Kentucky Administrative Regulations › Title 707 - EDUCATION AND WORKFORCE DEVELOPMENT CABINET - KENTUCKY BOARD OF EDUCATION - DEPARTMENT OF EDUCATION - OFFICE OF SPECIAL INSTRUCTIONAL SERVICES › Chapter 1 - Exceptional and Handicapped Programs › Section 707 KAR 1:002 - Definitions

Current through Register Vol. 51, No. 1, July 1, 2024
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
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 school 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 specifically-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;
(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, Tourette 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 attend 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 disadvantage, 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, considering 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 has an adverse effect on the child's
			 educational performance.
(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.