5667824 Education, Office of the State Superintendent of - Notice of Final Rulemaking - Amending regulations to conform with the Enhanced Special Education Services Amendment Act of 2014, the Special Education Student Rights Act of 2014, and the ...
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OFFICE OF THE STATE SUPERINTENDENT OF EDUCATION
NOTICE OF FINAL RULEMAKING
The State Superintendent of Education (“Superintendent”), pursuant to the authority set forth in Sections 3(b)(7), (8), (11), and (15) of the State Education Office Establishment Act of 2000, effective October 21, 2000, (D.C. Law 13-176; D.C. Official Code §§ 38-2602(b)(7), (8), (11) and (15) (2012 Repl. & 2014 Supp.)); the Special Education Quality Improvement Act of 2014, effective March 10, 2015 (D.C. Law 20-196; 61 DCR 12425 (December 5, 2014)); Section 101(b) of the Enhanced Special Education Services Amendment Act of 2014, effective March 10, 2015 (D.C. Law 20-195; 61 DCR 12419 (December 5, 2014)); and the Special Education Student Rights Act of 2014, effective March 10, 2015 (D.C. Law 20-194; 61 DCR 12411 (December 5, 2014)), hereby gives notice of the adoption of a final rule amending Chapter 30 (Education of the Handicapped) of Subtitle E (Original Title 5) of Title 5 (Education) of the District of Columbia Municipal Regulations (“DCMR”).
The purpose of this final rulemaking is to revise and update the current regulations to conform with and implement recent legislation: the Enhanced Special Education Services Amendment Act of 2014, the Special Education Student Rights Act of 2014, and the Special Education Quality Improvement Amendment Act of 2014, all effective March 10, 2015. The purpose of the three laws is to enhance the quality of services, procedural protections, placement and location options, funding and service choices, transfer of rights processes, and public charter school preferences made available to eligible students and their families under the IDEA and Section 504 of the Rehabilitation Act.
A Notice of Proposed Rulemaking was published in the D.C. Register for a thirty (30) day public comment period on July 24, 2015, at 62 DCR 10013. In addition, the Office of the State Superintendent of Education (“OSSE”) held two public hearings, on August 5, 2015 and on August 20, 2015. Based on the comments filed in response to the Notice of Proposed Rulemaking, OSSE made certain clarifying amendments to the proposed regulations, which the Office of the Attorney General determined were non-substantive in nature and therefore did not necessitate a revised notice of proposed rulemaking. These amendments include (1) correcting citations in definitions; (2) adding “and its implementing regulations” to the definition of the term “Rehabilitation Act”; and (3) correcting people-first phrasing in Subsection 3011.11, specifically changing “children who are not disabled” to “children who do not have disabilities.”
In addition, this final rulemaking does not adopt the amendments to Section 3023, “Transfer of Rights” that were included in the Notice of Proposed Rulemaking. The Office of the Attorney General also determined that deletion of Section 3023 in its entirety, although a large portion of the regulations, was non-substantive in nature, as Section 3023 is a separate and distinct section that is not cross referenced in other areas of the final rulemaking, nor do the other sections depend on Section 3023 for implementation or effectiveness. Section 3023 addressed the transfer of rights to a child with a disability who has reached the age of 18. The Special Education Student Rights Act of 2014 does not require OSSE to issue rules to implement local law changes in this area until July 1, 2016. OSSE plans to re-propose the transfer of rights section and will schedule other public hearings to review subsequent transfer of rights proposals.
Other than the deletion of Section 3023, the final rules are being adopted in substantially the same form as proposed with clarifications and deletions taking into account suggestions received in public comments. These changes do not substantially alter or change the intent, meaning, or application of the proposed rules or exceed the scope of the rules as published with the notice of proposed rulemaking. These rules were adopted as final on October 1, 2015 and will be effective upon publication of this notice in the D.C. Register.
Chapter 30, EDUCATION OF THE HANDICAPPED, of Title 5 DCMR, EDUCATION, Subtitle E, ORIGINAL TITLE 5, is proposed to be amended as follows:
The title of Chapter 30 is amended to read as follows:
CHAPTER 30 SPECIAL EDUCATION
Section 3000, SPECIAL EDUCATION POLICY, is amended as follows:
The following definitions in Subsection 3001.1 are amended to read as follows:
3001.1 When used in this chapter, the following terms and phrases shall have the meanings ascribed.
Act (or IDEA) - the Individuals with Disabilities Education Act, as amended (20 U.S.C. §§ 1400 et seq.), and its implementing regulations.
Charter School (or public charter school) - a publicly funded public school established pursuant to the District of Columbia School Reform Act of 1995, approved April 26, 1996 (110 Stat. 1321; D.C. Official Code §§ 38-1800 et seq.), and is not part of the District of Columbia Public Schools (DCPS).
