707 KAR 1:002. Definitions.
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
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 definitions for this chapter of administrative regulations
regarding special education.
Section 1. Definitions. (1)
"Admissions and release committee or "ARC" means a group of
individuals described in 707 KAR 1:320, Section 3, that is responsible for
developing, reviewing, or revising an individual education program (IEP) for a
child with a disability.
(2) "Adverse effect" means that
the progress of the child is impeded by the disability to the extent that the
educational performance is significantly and consistently below the level of
similar age peers.
(3) "Assistive technology
device" means any item, piece of equipment, or product system, whether
acquired commercially, off the shelf, modified, or customized, that is used to
increase, maintain, or improve the functional capabilities of a child with a
disability. The term does not mean a medical device that is surgically implanted,
or the replacement of such a device.
(4) "Assistive technology
service" means any service that directly assists a child with a disability
in the selection, acquisition, or use of an assistive technology device. This
term shall include:
(a) The evaluation of the needs of a
child with a disability, including a functional evaluation of the child in the
child’s customary environment;
(b) Purchasing, leasing, or otherwise
providing for the acquisition of assistive technology devices by children with
disabilities;
(c) Selecting, designing, fitting,
customizing, adapting, applying, maintaining, repairing, or replacing assistive
technology devices;
(d) Coordinating and using other
therapies, interventions, or services with assistive technology devices, like
those associated with existing education and rehabilitation plans and programs;
(e) Training or technical assistance for
a child with a disability or, if appropriate, that child's family; and
(f) Training or technical assistance for
professionals (including individuals providing education or rehabilitation
services), employers, or other individuals who provide services to, employ, or
are otherwise substantially involved in the major life functions of the child.
(5) "Autism" means a
developmental disability significantly affecting verbal and nonverbal
communication and social interaction, generally evident before age three (3)
that adversely affects a child’s educational performance. Other characteristics
often associated with autism are engagement in repetitive activities and stereotyped
movements, resistance to environmental change or change in daily routines, and
unusual responses to sensory experiences. The term shall not apply if a child’s
educational performance is adversely affected primarily because the child has
an emotional-behavior disability.
(6) "Business day" means Monday
through Friday except for federal and state holidays, unless a holiday is
specifically included in the designation of business day as in 707 KAR 1:370,
Section 1.
(7) "Caseload for special
classes" means the number of children with disabilities assigned to a
teacher of exceptional children for the purpose of providing individualized specially
designed instruction and related services in a special class setting.
(8) "Change of placement because of
disciplinary removals" means a change of placement occurs if:
(a) The removal is for more than ten (10)
consecutive schools days; or
(b) The child has been subjected to a
series of removals that constitute a pattern (which is determined on a
case-by-case basis) because:
1. The series of removals total more than
ten (10) school days in a school year;
2. The child’s behavior is substantially
similar to the child’s behavior in previous incidents that resulted in the
series of removals; and
3. Of additional factors, including the
length of each removal, the total amount of time the child has been removed,
and the proximity of the removals to one (1) another.
(9) "Child with a disability"
means a child evaluated in accordance with 707 KAR 1:300, as meeting the criteria
listed in the definitions in this section for autism, deaf-blindness,
developmental delay, emotional-behavior disability, hearing impairment, mental
disability, multiple disabilities, orthopedic impairment, other health impairment,
specific learning disability, speech or language impairment, traumatic brain
injury, or visual impairment which has an adverse effect on the child’s
educational performance and who, as a result, needs special education and
related services.
(10) "Class size for resource
classes" means the number of children with disabilities assigned to a
teacher of exceptional children per period, block, or the specified length of time
set by the individual school.
(11) "Collaboration" means, for
purposes of determining class size in 707 KAR 1:350, Section 2, a teacher of
exceptional children works with children with disabilities in the regular
classroom to provide specially-designed instruction and related services.
(12) "Complaint" means a
written allegation that a local education agency (LEA) has violated a
requirement of the Individuals with Disabilities Education Act (IDEA) or an
implementing administrative regulation, and the facts on which the statement is
based.
(13) "Compliance" means the
obligations of state or federal requirements are met.
(14) "Compliance monitoring
report" means a written description of the findings of an investigation,
like on-site monitoring, citing each requirement found in noncompliance.
(15) "Consent" means:
(a) A parent has been fully informed of all
information relevant to the activity for which consent is sought, in his native
language, or other mode of communication;
(b) A parent understands and agrees in
writing to the carrying out of the activity for which his consent is sought,
and the consent describes the activity and lists the records, if any, that will
be released and to whom;
(c) A parent understands that the
granting of consent is voluntary on the part of the parent and may be revoked
at any time; and
(d) If a parent revokes consent, that
revocation does not negate an action that has occurred after the consent was
given and before the consent was revoked.
