Section R7-2-401. Special Education Standards for Public Agencies Providing Educational Services

A.      For the purposes of this Article, the Individuals with Disabili- ties Education Improvement Act (IDEA), 20 U.S.C. 1400 et seq. and its implementing regulations, 34 CFR 300.1 et seq., are incorporated herein by reference. Copies of the incorpo- rated material can be obtained from the U.S. Government Printing Office, Attn: New Orders, P.O. Box 979050, St. Louis, MO 63197-9000 or the Arizona Department of Educa- tion, Exceptional Student Services, 1535 West Jefferson Street, Phoenix, Arizona 85007.

B.       Definitions. All terms defined in the IDEA, its implementing regulations and A.R.S. § 15-761 are applicable, with the fol- lowing additions:

1.        “Accommodations” means the provisions made to allow a student to access and demonstrate learning. Accommo- dations do not substantially change the instructional level, the content or the performance criteria, but are made in order to provide a student equal access to learn- ing and equal opportunity to demonstrate what is known. Accommodations shall not alter the content of the curric- ulum or a test, or provide inappropriate assistance to the student within the context of the test.

2.        “Adaptations” means changes made to the environment, curriculum, and instruction or assessment practices in order for a student to be a successful learner. Adaptations

include accommodations and modifications. Adaptations are based on an individual student’s strengths and needs.

3.        “Administrator” means the chief administrative official or designee (responsible for special education services) of a public education agency.

4.        “Audiologist” means a person who specializes in the identification and prevention of hearing problems and in the non-medical rehabilitation of those who have hearing impairments, and who is licensed to practice audiology according to A.R.S. Title 36, Chapter 17, Article 4.

5.        “Boundaries of responsibility” means for:

a.         A school district, the geographical area within the legally designated boundaries.

b.        A public agency other than a school district, the pop- ulation of students enrolled in a charter school or receiving educational services from a public agency.

6.        “Certificate in speech and language therapy” means a speech-language pathologist or speech-language techni- cian certificate awarded by the State Board of Education.

7.        “Certified school psychologist” means a person holding a certificate from the Arizona State Board of Education issued pursuant to 7 A.A.C. 2, Article 6, in the area of school psychology.

8.        “Certified speech-language therapist” means a person holding a speech-language pathologist or speech-lan- guage technician certificate from the Arizona State Board of Education issued pursuant to 7 A.A.C. 2, Article 6, and a license from the Arizona Department of Health Services as  a  speech-language  pathologist  in  accordance   with

A.R.S. Title 36, Chapter 17, Article 4.

9.        “Department” means the Arizona Department of Educa- tion.

10.     “Doctor of medicine” means a person holding a license to practice medicine pursuant to A.R.S. Title 32, Chapter 13 (medical doctor) or Chapter 17 (doctor of osteopathy).

11.     “Exceptional Student Services Division” or “ESS” means the Exceptional Student Services Division of the Arizona Department of Education.

12.     “Evaluator” means a qualified person in a field relevant to the child’s disability who administers specific and indi- vidualized assessment for the purpose of special educa- tion evaluation and placement.

13.     “Full and individual evaluation” means procedures used in accordance with the IDEA to determine whether a child has a disability and the nature and extent of the spe- cial education and related services that the child needs. This evaluation includes:

a.         A review of existing information about the child;

b.        A decision regarding the need for additional infor- mation;

c.         If necessary, the collection of additional informa- tion; and

d.        A review of all information about the child and a determination of eligibility for special education ser- vices and needs of the child.

14.     “Independent educational evaluation” means an evalua- tion conducted by a qualified evaluator who is not employed by the public education agency responsible for the education of the child in question.

15.     “Interpreter” means a person trained to translate orally or in sign language in matters pertaining to special educa- tion identification, evaluation, placement, the provision of FAPE, or assurance of procedural safeguards for par- ents and students who converse in a language other than spoken English. Each student’s IEP team determines the

level of interpreter skill necessary for the provision of FAPE.

16.     “Language in which the student is proficient” means all languages including sign language systems.

17.     “Licensed psychologist” means a person holding a license from the state of Arizona Board of Psychologist examiners in accordance with A.R.S. Title 32, Chapter 19.1, Article 2.

18.     “Modifications” means substantial changes in what a stu- dent is expected to learn and to demonstrate. Changes may be made in the instructional level, the content or the performance criteria. Such changes are made to provide a student with meaningful and productive learning experi- ences, environments, and assessments based on individ- ual needs and abilities.

19.     “Paraeducator” means a person employed to assist with the education of students but who is not certified to teach by the Arizona Department of Education. Alternate terms may include paraprofessional, teacher aide, instructional assistant or other similar titles.