Child with a disability –
(a) In general, a child with:
(1) intellectual disabilities, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance (referred to in this chapter as “emotional disturbance”), orthopedic impairments, autism, traumatic brain injury, other health impairments, specific learning disabilities, deaf-blindness, or multiple disabilities; and
(2) who, by reason thereof, needs special education and related services.
(b) The term “child with a disability” for a child aged three (3) through seven (7) includes a child who experiences developmental delay as defined in this subsection.
DCPS - the District of Columbia Public Schools, established by Section 102 of the District of Columbia Public Schools Agency Establishment Act of 2007, effective June 12, 2007 (D.C. Law 17-9; D.C. Official Code § 38-171).
Individualized Education Program (IEP) - a written statement that specifies the special education programs and services to be provided to meet the unique educational needs of a child with a disability, as required under Section 614(d) of IDEA (20 U.S.C. § 1414(d)) and this chapter.
Individualized Family Service Plan (IFSP) – a written plan for providing early intervention services to an infant or toddler with a disability and the infant’s or toddler’s family that:
(a) Is based on the evaluation and assessment of the child and family, described in 34 C.F.R. § 303.321;
(b) Includes the content of 34 C.F.R. § 303.344,
(c) Is implemented as soon as possible once parental consent for the early intervention services in the IFSP is obtained, consistent with 34 C.F.R. § 303.420; and
(d) Is developed in accordance with the IFSP procedures in 34 C.F.R. §§ 303.342, 303.343, and 303.345.
Local Education Agency (LEA) - an educational institution at the local level that exists primarily to operate a publicly funded school or schools providing elementary or secondary education in the District of Columbia, including the District of Columbia Public Schools and a District of Columbia public charter school. The term includes public charter schools that have elected, pursuant to D.C. Official Code § 38-1800.02(29), DCPS to serve as the LEA for purposes of IDEA, with such election subject to the provisions of D.C. Official Code § 38-1802.10(c), requiring an LEA to be its own LEA for purposes of IDEA and the Rehabilitation Act unless waived by the District of Columbia Public Charter School Board.
Section 3001 is amended by adding the following definitions to Subsection 3001.1:
IDEA (or Act) - the Individuals with Disabilities Education Act, as amended (20 U.S.C. §§ 1400 et seq.) and its implementing regulations.
Infant or toddler with a disability - shall have the same meaning as provided in Section 632(5) of the IDEA (20 U.S.C. § 1432(5)).
Office of the State Superintendent of Education (OSSE) - is the State Education Agency (SEA) for the District of Columbia established by the State Education Office Establishment Act of 2000, effective October 21, 2000 (D.C. Official Code §§ 38-2601 et seq.), with all operational authority for state-level functions, except that delegated to the State Board of Education in D.C. Official Code § 38-2652. As described in D.C. Official Code § 38-2601.01, OSSE performs the functions of a state education agency for the District of Columbia under applicable federal law, including grant-making, oversight, and state educational agency functions for standards, assessments, and federal accountability requirements for elementary and secondary education.
Public charter school - means a publicly funded public school established pursuant to the District of Columbia School Reform Act of 1995, approved April 26, 1996 (110 Stat. 1321; D.C. Official Code §§ 38-1800 et seq.), and is not part of DCPS.
Rehabilitation Act - means the Rehabilitation Act of 1973, approved September 26, 1973 (87 Stat. 355; 29 U.S. C. §§ 701 et seq.) and its implementing regulations.
The title of Section 3004 is amended to read as follows:
3004 IDENTIFICATION & REFERRAL FOR INITIAL EVALUATION
Section 3004 is amended by amending Subsection 3004.1 to read as follows:
3004.1 Referral to IEP Team
(a) A child suspected of having a disability who may need special education and is at least two years, eight months of age and less than twenty-two (22) years of age, shall be referred to an IEP team for an evaluation or assessment.
(b) A referral for an evaluation or assessment for special education services may be oral or written. An LEA shall document any oral referral within three (3) business days of receipt.
Section 3005, EVALUATION AND REEVALUATION, is amended by amending Subsection 3005.2 to read as follows:
3005.2 Before paragraph (a) of this subsection takes effect, an LEA shall assess or evaluate a student who may have a disability and who may require special education services within one hundred twenty (120) days from the date that the student was referred for an evaluation or assessment, consistent with Federal and local law.
(a) Beginning July 1, 2017, or upon the inclusion of the fiscal effect of the subsection in an approved budget and financial plan as certified by the District of Columbia Chief Financial Officer and published in the District of Columbia Register, whichever occurs later, an LEA shall assess or evaluate a student who may have a disability and who may require special education services within sixty (60) days from the date that the student’s parent or guardian provides consent for the evaluation or assessment. The LEA shall make reasonable efforts to obtain parental consent within thirty (30) days from the date the student is referred for an assessment or evaluation.
