on an individually administered test of academic or pre-academic skills is consistent with performance expected of a child of comparable intellectual functioning. Behavioral observations or criterion referenced tests may be used when a child’s level of functioning cannot be appropriately measured by standardized tests.

(C) evidence that the child’s level of adaptive behavior is significantly below behaviors expected of a child his/her age.

(iii) Mental Disability Reevaluation Procedures. The reevaluation plan for a mentally disabled child includes evaluation of the child’s intellectual functioning, academic or pre-academic performance and adaptive behavior.

(iv) Mental Disability Continuing Eligibility Criteria. A child continues to qualify for special education when:

(A) each of the first two reevaluations of a child with a mental disability confirm that the child meets all three initial eligibility requirements; and

(B) the third and subsequent reevaluations of a child with a mental disability confirm that the child meets initial eligibility requirements for sub-average academic or pre-academic performance and for deficit adaptive behavior. A measure of intellectual functioning is not required.

(j) Orthopedic Disability: a severe orthopedic impairment (to bone, muscle, or joint) which adversely affects a child’s educational performance. This includes impairments caused by birth defects, disease or unknown causes (such as cerebral palsy, muscular dystrophy, juvenile rheumatoid arthritis, osteogenesis imperfecta, multiple sclerosis, osteomyelitis, missing limb, fractures, or burns that cause contractures, etc.).

(i) Orthopedic Disability Initial Evaluation Procedures. In addition to the requirements of Section 15, the multidisciplinary evaluation plan for a child suspected of being orthopedically disabled includes at least:

(A) evaluation of academic and pre-academic skills and motor skills;

(B) evaluation of the child’s orthopedic functioning by a physical or occupational therapist; and

(C) a signed, written report of a medical examination conducted by a physician within the previous 12 months. The report includes a description of the child’s orthopedic functioning and at the discretion of the physician any medical implications or recommendations for instruction, physical education or specially designed physical education, physical therapy, occupational therapy, and or special equipment.

(D) an interview with the parent(s) to determine the impact of the orthopedic impairment on the child.

(ii) Orthopedic Disability Initial Eligibility Criteria. Criteria A and B or A and C are required:

(A) evidence that the child’s impaired motor functioning significantly interferes with educational performance;

(B) evidence that the child exhibits deficits in muscular or neuromuscular functioning that significantly limits the child’s ability to move about, sit or manipulate materials required for learning;

(C) evidence that the child’s bone, joint or muscle problems affect ambulation, posture, or gross and fine motor skills.

(iii) Orthopedic Disability Reevaluation Procedures. The reevaluation plan for a child who has an orthopedic disability includes all initial evaluation procedures.

(iv) Orthopedic Disability Continuing Eligibility Criteria. A child continues to qualify for special education if reevaluation indicates that the child meets initial eligibility criteria.

(k) Speech/Language Disability: a communication disorder involving an impairment in articulation (may include phonology), fluency, language (may include phonology), or voice, which adversely affects a child’s educational performance. For specific definitions in each area of impairment, see eligibility criteria.

(i) Speech/Language Initial Evaluation Procedures. In addition to the requirements of Section 15, the multidisciplinary evaluation plan for a child suspected of having a speech/language disability includes at least:

(A) a written description of formal observation of the child’s language patterns, in a school setting or, for a preschool child, the environment in which the child spends a major part of the day by a licensed or certified speech/language pathologist; when deemed appropriate a teacher of the hearing disabled also submits a written description;

(B) for a child suspected of a language disability, evaluation of the child’s language development, measured by standardized receptive and/or expressive evaluation instruments;

(C) for a child suspected of language or fluency disabilities, analysis of a language sample;

(D) for a child suspected of voice disability, an examination by a physician, preferably one with training in otolaryngology; and

(E) if deemed appropriate by the case manager or multidisciplinary evaluators, a non-medical, oral-peripheral exam.

(ii) Speech/Language Initial Eligibility Criteria. In addition to observation by a speech pathologist or teacher that the child’s speech/language is significantly different from peers, the child must meet eligibility criteria in one of the following areas:

(A) Articulation Impairment. Articulation impairment means speech sound production or phonological errors atypical of a child of comparable age and development. Criteria I and V, criteria II through V or criteria VI and VII are required:

(I) evidence that the child exhibits one or more errors of speech sound production beyond the age at which 80% of peers have achieved mastery (based on current developmental norms);

(II) evidence that the child’s performance on a standardized evaluation instrument indicates the presence of significant impairment;

(III) evidence that the child misarticulates sounds consistently in a representative speech sample;

(IV) evidence that the child is under the specified age on current norms and is not stimulable on the error sounds; and

(V) evidence that the child’s articulation errors cannot be attributed to dialect or cultural differences or the influence of a foreign language.

(VI) evidence that the child’s speech is highly unintelligible; and (VII) evidence that the child’s scores are at a moderate, severe or profound rating on phonological evaluation instruments.

(B) Fluency Impairment. Fluency impairment means abnormal flow of speech evident in interruptions by repetitions or prolongations of sounds, syllables or articulary positions or by avoidance and struggle behaviors. Criteria I or II is required:

(I) evidence that the child demonstrates at least a mild rating or its equivalent on a formal fluency rating scale; or

(II) evidence that the child exhibits stuttering on 5% or more of words spoken in a representative language sample.

(C) Language Impairment. Language impairment means a deficiency in language comprehension or production evident in the content, form, or use of oral communication or its equivalent. This may include phonological problems. Criteria I through III or criteria I, IV, and V are required:

(I) evidence that the child understands and uses morphologic, syntactic, semantic, or pragmatic patterns that fall below or are different from those expected, considering the child’s chronological age, developmental and cognitive level, evident in a representative oral language sample of at least five minutes or a minimum of fifty utterances;

(II) evidence that the child’s language patterns cannot be attributed to dialectal or cultural differences or the influence of a foreign language; and

(III) evidence that when standardized instruments are appropriate, the child’s performance falls below 12th percentile on a standardized measure related to the problems identified in the language sample; or

(IV) evidence that the child’s speech is highly unintelligible; and

(V) evidence that the child’s scores are at a moderate, severe or profound rating on phonological evaluation instruments.

(D) Voice Impairment. Voice impairment means a significant deviation in pitch, intensity, or quality which consistently interferes with communication, draws unfavorable attention, adversely affects the speaker or listener(s), or is inappropriate for the age, sex, or culture of the child. Criteria I through III are required:

(I) evidence that the child exhibits abnormal voice quality, pitch, resonance, loudness, or duration;

(II) evidence that the condition is evident on two separate occasions, two weeks apart, at different times of day; and

(III) evidence that there are no medical contraindications to therapy, determined by a physician (the physician may determine if a contraindication exists or refer the child for a special examination).

(iii) Speech/Language Reevaluation Procedures. The reevaluation plan for a child with a speech/language disability includes all initial evaluation procedures.

(iv) Speech/Language Continuing Eligibility Criteria. A child continues to qualify for special education if, in addition to observation by a speech/language pathologist or teacher that the child’s speech or language continues to be different from peers, and the child meets initial eligibility requirements in one or more speech/language areas. The exception is continuing eligibility criteria for language disabilities, in which case the child’s performance on a standard instrument is at or below the 16th percentile.

(l) Traumatic Brain Injury Disability: 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. The term applies to open or closed head injuries resulting in impairments in one or more areas, such as cognition; language; memory; attention; reasoning; abstract thinking; judgment problem-solving; sensory, perceptual and motor abilities; psychosocial behavior; physical functions information processing; and speech. The term does not apply to brain injuries that are congenial or degenerative, or brain injuries induced by birth trauma.

(i) Traumatic Brain Injury Disability Evaluation Procedures. In addition to the requirements of Section 15, the multidisciplinary evaluation plan for a child suspected of having a traumatic brain injury includes A, and as appropriate, B - H.

(A) a signed, written report of a medical examination conducted by a licensed physician within the previous 12 months (including a neural specialist if seen). The report includes a description of any medical implications or recommendations for instruction, physical education or specially designed physical education, physical therapy, occupational therapy, special equipment, or assistive technology devices;

(B) a medical developmental history;

(C) evaluation of the child’s cognitive and information processing strengths and deficits, including academic performance;

(D) evaluation of the child’s behavior/emotional status;

(E) evaluation of the child’s adaptive skills, including self-help skills;

(F) evaluation of the child’s physical ability, including gross and fine motor skills, and/or physical needs;

(G) evaluation of the child’s vision and hearing; and/or

(H) evaluation of communication skills.

(ii) Traumatic Brain Injury Disability Initial Eligibility Criteria. Criteria A and B are required.

(A) medical report from a physician and/or neural specialist, indicating that the child has sustained:

(I) a brain trauma (e.g. skull fracture, cerebral vascular accident, contusions, and/or bullet wound, etc.) resulting in the onset of impairment, or

(II) a change in cognitive ability due to change in medical status (tumor and/or encephalitis, etc.); and

(B) Evidence that the traumatic brain injury adversely affects the child's educational performance in one or more of the following areas: cognitive ability, social behavior, use of adaptive skills, physical ability, vision hearing, and/or ability to communicate.

(iii) Traumatic Brain Injury Disability Reevaluation Procedures. Formal three-year reevaluation procedures are the same as initial evaluation procedures. However, the IEP Team reconvenes at least annually to reassess goals/objectives and services. Teams may meet more frequently to review a child's progress, because of the dynamic nature of traumatic brain injury.

(iv) Traumatic Brain Injury Disability Continuing Eligibility Criteria. A child continues to qualify for special education if reevaluation indicates that the child continues to exhibit impaired cognitive functioning, physical ability, communication and/or social interaction which adversely affects education performance.

(m) Visual Disability: a visual impairment which, even with correction, adversely affects a child's educational performance. The term includes both blind and partially sighted children.

(i) Visual Disability Initial Evaluation Procedures. In addition to the requirements of Section 15, the multidisciplinary evaluation plan for a child suspected of being visually disabled includes at least:

(A) evaluation within the previous 12 months by a licensed ophthalmologist or optometrist, documented by a signed written report which verifies that the child has a visual disability, describes the degree of vision with and without correction, provides a prognosis in terms of visual functioning and summarizes information concerning the child's vision which might help the IEP Team;

(B) evaluation of the child's mobility and independent functioning and needs by a teacher of the visually disabled or a person trained to assess mobility; and

(C) an interview with the parent(s) to determine the impact of the visual impairment on the child's daily living.

(ii) Visual Disability Initial Eligibility Criteria. Criteria A and one of the following: B through F are required:

(A) evidence of loss of vision which significantly interferes with the child's ability to perform pre-academically or academically and requires the use of specialized texts, techniques, materials, or assistive technology devices; and

(B) evidence of visual acuity in the better eye with best possible correction of:

(I) 20/200 or less (blind); or

(II) 20/50 or less (partially sighted); or

(C) evidence of tunnel vision, in which the peripheral field is so contracted that the widest diameter of the field covers an angular distance no greater than 20 degrees and that the reduced peripheral field affects the child’s ability to learn;

(D) evidence of a progressive loss of vision which may, in the future, affect the child’s ability to learn; or

(E) evidence of blindness resulting from an active disease process; or

(F) visual acuity which cannot be measured but in which the child is functionally blind.

(iii) Visual Disability Reevaluation Procedures. The reevaluation plan for a child with a visual disability includes all initial evaluation procedures.

(iv) Visual Disability Continuing Eligibility Criteria. A child continues to qualify for special education if reevaluation indicates that the child meets initial eligibility criteria.

Section 17. Independent Evaluations. Each public agency must inform parent(s) of their right to an independent evaluation of their child at public expense if the parent(s) disagree(s) with an evaluation obtained by the public agency.

(a) Information about Independent Evaluations. Each public agency provides to the parent(s), on request, information about where and how an independent educational evaluation may be obtained.

(b) Appropriateness of Agency Evaluation. A public agency may initiate a hearing to show that its evaluation is appropriate. If the final decision of a hearing officer is that the agency’s evaluation is appropriate, the parent(s) still have a right to an independent educational evaluation, but not at public expense.