20.     “Private school” means any nonpublic educational insti- tution where academic instruction is provided, including nonsectarian and parochial schools, that are not under the jurisdiction of the state or a public education agency.

21.     “Private special education school” means a private school that is established to serve primarily students with dis- abilities. The school may also serve students without dis- abilities.

22.     “Psychiatrist” means a doctor of medicine who special- izes in the study, diagnosis, treatment and prevention of mental disorders.

23.     “Public education agency” or “PEA” means a school dis- trict, charter school, accommodation school, state sup- ported institution, or other political subdivision of the state that is responsible for providing education to chil- dren with disabilities.

24.     “Screening” means an informal or formal process of determining the status of a child with respect to appropri- ate developmental and academic norms. Screening may include observations, family interviews, review of medi- cal, developmental, or education records, or the adminis- tration of specific instruments identified by the test publisher as appropriate for use as screening tools.

25.     “Special education teacher” means a teacher holding a special education certificate from the Arizona Depart- ment of Education.

26.     “Suspension” means a disciplinary removal from a child’s current placement that results in a failure to pro- vide services to the extent necessary to enable the child to progress appropriately in the general curriculum and advance toward achieving the goals set out in the child’s IEP. The term does not include disciplinary actions or changes in placement through the IEP process if the child continues to receive the services described above. The term does include actions such as “in-school” and “going home for the rest of the day” removals if the child does not receive the services described above.

C.      Public Awareness.

1.        Each public education agency shall inform the general public and all parents, within the public education agency’s boundaries of responsibility, of the availability of special education services for students aged 3 through 21 years and how to access those services. This includes information regarding early intervention services for chil- dren aged birth through 2 years.

2.        Each public education agency is responsible for public awareness within their enrolled population (including the families of enrolled students).

3.        School districts are responsible for public awareness in private schools located within their geographical bound- aries.

D.      Child Identification and Referral.

1.        Each public education agency shall establish, implement, and disseminate to its school-based personnel and all par- ents, within the public education agency boundaries of responsibility, written procedures for the identification and referral of all children with disabilities, aged birth through 21, including children with disabilities attending private schools and home schools, regardless of the severity of their disability.

2.        Each public education agency will require all school- based staff to review the written procedures related to child identification and referral on an annual basis. The public education agency shall maintain documentation of staff review.

3.        Procedures for child identification and referral shall meet the requirements of the IDEA and regulations, A.R.S. Title 15, Chapter 7, Article 4 and these rules.

4.        The public education agency responsible for child identi- fication activities is the school district in which the par- ents reside unless:

a.         The student is enrolled in a charter school or public education agency that is not a school district. In that event, the charter school or public education agency is responsible for child identification activities;

b.        The student is enrolled in a non-profit private school. In that event, the school district within whose boundaries the private school is located is responsible for child identification activities.

5.        Identification (screening for possible disabilities) shall be completed within 45 calendar days after:

a.         Entry of each preschool or kindergarten student and any student enrolling without appropriate records of screening, evaluation, and progress in school; or

b.        Notification to the public education agency by par- ents of concerns regarding developmental or educa- tional progress by their child aged 3 years through 21 years.

6.        Screening procedures shall include vision and hearing status and consideration of the following areas: cognitive or academic, communication, motor, social or behavioral, and adaptive development. Screening does not include detailed individualized comprehensive evaluation proce- dures.

7.        For a student transferring into a school; the public educa- tion agency shall review enrollment data and educational performance in the prior school. If there is a history of special education for a student not currently eligible for special education, or poor progress, the name of the stu- dent shall be submitted to the administrator for consider- ation of the need for a referral for a full and individual evaluation or other services.

8.        If a concern about a student is identified through screen- ing procedures or through review of records, the public education agency shall notify the parents of the student of the concern within 10 school days and inform them of the public education agency procedures to follow-up on the student’s needs.

9.        Each public education agency shall maintain documenta- tion of the identification procedures utilized, the dates of entry into school or notification by parents made pursuant

to subsection (D)(5), and the dates of screening. The results shall be maintained in the student’s permanent records in a location designated by the administrator. In the case of a student not enrolled, the results shall be maintained in a location designated by the administrator.

10.     If the identification process indicates a possible disability, the name of the student shall be submitted to the adminis- trator for consideration of the need for a referral for a full and individual evaluation or other services. A parent or a student may request an evaluation of the student. For parentally-placed private school students the school dis- trict within whose boundaries the non-profit private school is located is responsible for such evaluation.