(16) "Controlled substance"
means a drug or other substance identified under 21 U.S.C. Section 812(c).
(17) "Core academic subjects"
means English, reading or language arts, mathematics, science, foreign
language, civics and government, economics, arts, history, and geography.
(18) "Corrective action plan or "CAP"
means a written improvement plan describing activities and timelines, with
persons responsible for implementation, developed to correct identified areas
of noncompliance, including directives from the Kentucky Department of
Education, specifying actions to be taken to fulfill a legal obligation.
(19) "Course of study" means a
multiyear description of coursework from the student’s current school year to
the anticipated exit year designed to achieve the student’s desired postschool
goals.
(20) "Day" means calendar day
unless otherwise indicated as business day or school day.
(21) "Deaf-blindness" means
concomitant hearing and visual impairments that have an adverse effect on the
child’s education performance, the combination of which causes severe communication
and other developmental and educational needs that cannot be accommodated in
special education programs solely for children with deafness or children with
blindness, unless supplementary assistance is provided to address educational
needs resulting from the two (2) disabilities.
(22) "Developmental delay" or
"DD" means that a child within the ages of three (3) through eight
(8) has not acquired skills, or achieved commensurate with recognized
performance expectations for his age in one (1) or more of the following developmental
areas: cognition, communication, motor development, social-emotional development,
or self-help-adaptive behavior. Developmental delay includes a child who
demonstrates a measurable, verifiable discrepancy between expected performance
for the child’s chronological age and current level of performance. The
discrepancy shall be documented by:
(a) Scores of two (2) standard deviations
or more below the mean in one (1) of the areas listed above as obtained using
norm-referenced instruments and procedures;
(b) Scores of one and one-half (1 1/2)
standard deviations below the mean in two (2) or more of the areas listed above
using norm-referenced instruments and procedures; or
(c) The professional judgment of the ARC
that there is a significant atypical quality or pattern of development.
Professional judgment shall be used only where normal scores are inconclusive
and the ARC documents in a written report the reasons for concluding that a
child has a developmental delay.
(23) "Education records" means
records as defined in the Family Educational Rights and Privacy Act of 1974, 20
U.S.C. Section 1232g.
(24)(a) "Emotional-behavioral
disability" or "EBD" means that a child, when provided with
interventions to meet instructional and social-emotional needs, continues to
exhibit one (1) or more of the following, when compared to the child’s peer and
cultural reference groups, across settings, over a long period of time and to a
marked degree:
1. Severe deficits in social competence
or appropriate behavior which cause an inability to build or maintain satisfactory
interpersonal relationships with adults or peers;
2. Severe deficits in academic
performance which are not commensurate with the student’s ability level and are
not solely a result of intellectual, sensory, or other health factors but are
related to the child’s social-emotional problem;
3. A general pervasive mood of
unhappiness or depression; or
4. A tendency to develop physical
symptoms or fears associated with personal or school problems.
(b) This term does not apply to children
who display isolated (not necessarily one (1)) inappropriate behaviors that are
the result of willful, intentional, or wanton actions unless it is determined
through the evaluations process that the child does have an emotional-behavioral
disability.
(25) "Enforcement" means the
Kentucky Department of Education takes steps to ensure federal and state
special education requirements are implemented.
(26) "Extended school year
services" means specially designed instruction and related services that
are provided to a child with a disability beyond the normal school year in
accordance with the child’s IEP at no cost to the parents.
(27) "Free appropriate public
education" or "FAPE" means special education and related
services that:
(a) Are provided at public expense, under
public supervision and direction, and without charge;
(b) Meet the standards of the Kentucky
Department of Education included in 707 KAR Chapter 1 and the Program of Studies,
704 KAR 3:303, as appropriate;
(c) Include preschool, elementary school,
or secondary school education in the state; and
(d) Are provided in conformity with an
individual education program (IEP) that meets the requirements of 707 KAR
1:320.
(28) "Functional" means
activities and skills that are not considered academic or related to a child’s
academic achievement as measured on statewide assessments pursuant to 703 KAR
Chapter 5.