(c) Independent Evaluation as Part of a Hearing. If a hearing officer requests an independent educational evaluation as part of a hearing, the cost of the evaluation must be at public expense.

(d) Criteria for Independent Evaluation. Whenever an independent evaluation is at public expense, criteria under which the evaluation is conducted, including the setting of the evaluation and qualifications of the examiner(s) must meet the same criteria the public agency is required to use for evaluation.

(e) Evaluation at Private Expense. If parents obtain an independent educational evaluation at private expense, results of the evaluation:

(i) must be considered by the public agency in any decisions made with respect to the child; and

(ii) may be presented as evidence at a hearing regarding the child.

Section 18. Reevaluations. The Special Education Director (or preschool administrator) or designee ensures that an individual reevaluation of each child with a disability meets requirements of Sections 15 and 16 and is conducted at least every three years or more frequently if conditions warrant; or if the case manager or building administrator receives a written request or documents a verbal request from the child’s parent(s) or a person providing services to the child.

(a) Focus of Reevaluations. Reevaluations conducted for reasons other than the third year mandate (e.g. change to a more restrictive placement, concern over current progress, determining a child’s need for extended school year services, etc.) should specifically address concerns that necessitate the reevaluation.

(b) Parent Notice. The public agency provides written notice of reevaluation to the parent(s). The notice meets the requirements of Section 40.

(c) Exiting Special Education. When, through reevaluation, an IEP Team documents that a child no longer meets eligibility criteria, the special education director or preschool administrator notifies the parent(s) in writing and identifies regular education supports for the child.

(d) Erroneous Classification. When, through reevaluation, an IEP Team documents that a child has been erroneously classified as disabled and has been incorrectly placed in special education, the special education director or preschool administrator corrects information in the child’s records, informs the parents in writing, and takes any other necessary corrective measures including identification of regular education supports for the child.

Individual Education Program (IEP) Process

Section 19. Individual Education Program (IEP). The Special Education Director or designee (or preschool administrator) establishes an IEP Team and assigns a chairperson within five work days of receiving each multidisciplinary evaluation report.

(a) IEP Team Composition. An IEP Team includes the following representatives (one person may fulfill more than one role specified):

(i) the child’s parent(s);

(ii) an individual qualified to provide or supervise special education;

(iii) the building administrator or designee who can ensure that services specified in the child’s IEP will be provided;

(iv) a multidisciplinary evaluator or a person knowledgeable about evaluation procedures used and results of the evaluation;

(v) an individual knowledgeable in the area of the suspected disability;

(vi) the child’s regular education teacher or regular caregiver; if the child does not currently have a regular teacher or caregiver, a regular teacher or caregiver of children of comparable chronological age;

(vii) the child, when appropriate; (If transition is involved, the student is invited. If the student does not attend, the public agency takes other steps to ensure that the student’s preferences and interests are considered)

(viii) other individuals (at the discretion of the parents or public agency) who are familiar with the child’s needs;

(ix) representative(s) of involved agencies if a child is in transition; (If an agency invited to send a representative to a meeting does not do so, the chairperson takes other steps to obtain the participation of the other agency in the planning of any transition services) and

(x) a representative of the possible receiving agency (or private school when the child is voluntarily enrolled) if the child is being considered for placement in an educational agency out of district or out of the area served by a preschool. If a representative of the potential receiving agency cannot attend, the Special Education Director or preschool administrator can use other methods to ensure participation of potential receiving agencies, including conference telephone calls or other electronic communication technology.

(b) IEP Meetings. IEP Teams convene as frequently as conditions warrant. The IEP Team chairperson:

(i) convenes the IEP Team;

(A) For an initial IEP meeting, the chairperson convenes an IEP Team within 60 work days of receipt of parental consent for evaluation.

(B) For a child who is new to the district or preschool program and whose parents provide documentation that a current IEP exists for the child, the chairperson convenes an IEP Team within five work days of the child’s enrollment.

(C) For annual review, the chairperson convenes the IEP Team at least annually to review the child’s progress and develop a revised IEP.

(D) For subsequent IEP meetings, the chairperson convenes the IEP Team within ten work days of the case manager or building administrator receiving a written request or documenting a verbal request from any team member (including the parent(s)) for review or amendment of a child's IEP. The 10 day limit may be extended through documented mutual agreement of the parent(s) and the Team chairperson.

(ii) arranges a reasonable time and place for IEP Team meetings and notifies team members. To encourage the child's parent(s) to attend and participate in each IEP Team meeting, the chairperson:

(A) provides written notice to the parent(s) early enough to ensure that the parent(s) have an opportunity to attend. The notice includes the requirements of Section 40 (b)(i) and:

(I) a description of the purpose, proposed date, time, and location of the IEP Team meeting;

(II) a list of people invited to the IEP Team meeting (names and positions);

(III) an assurance that the parent(s) may bring other people who are familiar with the child's needs, to IEP Team meetings.

(B) schedules IEP meetings at a time and place mutually agreed upon by the parents and other IEP Team members. IEP Team meetings may be conducted without the parent(s) in attendance only when the agency documents:

(I) attempts to arrange a mutually agreed upon time and place. Documentation might include detailed records of repeated telephone calls made or attempted and the results of the calls, copies of correspondence sent to the parent(s) and any responses received, or detailed records of visits made to the parent(s) home or place of employment and the results of those visits.

(II) use of alternate methods for parent(s) participation.

(iii) takes steps to ensure that the parent(s) understand proceedings at IEP meetings. This includes providing an interpreter for the parent(s) who are deaf or whose native language is not English and explaining educational terminology used at the meeting.

(c) IEP Team Decisions. IEP Team decisions are made following the policies and procedures established by each public agency.

(i) Any IEP Team member who disagrees with an IEP Team decision states the dissenting opinion at the meeting, prepares a written explanation of the opinion, and attaches the written explanation to the IEP within five work days.

(ii) If a parent disagrees with any decision of the IEP Team, the parent may ask for reconsideration of specific recommendations, refuse initial placement, or initiate a hearing.

(d) IEP Team Responsibilities. The IEP Team determines the child's eligibility and need for special education and develops, reviews and revises a written IEP for each child with a disability.

(i) The IEP Team reviews the integrated multidisciplinary evaluation report and makes the final determination of the child’s need for special education based on the existence and nature of the child’s disability, and the effect of the disability on the child’s educational performance.

(A) The committee compares child performance data and eligibility criteria to decide if the child qualifies for and needs special education.

(B) No single procedure can be the sole criterion for determining whether a child has a disability and qualifies for special education, nor does the IEP Team rely solely upon test results in determining the existence of a disability. Rather, the team relies on the integrated multidisciplinary evaluation report and any other pertinent information describing the child.

(C) The IEP Team explains to the parent(s) the reason(s) a child does or does not qualify for special education.

(ii) The IEP Team develops, reviews, and revises the IEP.

(A) The IEP Team develops the child’s IEP at one or more meetings no later than 60 work days after receipt of parental consent for a multidisciplinary evaluation. To develop the IEP, the IEP Team:

(I) first establishes the child’s eligibility for and need of special education;

(II) then establishes annual goals and short term objectives for the child in each area of concern; each annual goal is supported by a minimum of two measurable short term objectives;

(III) then determines the related services needed by the child to benefit from special education; and

(IV) then determines the placement (LRE) in which the child can achieve IEP goals and objectives.

(B) The IEP Team reviews and revises each child’s IEP, at least annually, (prior to the completion of the existing IEP). At the review meeting, the team confirms the child’s continuing eligibility and need for special education, rewrites goals and objectives, and reconsiders placement and related services.

(iii) The IEP Team maintains a written record of each committee meeting, including:

(A) the date and location of the meeting;

(B) names and titles of people attending the meeting;

(C) a summary of matters discussed during the meeting including recommendations regarding the child and summaries of supporting and dissenting opinions;

(D) a summary of contributions and concerns expressed by the parent(s);

(E) documentation of the review of parental rights; and

(F) dated signatures of the recorder and each team member, attesting to the accuracy of the written record and the fact that these deliberations, discussions, and conclusions of the IEP Team occurred only during a formal IEP Team meetings.

(iv) The IEP Team chairperson ensures that the child’s parents receive a copy of the IEP.

(e) IEP Content. Each child’s IEP includes at least:

(i) a summary of the child’s present levels of educational performance;

(ii) a statement of annual goals;

(iii) a statement of measurable short term instructional objectives, appropriate criteria and evaluation procedures and schedules for determining at least annually whether short term objectives are achieved;

(iv) a statement of specific special education and related services to be provided and the extent to which the child will participate in regular education programs;

(v) a statement of projected dates for initiation and anticipated duration of services, frequency of services, time per week, and the position of the person providing each service;

(vi) a description of physical education services;

(A) Every child with a disability has the opportunity to participate in regular or specially designed physical education programs. Each child with disability participates in regular physical education unless the child needs specially designed physical education which cannot be provided in the regular physical education program.

(B) If specially designed physical education is part of a child’s IEP, the agency responsible for the education of the child provides specially designed physical education directly or makes arrangements for such services to be provided.

(vii) a description of transition planning to post-secondary services;

(A) Beginning at age 16 (or younger, if appropriate) each IEP includes a description of specially designed transition services to prepare the child for employment and/or independent living, including but not limited to:

(I) vocational education or instruction;

(II) post-secondary education or vocational training;

(III) integrated employment;

(IV) continuing and adult education;

(V) adult services;

(VI) independent living; and/or

(VII) community participation.

(B) Each public agency establishes necessary interagency links and delineates interagency responsibilities for meeting the vocational education needs of children with disabilities. If a participating agency fails to provide agreed-upon transition services contained in the IEP of a student with a disability, the public agency responsible for the student’s education initiates a meeting, as soon as possible, for the purpose of identifying alternative strategies to meet the transition objectives and, if necessary, revising the student’s IEP. (Nothing in this part relieves any participating agency, including State Vocational Rehabilitation Agency, of the responsibility to provide or pay for any transition service that the agency would otherwise provide to students with disabilities who meet the eligibility criteria of that agency.)

(C) If the IEP team determines that services are not needed in one or more of the areas specified in (A) the IEP includes a statement to that effect and the basis upon which the determination was made.

(viii) a statement of any extended school year (ESY) services to be provided;

(ix) a description of any services to be provided by other public or private agencies as part of the child’s free appropriate public education;

(x) a description of the specific environment(s) in which the child will be placed, and the time the child will spend in each setting;

(xi) a description of any differential high school graduation criteria required and type of diploma to be issued (must be addressed prior to the 9th grade year);

(xii) the name of the person responsible for monitoring the IEP and reporting to the IEP Team.

(f) Determining Placement. When an IEP Team proposes placing a child with a disability in a special education program or changing the child’s placement, the agency provides written notice to the child’s parent(s) and obtains written parental consent when necessary. (see Section 40)

(ii) In no case are special education and related services provided to a child with a disability until an IEP, including goals and objectives has been completed and a placement decision has been made by the IEP Team.

(iii) An IEP is in effect for each child with a disability at the beginning of each school year.

(iv) A public agency, teacher or other person is not held liable if a child does not achieve annual goals or short term objectives on the IEP.

Section 20. Related Services. The IEP Team determines the related services required for a child with a disability to benefit from special education. Related services, including goals and objectives, must be written in the IEP and must relate directly to the child’s individual needs.

(a) Eligibility. A child must meet eligibility criteria in one or more disability areas in order to receive any related service.

(i) If a child does not qualify for and need special education, the IEP Team cannot recommend any related services.

(ii) A related service may be considered special education when it is specifically designed to meet the unique educational needs of a child with a disability.

(b) Determining Related Services. To determine whether related services are required, the IEP Team:

(i) reviews results of the child’s multidisciplinary evaluation report and IEP goals and objectives; and

(ii) decides whether or not related services are required for the child to benefit from special education. In determining related services, the IEP Team considers if the related service:

(A) is an integral part of an IEP objective; and

(B) is needed by the child as part of the education program or within school facilities.