(b) The LEA shall document reasonable efforts to obtain parental consent. Reasonable efforts include at least three (3) attempts using at least two (2) of the following modalities:
(1) Telephone calls made or attempted and the results of those calls;
(2) Correspondence sent to the parents and any responses received; or
(3) Visits made to the parents’ home or place of employment and the results of those visits.
Section 3009, INDIVIDUALIZED EDUCATION PROGRAM (IEP) DEVELOPMENT, is amended by amending Subsections 3009.3 through 3009.5, adding a new Subsection 3009.6, renumbering and amending Subsection 3009.6, adding a new Subsection 3009.8, and renumbering Subsection 3009. 7, to read as follows:
3009 INDIVIDUALIZED EDUCATION PROGRAM CONTENT
. . .
3009.3 Before Subsection 3009.6 takes effect, the IEP for a child with a disability, beginning not later than the first IEP to be in effect when the child is sixteen (16), and updated annually thereafter, shall include appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and where appropriate, independent living skills and the transition services (including courses of study) needed to assist the child in reaching those goals.
3009.4 Before Subsection 3009.6 takes effect, for each child beginning at age sixteen (16) or younger if determined appropriate by the IEP team, the IEP shall include a statement of needed transition services including, if appropriate, a statement of inter-agency responsibilities or any needed linkages, or both, before the child leaves the school setting.
3009.5 Before Subsection 3009.6 takes effect, if the IEP team determines that transition services are not needed, the IEP shall include a statement to that effect and the basis upon which the determination was made.
3009.6 Beginning July 1, 2016, or upon the inclusion of the fiscal effect of this subsection in an approved budget and financial plan as certified by the District of Columbia Chief Financial Officer and published in the District of Columbia Register, whichever occurs later, the first IEP in effect after a child with a disability reaches fourteen (14) years of age shall include transition assessments and services, including:
(a) Appropriate measurable postsecondary goals based upon age-appropriate transition assessments related to training, education, employment, and where appropriate, independent living skills and the transition services needed to assist the child in reaching those goals;
(b) A statement of inter-agency responsibilities or any needed linkages before the child leaves the school setting; and
(c) If the IEP team determines that transition services are not needed, the IEP shall include a statement to that effect and the basis upon which the determination was made.
3009.7 The requirements set out in Subsections 3009.3 and 3009.6 above shall not apply to children with disabilities who are convicted as adults under District or state law and incarcerated in adult prisons whose eligibility under Part B of IDEA will end, because of their age, before they will be eligible to be released from prison based on consideration of their sentence and eligibility for early release.
3009.8 Not later than one year before a child with a disability’s anticipated high school graduation or attainment of a certificate of IEP completion, the IEP team shall identify which adult services might be appropriate for the child and, in consultation with the appropriate District of Columbia agency when feasible, what evaluations should occur to determine the child’s eligibility for those services; provided, that nothing in this section shall be construed to impose any obligation on an LEA to conduct evaluations to determine eligibility for adult services.
3009.9 Beginning at least one (1) year before a child with a disability reaches the age of eighteen (18) his or her IEP must include a statement that the child has been informed of his or her rights under Part B of the Act that will transfer to the child on reaching the age of eighteen (18), unless the child has been determined to be incompetent under District law or the child has been certified as unable to provide informed consent pursuant to § 3023.
The title of Section 3011 is amended to read as follows:
3011 LEAST RESTRICTIVE ENVIRONMENT (LRE) & PLACEMENT OUTSIDE OF THE LEA
Section 3011 is amended to read as follows:
3011.1 An LEA shall provide a student with a disability a free and appropriate public education in an appropriate special education placement in accordance with IDEA and local law; provided that an LEA shall not remove a student with a disability from an age-appropriate classroom solely because of modifications that can be made in the general education curriculum. The LEA shall ensure that:
(a) To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who do not have disabilities; and
(b) Special classes, separate schooling, or other removal of children with disabilities 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.
3011.2 If an LEA anticipates that it may be unable to implement a student’s IEP or provide a student with an appropriate special education placement in accordance with the IDEA and other applicable laws or regulations, the LEA shall notify OSSE. Subject to its policies for placement review, OSSE shall cooperate with the LEA to provide a placement in a more restrictive setting in conformity with the IDEA, and any other applicable laws or regulations.
3011.3 OSSE shall be responsible for paying the costs of education, including special education and related services, of a student with a disability when the student is placed at a nonpublic special education school or program pursuant to this section; provided, that, in conformity with IDEA, OSSE shall not be responsible for paying the cost of education, including special education and related services, of a student with a disability who attends a nonpublic special education school or program if:
(a) An LEA made a free and appropriate public education available the student; and
(b) The student’s parent or guardian elected to place the student in a nonpublic special education school or program.