11.     If, after consultation with the parent, the responsible pub- lic education agency determines that a full and individual evaluation is not warranted, the public education agency shall provide prior written notice and procedural safe- guards notice to the parent in a timely manner.

E.       Evaluation/re-evaluation.

1.        Each public education agency shall establish, implement, disseminate to its school-based personnel, and make available to parents within its boundaries of responsibil- ity, written procedures for the initial full and individual evaluation of students suspected of having a disability, and for the re-evaluation of students previously identified as being eligible for special education.

2.        Procedures for the initial full and individual evaluation of children suspected of having a disability and for the re- evaluation of students with disabilities shall meet the requirements of IDEA and regulations, and state statutes and State Board of Education rules.

3.        The initial evaluation of a child being considered for spe- cial education, or the re-evaluation per a parental request of a student already receiving special education services, shall be completed as soon as possible, but shall not exceed 60 calendar days from receipt of informed written consent. If the public education agency initiates the eval- uation, the 60-day period shall commence with the date of receipt of informed written consent and shall conclude with the date of the Multidisciplinary Evaluation Team (MET) determination of eligibility. If the parent requests the evaluation and the MET concurs, the 60-day period shall commence with the date that the written parental request was received by the public education agency and shall conclude with the date of the MET determination of eligibility.

4.        The 60-day evaluation period may be extended for an additional 30 days, provided it is in the best interest of the child, and the parents and PEA agree in writing to such an extension. Neither the 60-day evaluation period nor any extension shall cause a re-evaluation to exceed the time- lines for a re-evaluation within three years of the previous evaluation.

5.        The public education agency may accept current informa- tion about the student from another state, public agency, public education agency, or  independent evaluator. In such instances, the Multidisciplinary Evaluation Team shall be responsible for reviewing and approving or sup- plementing an evaluation to meet the requirements identi- fied in subsections (E)(1) through (7).

6.        For the following disabilities, the full and individual ini- tial evaluation shall include:

a.         Emotional disability: verification of a disorder by a psychiatrist, licensed psychologist, or a certified school psychologist.

b.        Hearing impairment:

i.         An audiological evaluation by an audiologist, and

ii.        An evaluation of communication/language pro- ficiency.

c.         Other health impairment: verification of a health impairment by a doctor of medicine.

d.        Specific learning disability: a determination of whether the child exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, state-approved grade-level standards, or intellectual development that meets the public education agency criteria through one of the follow- ing methods:

i.         A discrepancy between achievement and abil- ity;

ii.        The  child’s  response  to  scientific,   research- based interventions; or

iii.      Other alternative research-based procedures.

e.         Orthopedic impairment: verification of the physical disability by a doctor of medicine.

f.         Speech/language impairment: an evaluation by a certified speech-language therapist.

g.        For students whose speech impairments appear to be limited to articulation, voice, or fluency problems, the written evaluation may be limited to:

i.         An audiometric screening within the past calen- dar year,

ii.        A review of academic history and classroom functioning,

iii.      An  assessment   of  the  speech  problem  by  a speech therapist, or

iv.       An assessment of the student’s functional com- munication skills.

h.        Traumatic brain injury: verification of the injury by a doctor of medicine.

i.         Visual impairment: verification of a visual impair- ment by an ophthalmologist or optometrist.

7.        The Multidisciplinary Evaluation Team shall determine, in accordance with the IDEA and regulations, whether the requirements of subsections (E)(6)(a) through (i) are required for a student’s re-evaluation.

F.       Parental Consent.

1.        A public education agency shall obtain informed written consent from the parent of the child with a disability before the initial provision of special education and related services to the child.

2.        If the parent of a child fails to respond to a request for, or refuses to consent to, the initial provision of special edu- cation and related services, the public education agency may not use mediation or due process procedures in order to obtain agreement or a ruling that the services may be provided to the child.

3.        If the parent of the child refuses to consent to the initial provision of special education and related services, or the parent fails to respond to a request to provide consent for the initial provision of special education and related ser- vices, the public education agency:

a.         Will not be considered to be in violation of the requirement to make available FAPE to the child because of the failure to provide the child with the special education and related services for which the parent refuses to or fails to provide consent, and

b.        Is not required to convene an IEP Team meeting or develop an IEP in accordance with these rules.

4.        If, at any time subsequent to the initial provision of spe- cial education and related services, the parent of a child

revokes consent in writing for the continued provision of special education and related services, the public educa- tion agency:

a.         May not continue to provide special education and related services to the child, but shall provide prior written notice before ceasing the provision of special education and related services;

b.        May not use the mediation procedures or the due process procedures in order to obtain agreement or a ruling that the services may be provided to the child;

c.         Will not be considered to be in violation of the requirement to make FAPE available to the child because of the failure to provide the child with fur- ther special education and related services; and

d.        Is not required to convene an IEP Team meeting or develop an IEP for the child for further provision of special education and related services.