(c) Providing Related Services. If the IEP Team determines that a related service is needed for a child to benefit from special education, it is included in the child’s IEP and provided by the public agency.

(d) Types of Related Services. Related services means transportation and developmental, corrective or supportive services (such as orientation and mobility evaluation and training for a blind child, note taking for a deaf child, language interpreting for a deaf child) as are required to assist a child with a disability to benefit from special education, and include, but are not limited to:

(i) assistive technology services;

(ii) audiology, speech/language services;

1. (iii) counseling and/or psychological services;
2. (iv) occupational and/or physical therapy services;
3. (v) parent counseling and training services;
4. (vi) rehabilitation counseling services;
5. (vii) school health services;
6. (viii) social work services;
7. (ix) transition services;
8. (x) transportation.

(e) Monitoring Equipment. As a related service, each public agency regularly monitors the proper functioning of special equipment (including hearing aids).

Section 21. Least Restrictive Environment (LRE). After developing annual goals and short term objectives, the IEP Team determines the appropriate placement for a child.

(a) LRE Principles. Appropriate placement is placement in the least restrictive environment which is as close as possible to the child’s home.

(i) Regular Environment. The IEP Team places a child with a disability in the regular education environment the child would attend if not disabled. If the nature or severity of the child’s disability dictates that the child’s IEP goals cannot or could not be achieved in that regular educational environment (even with supplementary aids and services), the child’s placement is in an environment as similar to the regular educational environment as possible.

(ii) IEP-based Decision. When an IEP Team selects a placement other than the regular education environment the decision is based on selecting a placement which allows the child opportunity to achieve his/her IEP goals and objectives. An IEP Team must carefully consider and document information used as a basis for making placements outside the regular education environment.

(iii) Not Disability-based. In no event can an IEP Team’s placement decision be based solely on the category of a child’s disability.

(iv) Participation with Others. Every child with a disability is educated with and allowed to participate to the maximum extent appropriate, with children of similar chronological ages who do not have disabilities. Participation can be in academic, nonacademic, and/or extracurricular activities.

(v) Alternate Settings. When an IEP Team places a child outside the regular education environment, the placement is in an alternate setting selected from a continuum of settings.

(b) Continuums. Each public agency ensures that a continuum of alternative educational placements is available at all times to meet the needs of children with disabilities.

(i) Regular Environment is the placement for children with disabilities who are in the regular class (school-age) or regular environment (preschool age) 80% through 100% of the school day. This may include:

(A) regular class with special education and/or related services provided within the regular class;

(B) regular class with special education and/or related services provided in another setting.

(ii) Special Environment is the placement for children with disabilities who are in the regular class (school-age) or regular environment (preschool age) for 40% through 79% of the school day. This may include:

(A) special education classrooms with special education and related services provided in another setting; and part-time participation in a regular classroom;

(B) special education classrooms with part-time instruction in a regular class,

(iii) Separate Class Environment is the placement for children with disabilities who are in the regular class (school-age) or regular environment (preschool age) for 1% through 39% of the school day. This may include:

(A) special education classrooms with part-time participation in a regular class; or

(B) special education classrooms full-time in a regular school building.

(iv) Separate School Environment is the placement for children with disabilities who receive special education and related services in a separate facility for children with disabilities within the jurisdiction of the LEA or preschool attendance center.

(v) Residential Environment is the placement for children with disabilities who receive special education and related services in a residential facility for students with disabilities outside the LEA or preschool attendance center.

(vi) Homebound or Hospital Environment is the placement for children with disabilities who receive special education and related services at home or in a hospital.

(c) Team Procedures for Determining LRE. The IEP Team documents team consideration of placement alternatives. In determining placement, the team considers and discusses the following placement alternatives:

(i) Placement full time in a regular environment;

(A) When placing a child in the regular environment, the IEP Team decides which supplementary aids and services the child needs to achieve IEP goals and objectives.

(B) The team places a child in the regular environment 100% of the time when the team believes the child can achieve all IEP goals and objectives in the regular environment.

(C) When placing a child in the regular environment, more than 80% but less than 100% of the time, the team documents that the regular classroom cannot provide curriculum, instruction, and/or classroom organization needed to support the child's achievement of all IEP goals and objectives. The child may then receive some services outside the regular classroom;

(ii) Placement in a special environment when a team agrees that regular environment is not an appropriate placement for the child;

(A) When placing a child outside the regular environment, the IEP Team determines that the curriculum, instruction, and/or classroom organization needed to support the child's achievement of IEP goals and objectives could not be provided in the regular environment.

(B) In selecting LRE for a child, the team considers any potential harmful effect on the child or on the quality of services the child needs.

(iii) Placement of a child in a more restrictive environment, when the team agrees that the current environment is not appropriate (in which case, the team documents that):

(A) the child has not achieved a significant number of short-term objectives in the current placement;

(B) the short-term objectives that were not attained were, and continue to be appropriate and are incorporated in the proposed IEP; and

(C) the change to a more restrictive environment is not based solely on:

(I) an incompatibility between the child's individual learning characteristics and the instructional methodologies or curriculum used;

(II) the negative effects of peer interaction;

(III) unavailable or ineffective supplementary aids or services or related services called for in the IEP; or

(IV) outside factors related to the home or community environment or to personal health or mental health problems.

(iv) Placement of a child in a less restrictive environment when the team believes the child can achieve IEP goals and objectives in a different and less restrictive environment.

Section 22. Residential Placements. An IEP Team recommends residential placement of a child in a public or private education program other than the child's home LEA or IEU only after an IEP has been developed and the team determines that appropriate educational services are not available and cannot be developed by the public agency.

(a) Determining Placement. In determining residential placement the IEP team confirms that:

(i) the child’s parents have been involved in selecting the residential education program;

(ii) the residential program selected is the program that is closest to the child’s home where appropriate educational services are available;

(iii) the residential program is provided by adequately certified or licensed providers; and

(iv) the program meets the following criteria:

(A) each building operated by or in conjunction with the program meets all state and local health, safety and fire standards;

(B) the program has a written agreement with the public agency in whose jurisdiction the residential program is located. The agreement states that the public agency will provide as many educational opportunities as possible for integration with children who are not disabled; and

(C) the Chairperson of the Board of Directors of the receiving agency (or designee) verifies by signature on a contract that the program is in compliance with the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, and the Individuals with Disabilities Education Act, and the Americans with Disabilities Act.

(b) Rules and Regulations. The sending agency provides copies of applicable State Board of Education rules and regulations and amendments to the residential program as they occur.

(c) FAPE. When a child with a disability has available FAPE and the parents choose to place the child in a private school or facility, the public agency is not required to pay for the child’s education at the private school or facility.

(d) Disagreements. Disagreements between a parent and public agency regarding the availability of a program appropriate for the child and the question of financial responsibility are subject to due process.

Section 23. Court Placements. Each LEA and IEU designates a person who, when notified, is responsible for ensuring that each child with a disability from their agency receives FAPE when the child is placed by the courts in public or private facility.

(a) Designee Responsibility. When an LEA or IEU has a child with a disability placed by the court in other facilities, the LEA or IEU designee:

(i) takes steps to ensure prompt transfer of a copy of the child’s IEP and school records to the receiving facility;

(ii) annually monitors implementation of the child’s IEP; and (A) continues to be part of a child's IEP Team when the child is placed in a court-ordered facility;

(B) notifies WDE and the court that placed the child when a child's IEP is not appropriately implemented; and

(iii) ensures re-entry of the child in the LEA or IEU education program, by:

(A) obtaining and reviewing records developed by the staff of the court-ordered facility; and

(B) ensuring that an IEP Team reviews and revises each returning child's IEP prior to providing services.

(b) interaction with Peers. Each LEA works with facilities in it's district boundary and each IEU works with facilities in it's geographic area to provide opportunities for court-placed children with disabilities to interact with non-disabled peers.

(c) Wyoming Education Code. LEA and IEU activities related to court-placed children with disabilities must be in concert with Section 21-13-315 of the Wyoming Education Code.

Section 24. Extended School Year (ESY) and Summer School. Each public agency provides extended school year (ESY) services for each child with a disability as deemed appropriate by an IEP Team. Summer school is voluntary and IEP Teams do not determine summer school placement. The parent(s) voluntarily enroll a child in summer school programs if summer school programs are provided by the public agency.

(a) ESY. To qualify a child for ESY services, the IEP Team agrees that lack of ESY programming would potentially cause a major loss of IEP related skills such that recoupment would require three or more months of the succeeding school year.

(i) At least annually, the IEP Team uses information about each child to determine and document the need for ESY. The Team may consider information about:

1. (A) the child's current performance;
2. (B) the child's health and other related factors;
3. (C) the child's past history of extended school year services; and
4. (D) information from teacher, parent and child interviews.

(ii) An IEP Team may not prescribe ESY services solely because a child failed to achieve IEP goals and objectives during the school year. If the Team determines that a child is progressing adequately from year to year despite lack of ESY programming, the child does not require ESY services.

(iii) ESY services occur in the least restrictive environment. However, increased isolation of children with disabilities during ESY programming when non-disabled children are not attending school does not violate LRE requirements.

(iv) The IEP Team develops or revises a current IEP for any child who receives ESY services.

(b) Summer School. Summer school is a supplemental program voluntarily made available by a public agency, but not required by the child. Any child with a disability may attend summer school, if summer school is voluntarily provided by the public agency. IEP goals and objectives are not written for summer school programs since special education services are not required during a voluntary summer school enrollment.

Section 25. Review & Revision of the IEP. The IEP Chairperson notifies team members and reconvenes the IEP Team at least annually or within ten work days of receiving a written request or documentation of a verbal request from any member of the IEP Team, including the parent(s), for review of a child’s IEP. The ten day limit may be extended through documented mutual agreement of the parent(s) and the Special Education Director, preschool administrator, or designee.

(a) Meetings. The chairperson provides written notice to the parent(s) a reasonable time prior to IEP Team meetings for annual review of their child’s IEP. Meetings are scheduled at a time and place mutually agreeable to the parent(s) and other team members (See Section 19).

(b) Goals and Objectives Review. The IEP Team determines whether annual goals and short term objectives specified in the IEP have been achieved by the child during the period of time for which the IEP was written.

(c) Placement. The IEP Team updates information and makes appropriate modifications in each component of the child’s IEP. During review the team reconsiders placement of the child based on revised IEP goals and objectives. The team considers placement only after goals and objectives have been revised.

(i) When a child is placed outside the child’s home LEA or IEU, the sending agency’s Special Education Director (or preschool administrator) or designee continues to be responsible for compliance with all applicable local, state and federal laws and regulations related to annual program review.

(ii) For a child placed in a residential program, IEP Team meetings to review and revise the IEP may be initiated and conducted by the agency where the child is placed, at the discretion of the sending agency’s Special Education Director (or preschool administrator) or designee. The parent(s) and a representative of the sending public agency are involved in all IEP Team meetings and agree to any proposed changes in the IEP before the changes are implemented.

Section 26. Program Coordination. Each public agency provides planning and support for children with disabilities, their families, teachers and caregivers as children move from program to program.

(a) Types of Program Coordination. Each public agency coordinates program changes, includ- ing:

(i) Age-based changes, which include a child’s transfer into a preschool program, from a preschool to a school based program, from an elementary to a secondary program, or from a secondary program to a post-secondary program;

(ii) Performance-based program changes which include a child’s transfer into or out of special education/related services, or changes in the amount of time a child spends in different education settings (examples are special education to regular education, residential placement to non-residential placement, hospital or homebound to school based program);

(iii) Geography-based program changes which include a child’s transfer to a court-placed facility, or change of the child’s family residence (district to district).

(b) Principles of Program Coordination. Public agencies consider the following factors:

(i) Continuity. Maintaining continuity of services is a priority in transferring a child from one program to another.