(29) "Hearing impairment", sometimes
referred to as "deaf" or "hard of hearing", means a hearing
loss that:
(a) May be mild to profound, unilateral
or bilateral, permanent or fluctuating, and is determined by:
1. An average pure-tone hearing loss in
the speech range (500Hz, 1000Hz, and 2000Hz) of at least 25dB in the better
ear;
2. An average pure-tone hearing loss in
the high-frequency range (2000Hz, 4000Hz, and 6000Hz) of at least 45dB in the
better ear; or
3. An average pure-tone unilateral
hearing loss in the speech range (500Hz, 1000Hz, and 2000Hz) of at least 60dB
in the impaired ear;
(b) Results in difficulty identifying
linguistic information through hearing; and
(c) Has an adverse effect on the child’s
educational performance.
(30) "High school diploma"
means the student has completed the required course of study with the minimum
number of credit hours as required by 704 KAR 3:305 and any applicable local
district requirements. "High school diploma" does not mean a
certificate of completion or a GED.
(31) "Home school" means for
purposes of 707 KAR Chapter 1 only, a private school primarily conducted in
one’s residence.
(32) "IDEA" means the Individuals
with Disabilities Education Act, 20 U.S.C. Section 1400 through 1450, as
amended.
(33) "Independent educational
evaluation" means an evaluation conducted by a qualified examiner who is
not employed by the LEA responsible for the education of the child in question.
(34) "Individual education
program" or "IEP" means a written statement for a child with a
disability that is developed, reviewed and revised in accordance with 707 KAR
1:320.
(35) "Interpreting services"
means, with respect to children who are deaf or hard of hearing, oral
transliteration services, cued language transliteration services, sign language
transliteration and interpreting services, and transcription services such as
communication access real-time translation (CART) C-Print and Type Well and
special interpreting services for children who are deaf-blind.
(36) "Local educational agency"
or "LEA" means a public local board of education or other legally
constituted public authority that has either administrative control or direction
of public elementary or secondary schools in a school district or other
political subdivision of the Commonwealth. LEA also means any other public institution
or agency, including the Kentucky School for the Blind (KSB) and the Kentucky
School for the Deaf (KSD), that is charged by state statute with the
responsibility of providing educational services to children with disabilities.
(37) "Mental disability" means
that a child has one (1) of the following:
(a) A mild mental disability (MMD) in
which:
1. Cognitive functioning is at least two
(2) but no more than three (3) standard deviations below the mean;
2. Adaptive behavior deficit is at least
two (2) standard deviations below the mean;
3. A severe deficit exists in overall
academic performance including acquisition, retention, and application of
knowledge; and
4. Manifestation is typically during the
developmental period; or
(b) A functional mental disability (FMD)
in which:
1. Cognitive functioning is at least
three (3) or more standard deviations below the mean;
2. Adaptive behavior deficits are at
least three (3) or more standard deviations below the mean;
3. A severe deficit exists in overall
academic performance including acquisition, retention, and application of
knowledge; and
4. Manifestation is typically during the
developmental period.
(38) "Monitoring" means
gathering and reviewing information to determine if a project or program meets
state and IDEA requirements including the implementation of corrective action
plans.
(39) "Multiple disabilities" or
"MD" means concomitant impairments that have an adverse effect on the
child’s educational performance, the combination of which causes severe
educational needs that cannot be accommodated in special education programs
solely for one (1) of the impairments. Examples of MD include mental disability-blindness,
and mental disability-orthopedic impairment. Multiple disabilities does not
mean deaf-blindness nor does it mean a speech or language impairment in
combination with another category of disability.
(40) "Native language" means,
if used in reference to an individual of limited English proficiency, the
following:
(a) The language normally used by that
individual, or, in the case of a child, the language normally used by the
parents of the child;
(b) In all direct contact with a child
(including evaluation of the child), the language normally used by the child in
the home or learning environment; or
(c) For an individual with deafness or
blindness, or for an individual with no written language, the mode of
communication that is normally used by the individual, such as sign language,
Braille, or oral communication.
(41) "Orthopedic impairment" or
"OI" means a severe orthopedic impairment that adversely affects a
child’s educational performance. The term includes:
(a) An Impairment caused by a congenital
anomaly such as clubfoot, or absence of some member;
(b) An Impairment caused by disease such
as poliomyelitis, or bone tuberculosis; and
(c) An impairment from other causes such
as cerebral palsy, amputations, and fractures or burns that causes contractures.
(42) "Other health impairment" or
"OHI" means having limited strength, vitality, or alertness,
including a heightened alertness to environmental stimuli, that results in
limited alertness with respect to the educational environment, that:
(a) Is due to a chronic or acute health
problem, such as acquired immune deficiency syndrome, asthma, attention deficit
disorder, attention deficit hyperactivity disorder, diabetes, epilepsy, a heart
condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever,
sickle cell anemia, Tourett syndrome, or tuberculosis; and
(b) Adversely affects a child’s
educational performance.