5.        If a parent revokes consent in writing for their child’s receipt of special education services after the child is ini- tially provided special education and related services, the public agency is not required to amend the child’s educa- tion records to remove any references to the child’s receipt of special education and related services because of the revocation of consent.

G.      Individualized Education Program (IEP).

1.        Each public education agency shall establish, implement, and disseminate to its school-based personnel, and make available to parents, written procedures for the develop- ment, implementation, review, and revision of IEPs.

2.        Procedures for IEPs shall meet the requirements of the IDEA and regulations, and state statutes and State Board of Education rules.

3.        Procedures shall include the incorporation of Arizona Academic Standards into the development of each IEP. IEP goals aligned with the Arizona Academic Standards shall identify the specific level within the Standard that is being addressed.

4.        Each IEP of a student with a disability shall stipulate the provision of instructional or support services by a special education teacher, certified speech-language therapist, and/or ancillary service provider(s), as appropriate.

5.        Each student with a disability who has an IEP shall par- ticipate in the state assessment system. Students with dis- abilities can test with or without standard accommodations as indicated in the student’s IEP. Stu- dents who are determined to have a significant cognitive disability based on the established eligibility criteria will be assessed with the state’s alternate assessment as deter- mined by the IEP team.

6.        A meeting shall be conducted to review and revise each student’s IEP at least annually, or more frequently if the student’s progress substantially deviates from what was anticipated. The public education agency shall provide written notice of the meeting to the parents of the student to ensure that parents have the opportunity to participate in the meeting.

7.        A parent or public education agency may request in writ- ing a review of the IEP. Such review shall take place within 15 school days of the receipt of the request or at a mutually agreed upon time but not to exceed 30 school days.

H.      Least Restrictive Environment.

1.        Each public education agency shall establish, implement, and disseminate to its school-based personnel, and make available to parents, written procedures  to ensure  the delivery of special education services in the least restric-

tive environment as identified by IDEA and regulations, and state statutes and State Board of Education rules.

2.        A continuum of services and supports for students with disabilities shall be available through each public educa- tion agency.

I.        Procedural Safeguards.

1.        Each public education agency shall establish, implement, and disseminate to its school-based personnel and parents of students with disabilities written procedures to ensure children with disabilities and their parents are afforded the procedural safeguards required by federal statute and regulation and state statute. These procedures shall include dissemination to parents information about the public education agency’s and state’s dispute resolution options.

2.        In accordance with the prior written notice requirements of IDEA, prior written notice must be issued in a timely manner following a decision by a PEA to propose to initi- ate or change, or refuse to initiate or change, the identifi- cation, evaluation, educational placement or the provision of FAPE to the child.

J.        Confidentiality.

1.        Each public education agency shall establish, implement, and disseminate to its personnel, and make available to parents, written policies and procedures to ensure the confidentiality of records and information in accordance with the IDEA, the Family Educational Rights and Pri- vacy Act (FERPA) and regulations, and state statutes.

2.        Parents shall be fully informed about the requirements of the IDEA and regulations, including an annual notice of the policies and procedures that the PEA must follow regarding storage, disclosure to a third party, retention, and destruction of personally identifiable information.

3.        The rights of parents regarding education records are transferred to the student at age 18, unless the student has been declared legally incompetent, or the student has exe- cuted a delegation of rights to make educational decisions pursuant to A.R.S. § 15-773.

4.        Upon receiving a written request, each public education agency shall forward special education records to any other public education agency in which a student is attempting to enroll. Records shall be forwarded within the time-frame specified in A.R.S. § 15-828(F). The pub- lic education agency shall also forward records to any other person or agency for which the parents have given signed consent.

K.      Preschool Programs. Each public education agency responsi- ble for serving preschool children with disabilities shall estab- lish, implement, and disseminate to its personnel, and make available to parents, written procedures for:

1.        The operation of the preschool program in accordance with federal statute and regulation, and state statute;

2.        The smooth and effective transition from the Arizona Early Intervention Program (AzEIP) to a public school preschool program in accordance with the agreement between the Department of Economic Security and the Department; and

3.        The provision of a minimum of 360 minutes of instruc- tion in a program that operates at least three days a week.

L.       Children in Private Schools. Each public education agency shall establish, implement, and disseminate to its personnel, and make available to parents, written procedures regarding the access to special education services to students enrolled in private schools as identified by the IDEA and regulations, and state statutes and State Board of Education rules.