(ii) Inter and intra-agency cooperation. Interagency cooperation and intra-agency cooperation and support are critical to effective program coordination.

(iii) Increasing independence. The goal of program coordination is to increase the independence of the child with a disability.

(c) Implementation of Program Coordination. Public agencies coordinate the transfer of children from one program to another.

(i) For age-based program changes, programs work jointly to develop transition procedures, including:

(A) delineation of responsibilities of each program:

(I) the sending program notifies the receiving program(s) of children with disabilities who will be transferring into the receiving program;

(II) sending and receiving programs jointly develop procedures for adjusting IEP Team composition and transferring case management responsibilities; and

(III) receiving programs implement each child’s IEP’s.

(B) joint development of procedures for transfer of records, development of timelines, specification of skills needed for success in the new environment and revisions/modifications of the child’s IEP.

(ii) For performance-based and geographic based program transfers, IEP Teams develop activities and schedules needed by each individual child as outlined in each child’s IEP.

Service Delivery

Section 27. Program Access. Programs provided by public agencies serving children with disabilities (directly or through contractual arrangements) must be accessible to people with disabilities.

(a) Accessibility. Each program or activity, when viewed in its entirety, must be readily accessible to people with disabilities. When a building is not accessible, agencies may provide program access through any of several strategies which open programs and activities to people with disabilities in the most integrated setting appropriate. Access strategies include redesigning equipment, reassigning classes or services to accessible buildings, assigning aides to children with disabilities, providing home visits, delivering health, welfare or other social services at alternate accessible sites and altering existing facilities.

(b) Barriers. Architectural barriers must not prevent a child with a disability from being educated in the least restrictive environment. Structural changes in facilities do not need to be made when other methods effectively ensure program access in the least restrictive environment.

(c) Equivalent Programs and Services. The Special Education Director (or preschool administrator) or designee ensures that the same variety of educational programs and services available to non-disabled children within a public agency are available to children with disabilities.

Section 28. Suspension and Expulsion. Public agencies suspend and expel children in compliance with W.S. 21-4-305 and -306 and the suspension and expulsion guidelines which follow.

(a) Short Term Suspension. A public agency may suspend a child with a disability from school for a period of no more than ten consecutive official school days if the agency determines that:

(i) the child’s behaviors pose a danger to self or others; or

(ii) the child is engaged in conduct which would warrant suspension for a child without a disability.

(b) Serial Suspension. A public agency may not use consecutive short term suspension for children with disabilities.

(c) Expulsion. Expulsion is considered a change of placement for a child with a disability. The public agency may expel a child with a disability from a program for a period which exceeds ten official school days, but does not exceed one school year if:

(i) the public agency determines that the child has engaged in conduct which would warrant suspension of such duration if the child were not disabled;

(ii) the IEP Team determines that the child’s conduct is not related to the child’s physical or mental disability, based on current assessment data and current IEP information (the IEP Team may request a new or more current multidisciplinary evaluation);

(iii) prior to expulsion of more than ten official school days, a child is entitled to all due process rights described in these rules, including the right to a due process hearing.

(iv) the IEP Team determines alternative methods of providing the child’s special education and related services during the expulsion period.

Section 29. Non-academic and Extra-curricular Activities. Public agencies offer non-academic and extra-curricular services and activities in ways that allow equal opportunity for each child with a disability to participate.

(a) Participation. No child with a disability is denied opportunity to compete for teams or to participate in recreational activities, intramural and interscholastic athletics, transportation, health services, and clubs sponsored by the public agency.

(b) Integration. Public agencies provide each child with a disability opportunities to participate in recess and meal periods in the most integrated setting appropriate.

Section 30. Paraprofessionals. Paraprofessionals are teaching assistants, classroom aides, job coaches, interpreters, hearing and vision technicians, and related service aides.

(a) Qualifications and Duties. Agency policies regarding qualifications and duties of paraprofessionals used in special education and related service programs must comply with applicable paraprofessional state licensure requirements and meet the following criteria:

(i) Paraprofessionals carry out only those tasks for which they have been adequately trained.

(ii) Paraprofessionals may carry out duties in special classrooms, regular classrooms, and/or other areas of the school or community.

(iii) Public agencies do not use paraprofessionals to carry out professional responsibilities of licensed or certified professionals; rather, paraprofessionals assist professionals in carrying out professional responsibilities.

(b) Supervision of Paraprofessionals. Each paraprofessional works under the direct supervision of a person licensed or certified to provide services in the service area in which the paraprofessional is working.

(i) Each paraprofessional consults directly with a supervisor on a frequent basis (at least once per week); frequency is determined by the professional under whose supervision the paraprofessional works.

(ii) Supervisors consult directly with paraprofessionals, thoroughly monitor the work of each paraprofessional, and document supervision findings.

Section 31. Educational Resource Centers (ERCs). A public agency may establish an Education Resource Center to assist individuals involved in educating children with disabilities.

(a) Functions. ERCs:

(i) provide case management, consultation, and technical assistance in identifying, selecting, procuring and using resources to educate children with disabilities (including instructional materials and equipment, curricula, instructional procedures, motivational techniques, classroom management strategies, staff development, and other resources pertinent to education);

(ii) conduct staff development activities for professional and paraprofessional staff members; and

(iii) conduct parent training and provide information to assist parent(s) in understanding the special needs of children with disabilities, child development, and program transfers.

(b) No Direct Services. ERC staff members do not provide any direct services (child assessment, speech therapy, or classroom instruction) to children with disabilities or children suspected of having disabilities.

(c) Administration. Each ERC functions under the direct administrative supervision of the agency’s Special Education Director.

Section 32. Opportunities for Children Voluntarily Enrolled in Private Agencies. Each LEA and IEU identifies any unmet educational needs of children with disabilities or children suspected of having disabilities who are voluntarily enrolled in private agencies in the jurisdiction served by the LEA or IEU.

(a) Providing Opportunity. LEA and IEU meets with private agency personnel to provide genuine opportunities for special education and related services to children with disabilities voluntarily enrolled in private agencies, including:

(i) multidisciplinary evaluation;

(ii) IEP Team meetings for the development of IEP’s and specification of the location of service delivery;

(iii) implementation and monitoring of IEPs; and

(iv) review and revision of IEPs.

(b) Exceptions. Each LEA and IEU provides special education and related services to meet the needs of children with disabilities voluntarily enrolled in private agencies within its jurisdiction; except that the public agency does not provide services when:

(i) the service is a service for which the parent(s) are charged as part of the tuition of the private agency; or (ii) the service is routinely provided by the private agency to children without disabilities enrolled in the private agency.

(c) Comparability. Special education and related services an LEA or IEU provides for children enrolled in private programs must be comparable to the special education and related services the LEA or IEU provides for students enrolled in the public agency’s programs. Comparability includes quality, scope and opportunity for participation.

(d) Setting. An LEA or IEU provides special education or related services within or outside the LEA or IEU but not in any setting located in a church, synagogue or other place of worship or which contains emblems, symbols or other signs of religious significance.

(e) Equipment and Supplies. An LEA or IEU may place equipment and supplies in a private program when the equipment and supplies are used only for purposes of serving children with disabilities and can be removed from the private program without remodeling private program facilities.

(i) Each LEA or IEU must keep title to and exercise continuing administrative control over all equipment and supplies a private program acquires with public agency program funds.

(ii) An LEA or IEU removes equipment or supplies from a private program when:

(A) the equipment or supplies are no longer needed to serve children with disabilities; or

(B) removal is necessary to avoid use of the equipment or supplies for purposes other than special education or related services.

(f) No Class Separation. Programs carried out in public agency facilities, involving joint participation by children with disabilities enrolled in private programs and public agency programs do not include classes separated on the basis of children’s school enrollment or religious affiliation.

Due Process Procedures

Section 33. Request for Hearing. The parent(s) of a child with a disability or suspected of having a disability (or a child who has reached the age of majority and has not been declared incompetent by a Wyoming Court) or a public agency may request a due process hearing.

(a) The parent(s) or public agency may request a hearing when the public agency proposes or refuses to initiate or change the identification, assessment or educational placement of the child or proposes to make any change in the provision of FAPE.

(b) A public agency may request a hearing when a parent fails to provide written parental consent for a proposed action or provides formal disapproval.

(c) The individual or agency requesting a hearing submits a written request to the State Superintendent of Public Instruction, State Department of Education, Hathaway Building, Cheyenne, Wyoming (i) The written request must include a brief statement of all unresolved issues which are the basis for the hearing.

(ii) The party requesting the hearing must provide a copy of the request to the other party.

(d) Upon documentation of a verbal request or receipt of a written request for a hearing, the WDE:

(i) encourages both parties to exhaust local administrative remedies;

(ii) informs both parties of mediation procedures and their right to waive mediation; and

(iii) provides written information to the person requesting the hearing regarding low-cost legal services as well as other services relevant to mediation or a due process hearing and the right to waive the mediation conference.

(e) The WDE ensures that within 45 calendar days after receipt of a written hearing request the hearing is completed, including any mediation, and a final decision is issued, unless a continuance has been granted.

Section 34. Status of Child During Hearings. During mediation, due process hearings or judicial proceedings, the child involved remains in the child’s present educational placement unless the public agency and the parents agree otherwise. If the hearing involves an application for initial admission to a public agency, the child, with consent of the parents, is placed in a public agency program until all proceedings are completed.

Section 35. Mediation. Within five work days of receiving a written request for a due process hearing, WDE initiates steps to conduct a mediation conference, unless either party refuses to participate in the mediation conference.

(a) Purpose. The purpose of the mediation conference is to attempt to resolve existing differences and, if possible, avoid a hearing.

(i) WDE ensures that mediation is viewed as voluntary and freely agreed to by both parties and is in no way used to deny or delay an aggrieved party’s right to a hearing.

(ii) WDE appoints a trained mediator to carry out all mediation activities.

(iii) The mediation conference is an informal process conducted in a nonadversarial atmosphere.

(iv) Mediation is completed within 15 calendar days of WDE’s receipt of the written request for the hearing.

(b) Continuance. Either party to a mediation conference may request that the mediator grant a continuance. A continuance, granted upon a show of good cause, shall not extend the 45 calendar day maximum for completion of the due process hearing and rendering of the final administrative decision, unless the party initiating the request for the hearing agrees to such an extension. In such circumstances, the continuance extends the time for rendering a final administrative decision for a period only equal to the length of the continuance.

(c) Any resolution reached through mediation must be satisfactory to both parties and in compliance with state and federal laws. Satisfaction with the resolution is indicated by the signatures of both parties on the written resolution.

(d) A copy of the written resolution is mailed by the mediator to WDE and to each party within five calendar days of the mediation conference.

Section 36. Pre-Hearing Procedures. If either party refuses to participate in a mediation conference or other proposed mediation steps, or if mediation efforts fail to settle differences between two parties, the State Superintendent appoints an independent hearing officer from a list of trained, independent hearing officers (with qualifications) maintained by WDE.

(a) Independent Hearing Officers. The independent hearing officer carries out all hearing activities in conformance with WDE hearing procedures.

(i) The following people are excluded from acting as qualified hearing officers:

(A) any person who is an employee of a public agency involved in the education or care of children with disabilities; or

(B) any person who, with respect to the particular hearing, has any personal or professional bias or interest which might conflict with his or her objectivity toward either of the parties in the hearing or any of the issues to be decided in the hearing.

(ii) Either party to a hearing may object to the assignment of a hearing officer by submitting a written objection to the State Superintendent within ten calendar days of notification of the appointment of the hearing officer. The written objection must include information supporting a claim of personal or professional bias or interest leading to lack of objectivity. Within ten calendar days of receipt of such a written objection, WDE rules on the objection and:

(A) appoints another person from the list of qualified hearing officers (if another hearing officer is appointed, the procedures for objecting also applies to the newly appointed hearing officer); or

(B) verifies that the individual originally proposed is qualified.