(43) "Parent" means:
(a) A biological or adoptive parent of a
child;
(b) A guardian generally authorized to
act as the child’s parent, or authorized to make educational decisions for the
child, but not the state if the child is a ward of the state;
(c) A person acting in the place of a
biological or adoptive parent such as a grandparent, stepparent, or other
relative with whom the child lives, or a person who is legally responsible for
the child’s welfare;
(d) A foster parent if the biological or
adoptive parents’ authority to make educational decisions on the child’s behalf
has been extinguished and the foster parent has an ongoing, long-term parental
relationship with the child, is willing to make the educational decisions
required of parents under 707 KAR Chapter 1, and has no interest that would
conflict with the interests of the child;
(e) A foster parent if the biological or
adoptive parents grant authority in writing for the foster parent to make
educational decisions on the child’s behalf, and the foster parent is willing
to make educational decisions required of parents under 707 KAR Chapter 1, and
has no interest that would conflict with the interests of the child; or
(f) A surrogate parent who has been appointed
in accordance with 707 KAR 1:340, Section 6.
(44) "Participating agency"
means a state or local agency other than the LEA that is financially and
legally responsible for providing transition services to a child with a
disability.
(45) "Personally identifiable
information" means information that includes the name of the child, the
child’s parents, or other family member, the address of the child, a personal
identifier, including the child’s Social Security number or student number, or
a list of personal characteristics or other information that would make it possible
to identify the child with reasonable certainty.
(46) "Postsecondary goals"
means those goals that a student hopes to achieve after leaving high school.
(47) "Private school children with
disabilities" means children with disabilities enrolled by their parents
in private elementary or secondary school as defined by IDEA regulations, 34
C.F.R. Part 300.13 and 300.36, and not children with disabilities enrolled in
private schools upon referral by a LEA.
(48) "Public expense" means
that the LEA either pays for the full cost of the services to meet the
requirements of 707 KAR Chapter 1 or ensures that the services are otherwise
provided at no cost to the parent. Nothing in these administrative regulations
shall relieve an insurer or similar third party from an otherwise valid obligation
to provide or to pay for services provided to a child with a disability.
(49) "Qualified personnel"
means personnel who meet the statutory or regulatory qualifications for each
respective profession currently applicable in this state.
(50) "Reasonable efforts to obtain
voluntary compliance" means active and ongoing efforts by the Kentucky
Department of Education through technical assistance and negotiation to arrive
at an acceptable corrective action plan and follow through on an agreed-upon
corrective action plan.
(51)(a) "Related services"
means transportation and such developmental, corrective, or supportive services
as are required to assist a child with a disability to benefit from special
education. It includes speech-language pathology and audiology services, interpreting
services, psychological services, physical and occupational therapy, recreation
including therapeutic recreation, early identification and assessment of
disabilities in children, counseling services including rehabilitation counseling,
orientation and mobility services, and medical services for diagnostic or
evaluation purposes.
(b) "Related services" also
means school health services and school nurse services, social work services in
school, and parent counseling and training.
(c) "Related services" do not
include a medical device that is surgically implanted, the optimization of that
device’s functioning (such as mapping) maintenance of that device, or the replacement
of that device.
(d) The definition of "related
services" does not:
1. Limit The responsibility of the LEA to
appropriately monitor and maintain medical devices that are needed to maintain
the health and safety of the child, including breathing, nutrition, or
operation of other bodily functions, while the child is transported to and from
school or is at school;
2. Prevent the routine checking of an
external component of a surgically implanted device to make sure it is
functioning properly; or
3. Limit The right of a child with a
surgically-implanted device to receive related services that are determined by
the ARC to be necessary for the child to receive FAPE.
(52) "Sanctions" means actions
such as technical assistance, consultation, or training, that are taken by the
Kentucky Department of Education in response to a LEA’s failure to comply with
the required standards in state and federal laws and administrative regulations.
(53) "School day" means any
day, including a partial day, that children are in attendance at school for
instructional purposes. School day means the same thing for all children in
school, including children with or without disabilities.
(54) "Serious bodily injury"
means bodily injury as defined in 18 U.S.C. Section 1365(h)(3).
(55) "Services plan" means a
written statement that describes the special education or related services that
the LEA will provide to a parentally-placed child with a disability enrolled in
a private school who has been designated to receive services, including the
location of the services and any transportation necessary that is developed in
accordance with 707 KAR 1:370.
(56) "Special education" means
specially designed instruction, at no cost to the parents, to meet the unique
needs of the child with a disability including instruction in the classroom, in
the home, in hospitals and institutions, and in other settings. Special
education means speech-language pathology services, (if the service is considered
special education rather than a related service), travel training, and
vocational education.