M.     State Education Agency Responsible for General Supervision and Obligations Related to and Methods of Ensuring Services.

1.        The Department is responsible for the general supervision of services to children with disabilities aged 3 through 21 served through a public education agency.

2.        The Department  shall ensure through fund allocation, monitoring, dispute resolution, and technical assistance that all eligible students receive a free appropriate public education in conformance with the IDEA regulations,

A.R.S. Title 15, Chapter 7, Article 4, and these rules.

3.        In exercising its general supervision responsibilities, the Department shall ensure that when it identifies noncom- pliance with the requirements of the IDEA Part B, the noncompliance is corrected as soon as possible, and in no case later than one year after the Department’s written notification to the PEA of its identification of the non- compliance.

N.      Procedural   Requirements   Relating   to   Public   Education Agency Eligibility.

1.        Each public education agency shall establish eligibility for funding with the Arizona Department in accordance with the IDEA and regulations, and state statutes and with schedule and method prescribed by the Department.

2.        In the event the Department determines that a public edu- cation agency does not meet eligibility for funding requirements, the public education agency has a right to a hearing before such funding is withheld.

3.        The Department may temporarily interrupt payments during any time period when a public education agency has not corrected deficiencies in eligibility for federal funds as a result of fiscal requirements of monitoring, auditing, complaint and due process findings.

4.        Each public education agency shall, on an annual basis, determine the number of children within each disability category who have been identified, located, evaluated, and/or receiving special education services. This includes children residing within the boundaries of responsibility of the public education agency who have been placed by their parents in private schools or who are home schooled.

O.      Public Participation.

1.        Each public education agency shall establish, implement, and disseminate to its personnel, and make available to parents, written procedures to ensure that, prior to the adoption of any policies and procedures needed to com- ply with federal and state statutes and regulations, there are:

a.         Public hearings;

b.        Notice of the hearings; and

c.         An opportunity for comment available to the general public, including individuals with disabilities and parents of children with disabilities.

2.        This requirement does not pertain to day-to-day operating procedures.

P.       Suspension and Expulsion.

1.        Each public education agency shall establish, implement, and disseminate to its personnel, and make available to parents, written procedures for the suspension and expul- sion of students with disabilities.

2.        Each public education agency shall require all school- based staff involved in the disciplinary process to review the policies and procedures related to suspension and expulsion on an annual basis. The public education agency shall maintain documentation of staff review.

3.        Procedures for such suspensions and expulsions shall meet the requirements of the IDEA and regulations, and state statutes.

Historical Note

Amended effective December 11, 1974. Amended effec- tive July 14, 1975 (Supp. 75-1). Amended effective July

1, 1977 (Supp. 77-4). Amended effective April 26, 1978 (Supp. 78-2). Former Section R7-2-401 repealed, new Section R7-2-401 adopted effective December 4, 1978 (Supp. 78-6). Amended by adding subsection (H) as an emergency effective July 20, 1984, pursuant to A.R.S. § 41-1003, valid for only 90 days (Supp. 84-4). Emergency expired. Amended (D)(11), (E)(5)(b) and added (H) effective December 14, 1984 (Supp. 84-6). Amended as an emergency effective June 18, 1985, pursuant to A.R.S.

§ 41-1003, valid for only 90 days (Supp. 85-3). Emer- gency expired. Amended subsection (D) by adding sub- section (12) effective March 13, 1986 (Supp. 86-2).

Amended subsection (G) effective July 8, 1986 (Supp. 86-4). Amended subsections (D) and (H) and added sub- section (I) effective June 22, 1987 (Supp. 87-2).

Amended effective August 2, 1988 (Supp. 88-3).

Amended effective December 6, 1995 (Supp. 95-4). Amended by final rulemaking at 7 A.A.R. 1541, effective March 19, 2001 (Supp. 01-1). Amended to correct a man- ifest typographical error in subsection (D)(1) (Supp. 01- 3). Subsections (D)(9), (E)(4), and (E)(6) amended under

A.R.S. § 41-1011 to correct subsection cross-references (Supp. 02-2). Amended by final rulemaking at 9 A.A.R.

4633, effective December 8, 2003 (Supp. 03-4). Amended by exempt rulemaking at 15 A.A.R. 1838, effective August 29, 2006 (Supp. 09-1). Amended by

exempt rulemaking at 15 A.A.R. 1849, effective May 19,

2008 (Supp. 09-2). Amended by exempt rulemaking at 16

A.A.R. 201, effective December 7, 2009 (Supp. 10-1).