(iii) An independent hearing officer may at any point withdraw from consideration or from service in any hearing in which the hearing officer believes a personal or professional bias or interest in any of the issues to be decided in the hearing might conflict with the hearing officer’s objectivity.

(b) Notification. Within a reasonable time the independent hearing officer provides the parent(s) and the public agency written notice of the date, time and place of the hearing, ensuring that the hearing is conducted at a time and place reasonably convenient to the parent(s) and the child involved.

(c) Pre-hearing Conference. At the discretion of the independent hearing officer or upon request of either party, a pre-hearing conference is held in the manner set forth in Rule 16 of the Wyoming Rules of Civil Procedure; in no event is a pre-hearing conference held later than five calendar days prior to the hearing.

(d) Disclosure. Each party discloses to the other the full name, title, occupation and place of employment of each witness, a capsule summary of each witnesses' testimony and any other evidence to be presented. These disclosures must be made at least five calendar days prior to the hearing.

(e) Explanation of Hearing Procedures. During a pre-hearing conference or through delivery of a written notice, the independent hearing officer ensures that the parent(s) are provided a full explanation of the hearing procedures.

Section 37. Conduct of the Hearing. Independent hearing officers conduct hearings in accordance with the Wyoming Administrative Procedure Act W.S. 16-3-101 through 16-3-115, excluding subsections (g) of W.S. 16-3-107.

(a) Opportunities. The independent hearing officer ensures that each party to the hearing is afforded an opportunity to:

(i) be accompanied and advised by counsel and by individuals with special knowledge or training regarding children with disabilities;

(ii) present evidence, confront, cross examine, and compel the attendance of witnesses;

(iii) obtain a record of the hearing without charge or undue delay; and

(iv) obtain the written decision of the hearing officer.

(b) Attendance. The independent hearing officer permits attendance of the child at a hearing and opens the hearing to the public only upon request of the child's parent(s).

(c) Prohibition of Undissolved Information. The independent hearing officer prohibits introduction of any evidence offered by a party which has not been disclosed to the other party consistent with the requirements of Section 36.

(d) Record. WDE ensures that a written or electronic verbatim record of the hearing is prepared.

(e) Continuance. Either party to a hearing may request in writing that the hearing officer grant a continuance. A continuance is granted upon a show of good cause. Any continuance extends the time for rendering a decision by the independent hearing officer for a period only equal to the length of the continuance.

(f) Decision. Within 45 calendar days after the State Superintendent's receipt of the written request for the hearing, the independent hearing officer renders, a written decision and findings of fact concerning all matters at issue in the hearing. The hearing officer mails or personally delivers a written copy of the findings of fact and the decision to each of the parties and to WDE. The hearing officer also mails or delivers records of the hearing (verbatim or electronic transcript) to WDE. The decision of an independent hearing officer is binding upon both parties unless the decision is appealed.

(g) Copies of Findings. WDE, after deleting any personally identifiable information, provides a copy of the findings of fact and decision to the State Advisory Panel and to the public upon written request.

Section 38. Appeal of a Hearing Decision. Any party who feels aggrieved by the findings and decisions of an independent hearing officer may appeal to a district court of the State of Wyoming pursuant to Rule 12 of the Wyoming Rules of Appellate Procedure or may bring a civil action in the United States District Court for Wyoming under the Individuals with Disabilities Education Act (IDEA).

Section 39. Expenditures for Hearings. Parties involved in hearings are each responsible for any legal or other fees they incur.

(a) Administrative Costs. The WDE is responsible for paying administrative costs related to hearings, including necessary expenses incurred by the independent hearing officer and any stenographic services in accordance with WDE policies and procedures.

(b) Attorney Fees. Each party is responsible for their own attorney's fees unless the parent prevails in a hearing and the parent obtains a court order stating that the agency must pay attorney's fees.

Procedural Safeguards

Section 40. Parental Notice and Consent. Public agencies document the provision of parental notice and consent as required.

(a) Notice. A public agency provides written notice to the parent(s) of a child with a disability or a child suspected of having a disability within a reasonable time prior to when the public agency:

(i) proposes to initiate or change the identification, assessment or educational placement of the child or proposes to make any change in the provision of FAPE for the child;

(ii) refuses to initiate or change the identification, assessment or educational placement of the child or refuses to make any change requested by the parent(s) in the provision of a FAPE for the child; or

(iii) refuses to amend the child's educational records or proposes to destroy unneeded educational records in accordance with confidentiality requirements.

(b) Content of the Notice. A public agency provides parental notices in language the general public understands, and in the native language or other mode of communication used by the parent(s). The agency documents the mode of communication used and takes steps to ensure that parent(s) understand the content of the notice. The notice includes:

(i) a full explanation of procedural safeguards available to the parent(s) under IDEA and these rules and regulations (WDE Procedural Safeguards statement must be used);

(ii) a description of actions proposed or refused by the public agency, an explanation of why the agency proposes or refuses to take the actions and a description of any options the agency considered and the reasons why those options were rejected;

(iii) a description of each assessment procedure, test, record or report used as a basis for the action; and

(iv) a description of any other factors relevant to the agency’s action.

(v) if the purpose of the meeting is the consideration of transition services for a student, the notice also:

(A) indicates this purpose;

(B) indicates that the agency will invite the student; and

(C) identifies any other agency that will be invited to send a representative.

(c) Consent. Each public agency documents that written parental consent has been obtained prior to each of these situations:

(i) conducting a pre-placement evaluation;

(ii) initial placement of a child with a disability in a special education program; or

(iii) disclosure of personally identifiable information to unauthorized persons.

(d) Revocation of Parental Consent. Parental consent of a proposed action is voluntary and may be revoked at anytime.

(e) Acting without Parental Consent. If an independent hearing officer upholds the public agency’s request, the agency may act without parental consent subject to the parent’s right of appeal.

Section 41. Surrogate Parents. A surrogate parent, when representing the child’s educational interests, has the same rights as those accorded to parents.

(a) Appointment. Surrogate parents are appointed by the public agency when:

(i) a child is a ward of the state (including a ward of the court or of a state agency) and all parental rights have been revoked; or

(b) Qualifications. A surrogate parent:

(i) has no interests that conflict with the interests of the child to be represented;

(ii) has knowledge and skills that ensure adequate representation of the child, including a functional understanding of the educational rights of children with disabilities; and

(iii) is not an employee of a public agency involved in the education or care of the child. (A surrogate is not considered an employee if they are paid solely by the public agency to serve as a surrogate.)

(c) Representation. A surrogate parent represents the child in all matters relating to identification, assessment, educational placement, and provision of FAPE, including IEP meetings and any mediation or due process hearings pertaining to the child. The surrogate parent continues to represent the child until:

(i) the child is no longer eligible for or in need of special education and related services (except when termination from such programs is being contested);

(ii) the parent, a guardian, or a person acting as the child’s parent, becomes known;

(iii) it is determined that the appointed surrogate parent no longer adequately represents the child; or

(iv) the child reaches age of majority (except in the instance when the child is legally determined to be incompetent by a Wyoming court and cannot represent themselves).

(d) Liability. A person appointed as a surrogate shall not be held liable for actions taken in good faith on behalf of the child.

Section 42. Confidentiality. Public agencies take steps to ensure that information and educational records for children with disabilities remain confidential.

(a) Parent Review of Educational Records. Each public agency provides the parent(s) of a child with a disability the opportunity to inspect and review their child’s educational record with respect to identification, evaluation, educational placement, and the provision of FAPE. Upon attaining the age of majority (as long as the child has not been declared incompetent by a Wyoming court), a child with a disability is accorded the same rights as a parent.

(i) Each public agency must comply, without unnecessary delay, to each parent request to inspect and review their child’s educational records, including requests prior to IEP Team meetings or hearings relating to identification, evaluation, placement or the provision of FAPE to the child. In all cases, the public agency responds within 45 calendar days of the request.

(ii) Parental rights to inspect and review educational records include rights to:

(A) a response from the public agency to reasonable requests for explanations and interpretations of the educational records;

(B) request that the public agency provide copies of the educational records containing the information if failure to provide those copies would effectively prevent the parent(s) from exercising the right to inspect and review the educational records (public agencies must comply with copyright laws);

(C) have a representative of the parent(s) inspect and review the educational records; such review must be made either in the company of the child’s parent(s) or expressly authorized by the child’s parent(s) in a manner which can be verified by the public agency.

(iii) Parental Authority. A public agency may presume that the parent has authority to inspect and review educational records relating to the child unless the agency has been advised that the parent does not have the authority under applicable state law governing such matters as guardianship, separation and divorce.

(iv) Group Records. If any educational record includes information on more than one child, a parent has the right to inspect and review only the information relating to his or her child or to be informed of that specific information.

(v) Information on Types of Records. A public agency provides the parent(s), on request, a list of the types and locations of educational records collected, maintained, or used by the agency.

(vi) Fees. With the exception of the IEP, or search and retrieval costs, the public agency may charge a fee for copies of educational records which are made for the parent(s) under this section if the fee does not effectively prevent the parent(s) from exercising their right to inspect and review their child’s educational records.

(b) Contesting Information. Parents who believe that information in their child’s educational record is inaccurate or misleading or violates the privacy or other rights of the child may request that the public agency amend the information. Upon receiving a written parental request to amend a child’s record, the public agency decides whether to amend the information as requested.

(i) If the agency decides to amend the record, the record is amended within a reasonable period of time following receipt of the parent request.

(ii) If the agency refuses to amend the information, the agency informs the parent(s) of the refusal and advises the parent(s) of the right to a hearing in accordance with the requirements of the Family Educational Rights and Privacy Act (34 CFR Part 99). If the parent(s) so request(s), the public agency provides a hearing.

(A) If, as a result of the hearing, the public agency decides that the information in a child’s record is inaccurate, misleading or otherwise in violation of the privacy or other rights of the child, the agency amends the information accordingly and so informs the parent(s) in writing.

(B) If, as a result of the hearing, the public agency decides that the information is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of the child, the agency informs the parent(s) of their right to place in the child’s educational records a statement commenting on information in the record or setting forth reasons for disagreeing with the decision of the agency.

(C) If a parent chooses to place a statement in the child’s record, the public agency must, as long as the record or contested portion of the record is maintained by the agency, disclose the parental statement regarding the contested portion to any party requesting the record.

(c) Release of Information. Public agencies obtain written parental consent before using personally identifiable information for any purpose other than meeting a requirement under these regulations or disclosing to anyone other than officials of participating agencies collecting or using information for the purposes of the activities described in these rules.

(i) Public agencies release information from educational records to participating agencies without formal parental approval only when the disclosure is consistent with all applicable federal statutes. Public agencies may release information without written parental consent to a receiving public agency or as the result of a court order or subpoena as long as parental notification requirements are met. (FERPA 34 CFR Part 99)

(ii) Each public agency keeps a record of parties obtaining access to educational records (except access by parents and authorized employees of the board) including the name of the party, the date of access, and the purpose of the authorized use.

(d) Confidentiality of Information. Public agencies protect the confidentiality of personally identifiable information at collection, storage, disclosure, and destruction stages and designate one person by position to assume responsibility for ensuring the confidentiality of any personally identifiable information.

(i) Any person collecting or using personally identifiable information receives training and instruction regarding policies and procedures set forth in this section.

(ii) Each public agency maintains for public inspection, a current list of the names and positions of employees who have access to personally identifiable information.

(e) Destruction and Retention of Educational Records. Each public agency must inform the parent(s) when personally identifiable information collected, maintained, or used under this section is no longer needed to provide educational services to the child and will be destroyed.

(i) An agency may retain information permanently unless the parent(s) requests it’s destruction.

(ii) If the parent(s) request destruction of their child’s educational records, the agency may keep a permanent record of the child's name, address, and phone number, grades, attendance record, classes attended, grade level completed, and year completed.

(f) Children's Rights. Parents represent their child with disabilities in all matters covered by these regulations. Any child who has reached the age of majority and has not been declared incompetent by a Wyoming Court is afforded the same rights as those of the parent(s).

