707 Kar 1:002. Definitions

Link to law: http://www.lrc.ky.gov/kar/707/001/002.htm
Published: 2015

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now
      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.)