LSAC approves amendments, further guidance coming on disciplinary removal for special education students

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Local Superintendents Advisory Council Virtual Meeting: March 30, 2021

  • A meeting notice is a notice to parents or guardians that an ARC meeting will be scheduled. Prior written notice is a notice of proposed or refused action by the local education agency.
  • As a condition of Kentucky receiving federal IDEA funds, the state must implement policies that provide the same, or greater, protections to students with disabilities.

By Jacob Perkins
Jacob.perkins@education.ky.gov

The Kentucky Department of Education (KDE) is moving ahead with aligning special education regulations with federal law, as well as clarifying special education regulations for districts.

The Local Superintendents Advisory Council (LSAC) met March 30 to discuss policy issues and regulations for review and action ahead of the Kentucky Board of Education’s (KBE’s) upcoming April 7 regular meeting. On the agenda for the council was an amendment to 707 KAR 1:340, Procedural Safeguards.

The proposed changes to the regulation ensure compliance with federal law. Additionally, sections 3 and 4 of the regulation clarify the difference between an Admission and Release Committee (ARC) meeting notice and prior written notice.

A meeting notice is a notice to parents or guardians that an ARC meeting will take place. Prior written notice is a notice of proposed or refused action by the local education agency.

During the discussion, Sheila Mitchell, an LSAC member and superintendent of Anderson County Schools, raised concerns over the difference between KDE’s and local school districts’ interpretations of prior written notice.

Seeking a narrower regulation, Mitchell proposed adding a line to the regulation that reads, “Notice is given before implementation of ARC decision about proposal or refusal by the ARC.”

“That way we all understand … what is the intent of that regulation,” Mitchell said.

The proposed amendment incorporates the prior written notice requirements outlined in federal law, said Todd Allen, KDE’s general counsel.

“There’s actually nothing in federal law that strictly limits prior written notice to when an ARC makes a decision,” Allen explained. “Prior written notice is required by federal law when a public agency proposes or refuses to initiate or change the identification, evaluation, educational placement or provision of FAPE (Free Appropriate Public Education) to a child.”

All four of these decisions could be made regarding a student with disabilities, and the federal requirement of prior written notice provides parents with the right to written notice if a change is being made. The department has declined to make any changes to the regulation that would limit prior written notice to times when the ARC would decide on any of these changes.

“The federal regulation puts that burden on the (district),” Allen said. “The federal regulation is not so narrowly tailored to restrict prior written notice to only providing that notice when an ARC makes a decision.

“To ask the agency to narrowly tailor our state regulation in that way would ask us to limit the rights of parents that are provided in federal law.”

Not only would this limit the rights of parents, but it also would endanger federal funding under the Individuals with Disabilities Education Act (IDEA) that the state currently is receiving.

As a condition of Kentucky receiving federal IDEA funds, the state must implement policies that provide the same, or greater, protections to students with disabilities.

Misinformation has been distributed that the amendment to the regulation is an opportunity for KDE to cite districts for non-compliance when they remove a student one time from the classroom, Allen said.

“That’s simply inaccurate,” he said. “That is not supported by the plain language of the federal regulation or the plain language of the state regulation.”

Ultimately, LSAC voted to take no action on the amendment to 707 KAR 1:340. However, members voted to recommend that the KBE seek a panel of attorneys to review the regulation and offer feedback as needed.

Going forward, the department will continue to provide guidance to districts regarding disciplinary removal, as this is not the same as educational placement and does not require prior written notice.   

The amendment will head to the KBE with approval by KDE.

In other business, the council:

  • Approved an amendment to 703 KAR 5:240, Administrative Procedures and Guidelines. After a federal audit last summer, this amendment strikes “extraordinary circumstances” from the regulation as a type of exemption. The medical exemption will remain and be expanded to fit more of the exemptions that previously would have been identified as an extraordinary circumstance;
  • Approved an amendment to 703 KAR 5:070, Inclusion of Special Populations in the State-Required Assessment and Accountability Programs. This amendment is the culmination of cross-agency work to clean up the regulation’s language, increase the overall readability and ensure compliance with the federal Every Student Succeeds Act and the Individuals with Disabilities Education Act;
  • Approved an amendment to 702 KAR 3:060, Procedure for Payment of Employees. During the 2020 legislative session, the Kentucky General Assembly passed Senate Bill 174, which included an amendment to KRS 157.395. The change created two cohorts of National Board-Certified Teachers: one of teachers certified between July 14, 2000 to July 1, 2020, and the other after July 1, 2020. The statute also changed salary supplement requirements for teachers attaining National Board certification after July 1, 2020. These teachers will receive an annual National Board Certification salary supplement for the life of the certificate, in accordance with the amount appropriated by the General Assembly. If an annual supplement amount appropriated is less than $2,000, the local board may provide an additional supplement up to the amount required for the total annual supplement to equal $2,000. Teachers with certificates issued before July 1, 2020, will continue to receive an annual salary supplement of $2,000 for the life of the certificate. This amendment brings the regulation into conformity with the statute;
  • Approved an amendment to 701 KAR 5:100, Guidelines for Alternative Models for School-Based Decision Making (SBDM). Although there is no significant change to the regulation, there are two key policy changes. One creates a more formal timeline for the creation and submission of an alternative model application. The other clarifies that applications for alternative SBDM models are not required for changes that maintain the statutorily required membership ratios or that add non-voting members;
  • Repealed 701 KAR 5:080, Application for Approval of Alternative School-Based Decision Making Model. With the proposed amendments to 701 KAR 5:100, applications for alternative SBDM models now shift into that regulation;
  • Approved an amendment to 703 KAR 5:225, Continuous Improvement Planning for Schools and Districts. The minor updates in this regulation are designed to reduce future regulatory burdens;
  • Approved the amended Federal Perkins Performance Goals;
  • Approved the Kentucky Minimum Specifications for School Buses; and
  • Heard an update on KDE’s Equity Playbook from Thomas Woods-Tucker, KDE’s chief equity officer and deputy commissioner in the Office of Teaching and Learning.

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