Funding

Section 43. Distribution of Part B Funds. WDE distributes to LEAs and the IEU funds received by WDE under Part B of IDEA for services to children with disabilities. WDE distributes at least 75% of the funds received for children with disabilities ages six to 21, and 95% of the funds received for services to children with disabilities ages three through five.

(a) Distribution of Funds. Part B IDEA funds not distributed to public agencies are used by WDE for:

1. (i) administrative costs; and
2. (ii) direct or support services.

(b) Level of Funding. Each LEA's and IEU's Part B IDEA funding level is based on the agency's December 1 IDEA child count which includes:

1. (i) the number of children with disabilities receiving special education and related services enrolled in the agency;
2. (ii) the number of children with disabilities enrolled simultaneously in the public agency and a private education program; and
3. (iii) the number of children placed in out-of-district programs by the public agency.

(c) Reallocation of Funds. If WDE determines that an LEA or IEU is adequately providing FAPE with state and local funds to all children with disabilities residing in the jurisdiction of the agency, and the agency chooses not to accept Part B funds, WDE may:

1. (i) use those funds to ensure FAPE to children with disabilities residing in the jurisdiction of the public agency either directly or by contract.
2. (ii) reallocate those funds to other LEAs or the IEU within Wyoming.

(d) Nonqualifying Agencies. WDE does not distribute funds to an LEA or IEU during a particular fiscal year if the agency:

1. (i) does not have an approved Part B application for that fiscal year;
2. (ii) is entitled to less than $7,500 for that fiscal year;

(iii) is unable or unwilling to establish and maintain FAPE in the least restrictive environment;

(iv) is unable or unwilling to enter into a cooperative agreement with other public agencies to establish and maintain FAPE for children with disabilities; or

(v) has failed to develop a satisfactory corrective action plan to eliminate compliance deficiencies found through WDE monitoring or through a complaint investigation.

Section 44. Obtaining Public Agency Part B Funds. Each LEA and IEU eligible for Part B IDEA funds must submit an annual application to WDE which includes the requirements and assurances outlined in Part B of IDEA.

(a) Consolidated Applications. When an agency’s application would generate less than $7,500 in Part B IDEA funds, the LEA or IEU is eligible to receive Part B funds only if the agency submits a consolidated application.

(i) LEAs and IEUs participating in a consolidated application are jointly responsible for implementing FAPE for children with disabilities in each participating agency. Non-compliance of one participating agency with these rules constitutes the non-compliance of all.

(ii) Each consolidated application must designate a fiscal agent for the application.

(iii) Each consolidated application must assure that agencies maintain records to show that each LEA and IEU uses funds provided under Part B IDEA only for costs which meet excess cost requirements and are directly attributable to the education of children with disabilities.

(b) Application Approval Process. WDE reviews each agency application for Part B funds.

(i) If WDE finds that an agency’s application meets requirements, WDE approves the local application (including requirements in EDGAR 76.651 through 76.662).

(ii) If WDE finds that an agency’s application fails to meet one or more requirements, WDE provides the agency with an opportunity to submit further information. If the agency fails to provide the required information, WDE notifies the agency of intent to disapprove the application.

(A) An LEA or IEU may request a hearing from the State Superintendent within 30 calendar days of receipt of written notice of intent to disapprove the agency’s Part B application.

(B) Within 30 calendar days of receiving an agency request for a hearing, the State Superintendent holds a hearing on the application and reviews the case.

(C) No later than ten calendar days after a hearing, the State Superintendent issues a written ruling, including findings of fact and reasons for the ruling.

(I) If the State Superintendent determines that disapproval is contrary to state or federal statutes or regulations governing Part B of IDEA, the State Superintendent rescinds the disapproval action.

(II) If the State Superintendent does not rescind the disapproval action, the public agency may appeal to the U.S. Secretary of Education within 20 calendar days after notification of the results of the State Superintendent’s review. When supported by substantial evidence, the WDE findings are final.

(III) Subsequent to review of an appeal submitted to the U.S. Secretary of Education, if a local agency feels aggrieved by the findings and/or orders of either the State Superintendent or the U.S. Secretary of Education, the agency may appeal to a district court of the State of Wyoming pursuant to Rule 12 of the Wyoming Rules of Appellate Procedures or may bring a civil action in the United States District Court for Wyoming under IDEA.

(D) WDE makes available for review all records pertaining to any review or appeal.

(c) Excess Cost Requirement. Excess costs are special education costs of an LEA and IEU above the minimum average amount of state and local funds spent for regular education.

(i) Each LEA and IEU must, on average, spend at least the minimum average amount of state and local money for the education of its children with disabilities as it spends for children without disabilities.

(ii) LEAs and IEUs must use state and local funds to provide services to children with disabilities receiving IDEA funds which, taken as a whole, are at least comparable to services provided to non-disabled children.

(iii) LEAs and IEUs must maintain records which demonstrate that the agency has not supplanted state and local funds with Part B IDEA funds.

Section 45. Recovery of Funds for Ineligible Children. When an LEA or IEU receives Part B funds for a child erroneously classified as eligible under these rules, WDE will recover funds in the following manner:

(a) When a public agency has counted an ineligible child, the agency immediately notifies WDE in writing.

(b) WDE subsequently notifies the U.S. Department of Education and makes necessary changes in the State’s child count report.

(c) If Part B funds for the ineligible child have been distributed to the LEA or IEU, WDE notifies the agency that reallocation is necessary and forwards a voucher requesting return of funds made available for services to the erroneously counted child.

Section 46. Funding for Children Voluntarily Enrolled in Private Agencies. Each LEA or IEU allocates funds for special education and related services for children enrolled in private schools or private education programs.

(a) Each LEA and IEU allocates funds at least equal to the number of children with disabilities within the agency’s jurisdiction who are voluntarily enrolled in private education programs multiplied by the per child amount of Part B funds distributed to the local agency by WDE.

(b) To the extent the cost of providing special education and related services to children with disabilities voluntarily enrolled full time in a private school does not exceed the allocated funds for providing such services, a LEA or IEU provides services to such children.

(i) If an LEA or IEU uses funds for its children in a particular attendance area or grade or age level, the agency ensures equitable opportunities for participation by children with disabilities voluntarily enrolled in private programs who:

(A) have the same needs as public agency children with disabilities to be served; and

(B) are in that same attendance area or age or grade level.

(ii) Special education and related services provided to private school children with disabilities are comparable to those received by public school children.

(c) An LEA or IEU maintains continuing administrative direction and control over funds and property that benefit children with disabilities voluntarily enrolled full time in private schools.

(i) An LEA or IEU may not use program funds for classes that are organized separately on the basis of school enrollment or religion of the children if:

(A) the classes are at the same site; or

(B) the classes include children enrolled in public schools and children enrolled in private schools.

(ii) An LEA or IEU may not use program funds to finance existing levels of instruction in a private school or to otherwise benefit the private school.

(iii) An LEA or IEU uses program funds to meet specific needs of children with disabilities who are enrolled in private schools rather than:

(A) the needs of a private school; or

(B) the general needs of children enrolled in a private school.

(iv) An LEA or IEU may use program funds to make personnel available in other than public facilities:

(A) to the extent necessary to provide equitable program benefits for children with disabilities enrolled in private programs; and

(B) if program benefits are not normally provided by the private school.

(v) An LEA or IEU may use program funds to pay for services of an employee of a private program if:

(A) the employee performs the services outside his or her regular hours of duty; and

(B) the employee performs the services under public agency supervision and control.

(vi) Each LEA or IEU ensures that program funds are not used for construction of private program facilities.

Section 47. Reimbursement under W.S. 21-13-309e. An LEA claims reimbursement under W.S. 21-13-309e for 85% of the expenditures incurred during the previous year (including extended school year programs) for services authorized in this section (for equipment under (g) (iii), an LEA may claim reimbursement in the current year, not more than monthly, on WDE forms).

(a) Reimbursement for Services. An LEA may claim reimbursement for screenings, evaluations, special education, and related services.

(i) Screenings include screening of hearing, vision and/or speech/language; and general screenings for children entering kindergarten or the public school system for the first time.

(ii) Evaluations include those procedures needed to determine eligibility and/or programming for special education and related services.

(iii) Related services include those listed in Section 20 of these rules.

(iv) W.S. 21-13-309e funds are not used to provide services to children who are placed in residential programs or group homes under W.S. 21-13-315, unless the court order designates the LEA as financially responsible.

(b) Reimbursement for Certified or Licensed Employees. LEAs receive reimbursement for salaries and employee benefits paid to certified or licensed personnel who provide direct or consultive services for children with disabilities.

(i) Reimbursement is allowed for the following personnel: adaptive physical education teachers, audiologists, directors of special education, educational diagnosticians, guidance counselors, occupational therapists, physical therapists, psychological technicians, school nurses, school psychologists, school social workers, special education teachers and speech pathologists who, according to the policies of the local board of trustees, were employed by the agency during the previous year.

(ii) Each LEA may receive reimbursement for up to one full time equivalent (FTE)

Director of Special Education. When the FTE is split, one person is designated as the Director of Special Education.

(iii) All staff whose positions are authorized in this section must meet certification standards established by the Professional Teaching Standards Board.

(iv) Occupational therapists, occupational therapy assistants, and physical therapists must be licensed to practice in the State of Wyoming. Occupational therapist, occupational therapy assistants, and physical therapists who are staff members of an agency must register annually with WDE on approved forms.

(v) Each LEA may receive reimbursement for up to two (2) FTE ERC professional staff who are certified in one of the areas listed in (i) above.

(vi) Each LEA is reimbursed for a fractional part of the employee’s salary and benefits, based on the amount of time the employee devotes to special education.

(c) Reimbursement for Classified Employees and Paraprofessionals. LEAs receive reimbursement for salaries and employee benefits paid to either a secretary or materials clerk and to special education paraprofessionals employed as staff members or via contract.

(i) Special education paraprofessionals include teaching assistants or classroom aides, job coaches, interpreters, hearing and vision technicians, and related service aides.

(ii) Reimbursement is for the fractional part of the employee’s salary and benefits, based on the amount of time the paraprofessional devotes to special education and/or related services.

(d) Reimbursement for Staff Travel for Direct Services to Children with Disabilities. LEA staff members who use personal vehicles to travel may be reimbursed for mileage expenses.

(i) Reimbursable expenses include those for:

(A) direct services to children with disabilities;

(B) evaluation services to children suspected of being disabled; and

(C) consultant services to teachers and parents of children with disabilities.

(ii) Reimbursement rates are based on policies of each LEA’s board of trustees and calculated from official map mileage or odometer readings.

(e) Other Transportation Reimbursement. LEAs receive reimbursement for transportation provided as a related service.

(i) When an LEA contracts for transportation (as a related service) for a child with a disability and the transportation is provided through use of personal vehicles, the LEA assures that:

(A) transportation is a related service in the child's IEP;

(B) the contractor has a current Wyoming driver's license;

(C) the contractor who transports a child with a disability has insurance that meets minimum requirements of the State of Wyoming;

(D) if a contractor transports a child who is not his or her own, the LEA obtains a certified copy of the contractor's Driver Record Information from the Motor Vehicle Division of the Wyoming Department of Revenue and Taxation and confirms that the contractor's driver's license is not currently canceled, denied, suspended or revoked, and has not been mandatorily suspended or revoked within the last five years; and

(E) the vehicle to be used to transport a child meets all safety requirements as provided by Wyoming statutes and such other safety requirements as deemed necessary by the LEA.

(ii) Travel expenditures associated with placement of a child out-of-district or out-of-state are allowed in the following circumstances:

(A) when the child must be transported to and from the receiving agency (beginning and end of school year, holidays, emergency situations);

(B) when the parent(s) of a child and/or member(s) of the LEA's special education staff accompany the child to or from the receiving agency;

(C) when the parent(s) of a child and/or member(s) of the LEA's special education staff travel to the receiving agency to:

(I) participate in meetings concerning the on-going assessment of the child's performance;

(II) participate in IEP Team meetings to review and revise the child's IEP;

(III) conduct annual on-site monitoring to evaluate the child's educational program and reconsider appropriateness of the child's placement;

(IV) participate in other activities authorized by the IEP Team; such activities must be included in the written record of IEP Team meetings and included in the child's IEP.

