707 KAR 1:290. Free appropriate public
education.
RELATES TO: KRS 157.200, 157.220,
157.224, 157.226, 157.230, 157.250, 157.260, 157.270, 157.280, 157.285,
157.290, 157.360, 158.030, 158.100, 158.150, 160.290, 34 C.F.R. 300.1-300.818,
20 U.S.C., 1400-1419, 6398
STATUTORY AUTHORITY: KRS 156.070(1),
156.160, 157.220, 157.224, 157.260, 167.015
NECESSITY, FUNCTION, AND CONFORMITY: KRS
157.200 to 157.290 establish the statutory framework for special education
programs in local school districts. KRS 157.220 requires the Kentucky Board of
Education to adopt rules and administrative regulations for proper
administration of these programs. KRS 156.035 authorizes the Kentucky Board of
Education to implement any act of Congress appropriating funds to the state and
to provide for the proper apportionment and disbursement of these funds in accordance
with state and federal laws. 20 U.S.C. 1407 and 1412, and 34 C.F.R. 300.100 require
that policies and procedures be adopted to assure the apportionment and disbursement
of federal funds for exceptional children programs in accordance with
applicable laws. This administrative regulation establishes requirements for
providing a free, appropriate, public education for children identified as
eligible for special education services.
Section 1. Free Appropriate Public
Education. (1) AN LEA shall make a free appropriate public education (FAPE)
available to all children with disabilities aged three (3) to twenty-one (21)
residing within its district’s boundaries who have not received a high school
diploma, including children with disabilities who have been suspended or
expelled for more than ten (10) school days in a school year. FAPE shall be
provided to each child with a disability even though the child has not failed
or been retained in a course and is advancing from grade to grade based on the
child’s unique needs and not on the child’s disability. An LEA shall not be
required to provide FAPE to a student eighteen (18) years old or older, who is
placed in an adult correctional facility if, in the educational placement prior
to placement in the correctional facility, the student was not identified as a
child with a disability and did not have an IEP.
(2) AN LEA shall be responsible for
ensuring the rights and protections under 707 KAR Chapter 1 are given to
children with disabilities referred to or placed in private schools and
facilities by that LEA.
(3) State agencies charged with the
responsibility of providing educational services to children with disabilities
within their care shall provide those services in accordance with 707 KAR
Chapter 1.
(4) If payment for services under 707 KAR
Chapter 1 is to be provided by an agency other than the LEA, the LEA shall
ensure the services are provided without delay even if there is a delay in the
payment for those services.
Section 2. Residential Placement. If it
is determined necessary by an ARC to place a child with a disability for
educational purposes in a private residential educational program, the program,
including nonmedical care and room and board, shall be provided by the LEA
which convened the ARC. AN LEA may fulfill its responsibility under this
section by providing the services directly or by contracting for those
services.
Section 3. Proper Functioning of Hearing
Aids. An LEA shall ensure that a hearing aid worn in school by a child with a
hearing impairment is functioning properly. A LEA shall ensure that the external
components of surgically implanted devices of children with disabilities are
functioning properly; however, an LEA shall not be responsible for the
postsurgical maintenance, programming, or replacement of the medical device
that has been surgically implanted.
Section 4. Program Options. An LEA shall
ensure that all children with disabilities have available to them the variety
of educational programs, services, and curriculum as described in the Kentucky
Program of Studies, 704 KAR 3:303, that is available to children without
disabilities. These educational services may include art, music, industrial
arts, consumer and family science education, career and technical education,
and other educational services.
Section 5. Nonacademic Services. An LEA
shall take steps, including the provision of supplementary aids and services as
determined appropriate and necessary by the child’s ARC, to provide all
children with disabilities the nonacademic and extracurricular services and
activities that give children with disabilities an equal opportunity for
participation in those services and activities. These services and activities
may include:
(1) Counseling services;
(2) Athletics;
(3) Transportation;
(4) Health services;
(5) Recreational activities;
(6) Special interest groups or clubs
sponsored by the LEA;
(7) Referrals to agencies that provide
assistance to individuals with disabilities; and
(8) Employment of students, including
both employment by the LEA and assistance in making outside employment
available.
Section 6. Physical Education. (1) Unless
the provisions of subsection (2) of this section apply, an LEA shall make available
to every child with a disability:
(a) Physical education services,
specially designed if prescribed in the child's IEP; or
(b) The opportunity to participate in the
regular physical education program available to children without disabilities.
(2) An LEA is not required to make
available physical education services to a child with a disability if:
(a) The child is enrolled full time in a
separate facility in which case the agency responsible for the education of the
child in that facility shall ensure the child receives appropriate physical
education; or
(b) The LEA enrolls children without
disabilities and does not provide physical education to children without
disabilities in the same grades.
Section 7. Assistive Technology. (1) AN
LEA shall ensure that assistive technology devices or assistive technology
services, or both, as defined in 707 KAR 1:280(3) or (4) are made available to
a child with a disability if required as part of the child’s special education,
related services, or supplemental aids and services.
(2) On a case-by-case basis, the use of
school-purchased assistive technology devices in a child’s home or in other
settings is required if the ARC determines that the child needs access to those
devices in order to receive FAPE.
Section 8. Extended School Year Services.
AN LEA shall ensure that extended school year services are available to each
child with a disability, as necessary, to provide FAPE. The determination of
the need for extended year services shall be made on an individual basis. In
making this determination, the LEA shall not:
(1) Limit the provision of extended year
services to a particular category(s) of disability; or
(2) Unilaterally limit the type, amount,
or duration of those services.
Section 9. Prohibition of Mandatory
Medication. LEA personnel shall not require a child to obtain a prescription
for a substance covered by schedules I, II, III, IV, or V the Controlled
Substance Act (21 U.S.C. 812(c)), as a condition of attendance in school,
receiving an evaluation under 707 KAR 1:300, or receiving services under 707
KAR Chapter 1. However, school personnel may consult or share classroom-based
observations with parents or guardians regarding student’s academic,
functional, or behavioral performance or regarding the need for evaluation to
determine eligibility for special education services.
Section 10. Records Regarding Migratory
Children with Disabilities. A LEA shall to transfer health and education
records on migratory children with disabilities who move to other states in
accordance with the No Child Left Behind Act, 20 U.S.C. 6398. (26 Ky.R. 2131; Am.
27 Ky.R. 499; eff. 8-14-2000; 33 Ky.R. 3463; 34 Ky.R. 548; eff. 11-5-2007.)