(57) "Special education mentor"
means individuals with exceptional expertise, experience, and certification in
special education administration or teaching granted the authority described in
KRS 157.197.
(58) "Specially-designed
instruction" means adapting as appropriate the content, methodology, or
delivery of instruction to address the unique needs of the child with a
disability and to ensure access of the child to the general curriculum included
in the Program of Studies, 704 KAR 3:303.
(59) "Specific learning disability"
or "LD" means a disorder that adversely affects the ability to
acquire, comprehend, or apply reading, mathematical, writing, reasoning,
listening, or speaking skills to the extent that specially designed instruction
is required to benefit from education. The specific learning disability (LD)
may include dyslexia, dyscalculia, dysgraphia, developmental aphasia, and perceptual/motor
disabilities. The term does not include deficits that are the result of other
primary determinant or disabling factors such as vision, hearing, motor
impairment, mental disability, emotional-behavioral disability, environmental
or economic disadvantaged, cultural factors, limited English proficiency, or
lack of relevant research-based instruction in the deficit area.
(60) "Speech or language
impairment" means a communication disorder, including stuttering, impaired
articulation, a language impairment, a voice impairment, delayed acquisition of
language, or an absence of language, that adversely affects a child’s
educational performance.
(61) "Supplementary aids and
services" means aids, services, and other supports that are provided in
regular education classes or other education-related settings to enable a child
with disabilities to be educated with nondisabled children to the maximum
extent appropriate in accordance with 707 KAR 1:350.
(62) "Transition services"
means a coordinated set of activities for a child with a disability that:
(a) Is designed to be within a
results-oriented process, that is focused on improving the academic and
functional achievement of the child with a disability to facilitate the child’s
movement from school to post-school activities, including postsecondary
education, vocational training, integrated employment (including supported employment),
continuing and adult education, adult services, independent living, or
community participation;
(b) Is based on the individual student’s
needs, taking into account the child’s strengths, preferences, and interests;
and
(c) Includes:
1. Instruction;
2. Related services;
3. Community experiences;
4. The development of employment and
other post-school adult living objectives; and
5. If appropriate, acquisition of daily
living skills and functional vocational evaluation.
(63) "Traumatic brain injury"
or "TBI" means an acquired injury to the brain caused by an external
physical force, resulting in total or partial functional disability or
psychosocial impairment, or both, that adversely affects a child’s educational
performance. Traumatic brain injury does not mean brain injuries that are
congenital or degenerative, or brain injuries induced by birth trauma. Traumatic
brain injury means open or closed head injuries resulting in impairments in one
(1) or more areas, including:
(a) Cognition;
(b) Language;
(c) Memory;
(d) Attention;
(e) Reasoning;
(f) Abstract thinking;
(g) Judgment;
(h) Problem-solving;
(i) Sensory, perceptual, and motor
abilities;
(j) Psychosocial behavior;
(k) Physical functions;
(l) Information processing; and
(m) Speech.
(64) "Travel training" means
instruction to children with significant cognitive disabilities and any other
children with disabilities, as appropriate, to enable them to develop an
awareness of the environment in which they live and to learn the skills necessary
to move effectively and safely from place to place within that environment,
such as school, home, work and community.
(65) "Visual impairment" or "VI"
means a vision loss, even with correction that:
(a) Requires specialized materials,
instruction in orientation and mobility, Braille, visual efficiency, or tactile
exploration;
(b) Has an adverse effect on the child’s
educational performance;
and
(c) Meets the following:
1. The child has visual acuity with
prescribed lenses that is 20/70 or worse in the better eye; or
2. The child has visual acuity that is
better than 20/70 and the child has one (1) of the following conditions:
a. A medically-diagnosed progressive loss
of vision;
b. A visual field of twenty (20) degrees
or worse;
c. A medically-diagnosed condition of
cortical blindness; or
d. A functional vision loss.
(66) "Ward of the state" means
a child who has been committed to the Cabinet for Families and Children or the
Department of Juvenile Justice through a legal process, whether the commitment
is voluntary or nonvoluntary and the biological or adoptive parental rights
have been terminated.
(67) "Weapon" means "dangerous
weapon" as defined in 18 U.S.C. 930(g)(2).
(68) "Withholding" means no
further payment of specified funds are made to an approved recipient. (26 Ky.R. 2127; Am. 27 Ky.R. 153; 496; eff.
8-14-2000; 33 Ky.R. 3463; 34 Ky.R. 41; 977; eff. 12-7-2007, Recodified from 707
KAR 1:280, 12-7-07.)