(D) reimbursement is allowed for the use of personal or LEA vehicles, common carriers (including public transportation buses, airlines, and taxis), and food and lodging;

(I) when vehicles are used, reimbursement for mileage does not exceed rates authorized under W. S. 9-3-103; travel reimbursement is based on official map mileage, odometer readings or the cost of airfare, whichever is lowest;

(II) expenditures are documented by original vendor receipts; and (E) out-of-district and out-of-state travel by LEA personnel for which reimbursement is claimed under this section may occur anytime during the year, provided the child on whose behalf the travel is conducted is being considered for placement in or is enrolled in an out-of-district or out-of-state residential programs.

(f) Reimbursement for Residential Placements. LEAs receive reimbursement for contractual costs incurred by an LEA to provide tuition, room and board, related services, and other services authorized in these rules for children with disabilities placed by an LEA in other education agencies.

(i) An LEA claims 85% reimbursement of the amount spent during the previous fiscal year for each child in a residential out-of-district or out-of-state placement if the child was placed by the LEA for educational purposes. The LEA submits to WDE written justification for each out-of-state placement including:

(A) a copy of IEP Team minutes for each child for whom application is made for out-of-state placements;

(B) a list of placements considered for each child; and

(C) a signed verification that the child cannot be appropriately served in a school, facility or program within the state.

(ii) If an agency fails to provide justification, WDE reimburses the agency for 80% of the amount spent for the child’s out-of-state placement for the previous fiscal year.

(g) Reimbursement for Instructional Materials and Equipment. Each LEA receives an annual allocation of $700 per FTE serving children with disabilities (licensed or certified professional staff positions) for classroom and program costs for children with disabilities.

(i) Staff positions less than one FTE are reimbursed proportionately.

(ii) Special Education Directors, ERC staff, secretaries, media clerks, and paraprofessionals do not generate the annual $700 entitlement.

(iii) For individual children, An LEA may receive reimbursement above and beyond the $700 entitlement, when:

(A) an IEP Team determines that a child with a disability requires instructional materials, or special equipment devices to benefit from special education; or

(B) an LEA requires special instructional materials or special equipment to evaluate a child suspected of having a disability.

(iv) An agency may be reimbursed a maximum of $1500 annually for the total cost of repair and maintenance of all instructional equipment and special equipment devices purchased with W.S. 21-13-309e funds.

(h) Appeals Regarding Reimbursement. When an LEA is dissatisfied with decisions made by the WDE concerning failure of the LEA to comply with requirements of these rules and the WDE decision affects LEA reimbursement for expenditures under W.S. 21-13-309e, the LEA may appeal in writing to the State Superintendent. The State Superintendent shall review the appeal and render a written decision within a reasonable period of time.

Section 48. Contracted Services. LEAs may contract for services for children with disabilities or children suspected of having disabilities, including services provided by people who are not agency employees or by employees of the agency beyond their existing employment contract.

(a) General Contracting Procedures. For each contract negotiated under W.S. 21-13-309e the LEA's Special Education Director writes a contract on WDE approved forms, coordinates contracted services, and takes steps to ensure that:

(i) all individuals and organizations with whom services are contracted have access to a copy of and comply with these rules;

(ii) each contract is signed by the chairperson or designee of the governing board of the contractor and by the clerk and the chairperson of the LEA's board of trustees (if a board has so authorized, a designee of the LEA may sign in lieu of the board clerk and chairperson);

(iii) all contracted services are subject to procedural safeguards, parental notice, and consent and other due process rights;

(iv) all contracted services for a child with a disability are recorded in IEP Team meeting minutes and in the child's IEP prior to delivery of services;

(v) each contract for out-of-district and out-of-state placement is written for only one child;

(vi) financial arrangements are clear, including:

(A) reimbursement for contracted services does not exceed actual costs; no charge is made for any service that is not rendered by a contractor;

(B) payment for services contracted with individuals or agencies is made only after services have been provided, except that, subject to the policy of the LEA's board of trustees, an LEA may pay a reasonable portion of the contract costs prior to delivery if the contractor is another Wyoming school district or a BOCES; and

(C) contracts do not overlap State of Wyoming fiscal years (July 1-June 30);

(vii) contracted services are provided by appropriately certified, licensed or registered individuals.

(A) Individuals who provide services in Wyoming meet certification standards established by Professional Teaching Standards Board or are licensed by the State of Wyoming to provide services. Occupational therapists and physical therapists are licensed by the State of Wyoming.

(B) Individuals who provide services outside Wyoming meet certification or licensure standards of the state in which the individual is located. If such standards do not exist, Wyoming standards apply.

(C) When the contractor is a Wyoming mental health center, the center is licensed by the Wyoming Department of Health and services are rendered by mental health professionals. The LEA receives in writing, assurance from the mental health center that:

(I) staff members of the mental health center will not render services in excess of each professional’s qualifications, the qualifications of the supervisor, or the license of the mental health center; and

(II) the mental health center maintains full liability insurance coverage for all professional staff members.

(b) Contracts for Services Provided by Personnel Outside the LEA. LEAs may contract for evaluation or special education and related services to be provided by personnel who are not staff members of the LEA; such services are provided:

(i) within the LEA. Reimbursement under W.S. 21-13-309e is allowed for the service provided and for necessary travel, food, and lodging incurred by the provider.

(ii) outside the district or state. Reimbursement under W.S. 21-13-309e is allowed for the service provided and for necessary travel, food, and lodging incurred by the child, the child’s parent(s), and/or member(s) of the agency’s special education staff who accompany the child.

(c) Contracts for Homebound, Hospital, or Residential Placements. Reimbursements are allowed for contracts with individual(s) or agencies to:

(i) conduct evaluations in a homebound, hospital, or residential setting of a child suspected of having a disability or of a child with a disability in accordance with the child’s multidisciplinary evaluation plan; or

(ii) provide special education and related services to a child with a disability in a homebound, hospital, or residential setting in compliance with the child’s IEP.

(iii) An LEA may not use provisions of this section to delay or avoid establishing within the LEA special education and related services needed by children with disabilities.

(d) Contracts for Technical Assistance and Program Evaluation. Reimbursements are allowed for contracts for technical assistance and/or program evaluation of an LEA’s services for children with disabilities. This does not include direct services to children.

(e) Reporting Contracts. Quarterly, each LEA notifies WDE of new contracts established during the quarter which exceed $1,000.

(i) Written notification includes:

(A) the name of the contracting agency or individual; (B) the amount of the contract; (C) services to be provided through the contract; and (D) date(s) of contracted services.

(ii) LEAs may expend up to $1,000 for services without establishing a formal contract, unless the LEA requires written contracts for services in the $0-$1,000 cost range.

(iii) LEAs do not notify WDE when contracts involve:

(A) services rendered by staff members of the LEA unless the service is beyond those outlined in their regular contract; (B) travel by staff members of the LEA; (C) purchase from the agency's $700/FTE entitlement for classroom and program costs; or (D) repair and maintenance of instructional equipment purchased with W.S. 21-13-309e funds.

APPENDIX A

Definitions

"adaptive behavior" means the degree to which a child satisfactorily meets culturally imposed expectations for personal and social responsibilities.

"age of majority" means 18 years of age as is defined by state law.

"assistive technology device" means any item, special equipment, or product system, acquired commercially, modified, or customized, and designated in a child's IEP used to increase, maintain, or improve functioning of a child with a disability.

"at no cost" means that all specially designed instruction and related services are provided without charge, but does not preclude incidental fees which are normally charged to non-disabled children or their parents as a part of the regular education program.

"audiological services" (see related services)

"children with disabilities" means children with one or more of the following:

(i) autistic disability, deaf-blind disability, developmental disability, emotional disability, health disability, hearing disability, learning disability, mental disability, orthopedic disability, speech/language disability, traumatic brain injury, or visual disability; and

(ii) who, by reason thereof need special education and related services.

'compliance responsibility' means any responsibility or obligation established by or imposed under the provisions of W.S. 21-14-101 through 21-14-106, Part B of the Individuals with Disabilities Education Act (20 USC 1400-1485) and its implementing regulations (34 CFR 300), and these rules.

'CSPD' means Comprehensive System of Personnel Development.

'counseling services' (see related services)

'designee' means one who has been officially designated to carry out specifically named responsibilities. The designator maintains responsibility for action taken on his/her behalf.

'developmental period' means the period from birth through 21 years of age.

'direct service' means special education or related services provided directly to a child with a disability. 'Division of Developmental Disabilities' means the Wyoming Division of Developmental Disabilities, a division within the Wyoming Department of Health through which services for preschool children with disabilities are provided.

'dual enrollment' means a child enrolled in a non-public school who is also enrolled in a public school special education program part of the instructional day.

'early identification and assessment' (see related services)

'educational performance' means any area of education including: academic areas (reading, math, communications, etc.) and nonacademic areas (daily life activities, mobility, social interactions, etc.).

'evaluation' means procedures used to determine whether a child has a disability and the nature and extent of the special education and related services that the child needs. The term means procedures used selectively with an individual child and does not include basic tests administered to or procedures used with all children in a school, grade, or class.

'expulsion' means exclusion from educational activities for up to one year.

'extended school year' (ESY) means any extension of the school year beyond the traditional length of the school year for non-disabled children; during which services are provided for children with disabilities as required on their IEP. ESY may also include extension of the traditional school day or week.

'FAPE' means free appropriate public education.

'FERPA' means Family Education Rights Privacy Act.

"fiscal year" means the period beginning July 1 ending June 30 inclusive for state fiscal matters and October 1 ending September 30 inclusive for federal fiscal matters.

"free appropriate public education" means special education and related services which:

(i) are provided at public expense, under public supervision and direction, and without charge;

(ii) includes preschool (ages three through five), kindergarten, elementary school, and secondary school education in Wyoming;

(iii) are provided in conformity with an individualized educational program; and

(iv) meet the standards of the Wyoming Education Code as amended, these rules, and IDEA.

"foundation program" (W.S. 21-13-101 through W.S. 21-13-316) means the minimum level of educational services and facilities which is to be made available to each district from the required local effort and the public foundation program account.

"IDEA" means Individuals with Disabilities Education Act.

"IEP" means Individual Educational Program.

"IEU" means Intermediate Education Unit and includes sub-contract agencies such as regional developmental preschool programs.

"LEA" means Local Education Agency or school district.

"LRE" means least restrictive environment.

"least restrictive environment" means that to the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children without disabilities, and that special classes, separate schooling or other removal from the regular educational environment occurs only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

"medical services" (see related services)

"native language" when used with reference to a person of limited English speaking ability, means the language normally used by that person, or in the case of a child, the language normally used by the parent(s) of the child.

"occupational therapy services" (see related services)

"parent" means a parent, guardian, or person acting as a parent of a child, or a surrogate parent who has been appointed in accordance with these regulations.

'parent counseling and training services' (see related services)

'Part B funds' means Federal funds available through the Individuals with Disabilities Education Act.

'person acting as a parent of a child' means relative(s) of the child or private individuals allowed to act as parents of a child by the child's natural parents or guardians. It does not include any persons or agencies supported in whole or part by public funds to care for the child such as a foster parent. For example, a grandparent, neighbor, governess, friend, or private individual caring for the child with the written approval of the child's natural parent or guardian would qualify as 'a person acting as a parent of a child.' If a child is represented by such a person, no surrogate parent is needed.

'physical education' means the development of physical and motor fitness, fundamental motor skills and patterns, and skills in aquatics, dance, and individual and group games and sports (including intramural and lifetime sports). The term includes special physical education and adapted physical education.

