707 KAR 1:290. Free appropriate public education

Link to law: http://www.lrc.ky.gov/kar/707/001/290.htm
Published: 2015

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      707 KAR 1:290. Free appropriate public



      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


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



      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



      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.)