'physical therapy services' (see related services)

'primary caregiver' means a person who provides care to a preschool child in a public or private pre-school program or day care home.

'psychological services' (see related services)

'psychologist' means a person who has met state education agency approved or recognized certification, licensing, or registration.

'private school' means any non-public elementary or secondary school providing a basic academic education program for children and may include parochial, church, or religious schools, and homebased educational programs.

'public agency' means any political subdivision of the state which is responsible for providing education to children with disabilities. (Such as LEA, IEU, state institution, state agency, etc.)

'qualified personnel' means person(s) which have met state educational agency approved or recognized certification, licensing, or registration which apply to the area in which he/she is providing special education or related services.

'recreational services' (see related services)

'rehabilitation counseling services' (see related services)

'related services' means transportation and such developmental, corrective, and other supportive services determined by an IEP Team as required for a child with disabilities to benefit from special education. Such services include audiological services, counseling services, early identification and assessment of disabilities in children, medical services for diagnostic or evaluation purposes, physical and occupational therapy, psychological services, recreation, and speech pathology. The term also includes school health services, social work services in schools, and parent counseling and training.

(i) 'Audiological Services' include

(A) identification of children with hearing loss;

(B) determination of the range, nature, and degree of hearing loss, including referral for medical or other professional attention for the habilitation of hearing;

(C) provision of habilitative activities, such as language habilitation, auditory training, speech reading (lip-reading), hearing evaluation, and speech conservation, communication strategies, note-taking strategies, and use of interpreter (oral or manual);

(D) creation/administration of programs for prevention of hearing loss;

(E) counseling and guidance of children, parents, and teachers regarding hearing loss;

(F) determination of the child's need for group and individual amplification, consultation to the dispensing audiologist, and evaluation of the effectiveness of amplification;

(G) daily monitoring of individual or group amplification by a teacher of the child; and/or

(H) periodic monitoring (e.g., every two or three months) of individual and group amplification by a certified or licensed audiologist.

(ii) 'Counseling Services' means services provided by qualified social workers, clinical or school psychologist, guidance counselors, or other qualified personnel.

(iii) 'Early Identification and Assessment' means the implementation of a formal plan for identifying disability as early as possible in a child's life. Assessment is a multi-faceted process for systematically collecting information about a child.

(iv) 'Medical Services' means diagnostic/evaluation services provided by a licensed physician to determine a child's medically related disability.

(v) 'Occupational Therapy Services' include:

(A) improvement, development or restoration of functions impaired or lost through illness, injury, or deprivation;

(B) improvement of a child's ability to perform tasks for independent functioning when functions are impaired or lost; and/or

(C) prevention, through early intervention, of initial or further impairment or loss of function.

(vi) 'Parent Counseling and Training Services' mean assisting the parent(s) in understanding the special needs of their child and providing the parent(s) with information about child development.

(vii) 'Physical Therapy Service' means services provided by a qualified physical therapist as licensed in Wyoming or the state in which the service(s) is rendered.

(viii) 'Psychological Services' include:

(A) administration of psychological and educational tests and other assessment procedures;

(B) interpretation of assessment results;

(C) obtaining, integration of, and interpretation of information about child behavior and conditions relating to learning;

(D) consultation with other staff members in planning school programs to meet the special needs of children as indicated by psychological tests, interviews, and behavioral evaluations; and

(E) planning and management of a program of psychological services, including psychological counseling for children and parents.

(ix) 'Recreation Services' include:

(A) assessment of leisure function;

(B) therapeutic recreation services;

(C) recreation programs in schools and community agencies; and

(D) leisure education.

(B) planning and provision of health related care; and or

(C) liaison work with community agencies and community health care providers.

(xii) 'Social Work Services in Schools' include:

(A) preparation of a social or developmental history on a disabled child or a child suspected of being disabled;

(B) group and individual counseling with the child and family;

(C) working with those problems in a child's living situation (home, school, and community) that affect the child's adjustment in school; and

(D) mobilization of school and community resources to enable the child to receive maximum benefit from his or her educational program.

(xiii) 'Speech Pathology Services' include:

(A) identification of children with speech or language disorders;

(B) diagnosis and appraisal of specific speech or language disorders;

(C) referral for medical or other professional attention necessary for the habilitation of speech or language disorders;

(D) provision of speech and language services for the habilitation or prevention of communication disorders; and

(E) counseling and guidance of parents, children, and teachers regarding speech and language disorders.

(xiv) 'Transition Services' means a coordinated set of activities for a child, designed within an outcome-oriented process, which promotes movement from school to post-school activities, including post-secondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation. The coordinated set of activities is based on an individual child's needs, taking into account the child's preferences and interests, and includes instruction, community experiences, the development of employment and other post-school adult living objectives, and, when appropriate, acquisition of daily living skills and functional vocational evaluation.

(xv) 'Transportation Services' for disabled children include:

(A) travel to and from school and between schools;

(B) travel in and around school buildings; and

(C) specialized equipment (such as special or adapted buses, lifts, and ramps) if required to provide special transportation for a disabled child.

(This list of related services is not exhaustive; related services may include other developmental, corrective, or supportive services required to assist a child with disabilities to benefit from special education.)

'related service aide' means paraprofessionals who work under the supervision of a related service professional.

'resident of district' means that the parent, guardian, or person acting as a parent of a child with disabilities has established a domicile in the school district in which the child is enrolled.

'school health services' (see related services)

'social work services in schools' (see related services)

'special education' means specially designed instruction, at no cost to the parent, to meet the unique needs of a child with disabilities, including classroom instruction, instruction in physical education, home instruction, and instruction in hospitals and institutions, or in other settings.

(i) The term includes speech pathology, or any related service, if the service consists of specially designed instruction, at no cost to the parents, to meet the unique needs of the child with disabilities.

(ii) The term also includes vocational education if it consists of specially designed instruction, at no cost to the parents, to meet the unique needs of a child with disabilities.

'special equipment' means any specially designed item, piece of equipment or product acquired commercially, modified or customized, and designated in a child's IEP, used to increase, maintain, or improve the functioning of a child with a disability.

'specially designed instruction' means planned and sequenced instruction that is based on the unique educational needs of a child with a disability, designed to assist the child in achieving specific written objectives developed by an IEP Team.

'speech pathology services' (see related services)

'summer school' means a program during summer which provides supplementary services not required on the child's IEP (different than extended school year services).

'State Advisory Panel' refers to an advisory body to the State Superintendent of Public Instruction as required by IDEA, regarding the statewide provision of special education and related services.

'suspension' means disciplinary removal from school for a period of time not exceeding ten days.

'surrogate parent' means an individual appointed to protect the rights of the child who may represent the child in all matters relating to a free appropriate public education including identification, evaluation and educational placement.

'transition services' (see related services)

'transportation services' (see related services)

'ward of the state' means that the state has assumed the legal responsibility to make decisions concerning the child's education under appropriate state law. However, if the state is the custodian of the child, but the parent retains the right to make decisions concerning education, the child is not a 'ward of the state' and no surrogate parent is needed.

'work day' means teacher contract days during the normal school year. Because local agencies do not contract during the summer with all the staff required for the complete IEP process, 'work day' does not include summer school or extended school year days.

APPENDIX B

Wyoming's Severe Discrepancy Formula

The assessment of academic functioning level must include individually administered norm-referenced tests that are highly reliable and valid (see Salvia & Ysseldyke, 1981; 1985) and administered by an individual specifically trained to administer and interpret the instrument. Criterion-referenced tests, informal measures, work samples, classroom observations, and the child's educational history should be used as needed to corroborate norm-referenced test scores. Achievement measures should be administered in each of the areas of the suspected disability (core achievement areas: oral expression, listening comprehension, written expression, basic reading skills, reading comprehension, mathematical calculations, or mathematical reasoning).

A child whose primary disability is a learning disability must demonstrate a severe discrepancy between current achievement level and expected achievement level. Expected achievement is based on the child's assessed intellectual standard scores in one or more core achievement areas that are 22 (15 upon re-evaluation) standard score points or more below the anticipated achievement level as predicted by a measure of intellectual functioning.

Notes of Clarification

1. 1. In all cases achievement standard scores should be based on age norms rather than grade norms.

2. 2. The severe discrepancy criterion should not be viewed as a rigid cut-off. The evaluator should consider factors such as the standard errors of measurement of the instruments, the child's behavior during the evaluation, the cultural, environmental, and language background of the child, and other individual characteristics of the child in determining if a severe discrepancy exists. If a child does not meet the criterion for a severe discrepancy, yet the IEP Team nonetheless determines the child is learning disabled, a specific written justification must be provided for such a decision, including the basis for concluding that a severe discrepancy exists, documentation of the child's inability to progress adequately in one or more basic academic areas in the regular class setting, and other related information.

3. 3. When using the Wechsler Intelligence Scale for Children-Revised, the Full Scale Score should generally be used as an indicator of potential. However, if the Verbal and Performance IQ Scores differ significantly, the Full Scale Score is less useful for documenting potential. (In such cases, the difference between Verbal and Performance Scores should be statistically significant and diagnostically meaningful). When such a difference exists, the higher score may be used as an estimate of potential.

The Table on page 91 should be used to determine the child's expected achievement level. This table, which was formulated by Woodcock (1985), takes into account the correlation between the intellectual and achievement measures being used as well as regression toward the mean. To use this table, the following steps should be followed:

Step 1: Determine the correlation between the intellectual and achievement measures being used. Correlations between such tests are generally available in the extensive research literature on this topic.

IF THE CORRELATION BETWEEN INTELLECTUAL AND ACHIEVEMENT MEASURES IS NOT KNOWN, IT IS RECOMMENDED THAT .65 BE USED AS AN ADEQUATE MEDIAN CORRELATION BETWEEN SUCH MEASURES.

Step 2: Locate the child's intellectual standard score in the first column (X) of the Table located on page 91 titled Expected Achievement Levels With Correction For Regression (STD. Scores).

Step 3: Follow that row determined in Step 2 to the column with the correlation (rxy) value closest to the correlation between the chosen measures of intellectual functioning and achievement.

(For example, the correlation between the WISC-R and the Woodcock-Johnson Reading Cluster is approximately .65. If a child scores 105 on the WISC-R, his or her expected achievement level is 103, accounting for regression toward the mean.)

Step 4: Subtract the actual achievement standard score from the expected score. (For example, if the child in Step 3 had an expected achievement level of 103 and an actual WJTA Reading Cluster standard score of 81, the 22 point difference between these scores is indicative of a severe discrepancy.)

(iii) annually documenting the current numbers and projected numbers of leadership, special education, and related services personnel needed within the next five years by public agencies, including:

(A) SEA, LEA, and IEU leadership personnel; and

(B) LEA and IEU providers with transitional certification; and

(iv) annually documenting the number of students enrolled or graduating with qualifications in special education or related services from the University of Wyoming.

(g) Implementation of the IEP. The public agency initiates special education and related services included in the IEP as soon as possible after receipt by the Special Education Director (or preschool administrator) or designee of written parental consent for initial placement.

(i) If written parental consent is received during the summer recess and extended school year services are not included in the IEP, the special education and related services described in the IEP are initiated as soon as possible after the start of the public agency's regular school year.

(ii) the public agency is unable to locate a parent or guardian or a person acting as a parent through telephone calls and visits and the agency receives no response within 20 work days to a certified letter (return receipt required) mailed to the last known address of the parent or guardian; or

(iii) a parent or guardian voluntarily states in writing, that the public agency has permission to appoint a surrogate. (The parent may revoke this permission at any time.)

(x) 'Rehabilitation Counseling Services' means services provided by qualified personnel in individual or group sessions that focus specifically on career development, employment preparation, achieving independence, and integration in the workplace and community of a student with a disability. The time also includes vocational rehabilitation services provided to students with disabilities by vocational rehabilitation programs funded under the Rehabilitation Act of 1973, as amended.

(xi) 'School Health Services' means services provided by a certified school nurse or other qualified person; services may include:

(A) health related assessment/evaluation;