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Proposed Rule
of the
State Board of Education
Chapter 0520-1-9
Special Education Programs and Services
Amendments
Rule 0520-1-9 Special Education Programs and Services is amended by deleting the rule in
its entirety and substituting the following so that as amended the rule shall read:
0520-1-9-.01 Definitions.
Definitions are words and phrases used in this part shall have the following meanings except
where the context demands otherwise:
(1) "Adversely" affects means when a child's disability significantly impacts the progress
in the general curriculum.
(2) "Assessment" means gathering and integrating information to determine a student's
current level of emotional, behavioral, academic and intellectual functioning,
resulting educational needs and strategies for remediation to promote an effective
educational program. Common assessment methods may include standardized tests,
interviews, behavioral assessments, rating scales, perception tests and neurophysical
tests.
(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.
(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. The
term includes:
(a) The assessment of the needs of a child with a disability, including a functional
assessment 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;
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(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, such as 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 that child.
(5) "CFR" is an acronym for Code of Federal Regulations.
(6) "Child with a disability" means a child or youth between the ages 3 and twenty-one
(21) years of age, inclusive, evaluated as having mental retardation, a hearing
impairment including deafness, a speech or language impairment, a visual impairment
including blindness, emotional disturbance, a developmental delay, an orthopedic
impairment, autism, traumatic brain injury, an other health impairment, a specific
learning disability, deaf-blindness, multiple disabilities, intellectual giftedness, or a
functional delay. If it is determined, through an appropriate evaluation that a child
has one of the disabilities identified above, but only needs a related service and not
special education, the child is not a child with a disability under IDEA or state
standards.
Any youth with a disability who turn twenty-two (22).years of age between the
commencement of the school year in August and the conclusion of the following
June, will continue to be a "child with disabilities" for the remainder of that year.
(7) "Consent" means that:
(a) The parent has been fully informed of all information relevant to the activity
for which consent is sought, in his or her native language, or other mode of
communication;
(b) The parent understands and agrees in writing to the carrying out of the activity
for which his or her consent is sought, and the consent describes that activity
and lists the records (if any) that will be released and to whom or to what
agency;
(c) The parent understands that the granting of consent is voluntary on the part of
the parent and may be revoked at anytime. Revocation of consent must be in
writing; and
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(d) If a parent revokes consent, that revocation is not retroactive (i.e., it does not
negate an action that has occurred after the consent was given and before the
consent was revoked). Revocation is not effective until received by the LEA
to which the consent was granted.
(8) "Controlled substance" means a drug or other substance identified under schedules I,
II, III, IV, or V in section 202(c) of the Controlled Substances Act (21 U.S.C. 812(c)).
It does not include alcohol or tobacco.
(9) "Day; business day; school day".
(a) Day means a calendar day unless otherwise indicated as business day or
school day.
(b) Business day means Monday through Friday, except for Federal and State
holidays.
(c) School day means any day, including a partial day, that children are in
attendance at school for instructional purposes and has the same meaning for
all children in school.
(10) "Department" means the Tennessee Department of Education.
(11) "Destruction" means the physical destruction or removal of personal identifiers from
information so that the information is no longer personally identifiable.
(12) "Direct services" mean services provided to a child with a disability by the
Department directly, by contract, or through other arrangements.
(13) "Disabilities"
(a) "Autism" means a developmental disability, which significantly affects verbal
and nonverbal communication and social interaction, generally evident before
age 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 does not apply if a child's educational performance is adversely affected
primarily because the child has an emotional disturbance, as defined in this
section. After age 3, a child could be diagnosed as having autism if the child
manifests the above characteristics.
The term of autism may also include students who have been diagnosed with
an Autism Spectrum Disorder such as Autism, Pervasive Developmental
Disorder Not Otherwise Specified (PDD-NOS) or Asperger's Syndrome
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when the child's educational performance is adversely affected. Additionally,
it may also include a diagnosis of a Pervasive Developmental Disorder such as
Rett's or Childhood Disintegrative Disorder. Autism may exist concurrently
with other areas of disability.
(b) "Deaf-blindness" means concomitant hearing and visual impairments the
combination of which causes such severe communication and other
developmental and educational needs that they cannot be accommodated by
addressing any one of the impairments.
(c) "Deafness" means a hearing impairment that is so severe that the child is
impaired in processing linguistic information through hearing, with or without
amplification, that adversely affects a child's educational performance.
(d) "Developmental delay" means a child aged 3 through 9 who is experiencing
developmental delays as measured by appropriate diagnostic instruments and
procedures in one or more of the following areas: physical, cognitive,
communication development, social or emotional, or adaptive development
that adversely affects a child's educational performance. Other disability
categories should be used if they are more descriptive of a young child's
strengths and needs. Local school systems have the option of using
developmental delay as a disability category.
(e) "Emotional disturbance" means a child or youth who exhibits one or more of
the characteristics as listed in the state adopted eligibility criteria over a long
period of time and to a marked degree that adversely affects a child's
educational performance. The term includes schizophrenia. The term does
not apply to children who are socially maladjusted, unless it is determined that
they have an emotional disturbance.
(f) "Functionally delayed" means a child who has or develops a continuing
disability in intellectual functioning and achievement which significantly
affects the ability to think and/or act in the general school program, but who is
functioning socially at or near a level appropriate to his or her chronological
age.
(g) "Hearing impairment" means an impairment in hearing, whether permanent or
fluctuating, that adversely affects a child's educational performance but does
not include deafness.
(h) "Intellectually gifted" means a child whose intellectual abilities and potential
for achievement are so outstanding that special provisions are required to meet
the child's educational needs.
(i) "Mental retardation" means substantial limitations in present levels of
functioning that adversely affect a child's educational performance. It is
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characterized by significantly impaired intellectual functioning, existing
concurrently with deficits in adaptive behavior and manifested during the
developmental period.
(j) "Multiple disabilities" means concomitant impairments (such as mental
retardation-blindness, mental retardation-orthopedic impairment), the
combination of which causes such severe educational needs that they cannot
be accommodated by addressing only one of the impairments. The term does
not include deaf-blindness.
(k) "Orthopedic/physical impairment" means a severe orthopedic impairment that
adversely affects a child's educational performance. The term includes
impairments caused by congenital anomaly (i.e. clubfoot, absence of some
member), impairments caused by disease (i.e. poliomyelitis, bone
tuberculosis) and impairments from other causes (i.e. cerebral palsy,
amputations, and fractures or burns that cause contractures).
(l) "Other health impairment" 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:
Is due to chronic or acute health problems such as asthma, attention deficit
disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart
condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever,
and sickle cell anemia; and adversely affects a child's educational
performance.
(m) "Specific learning disability" means a disorder in one or more of the basic
psychological processes involved in understanding or in using language,
spoken or written, that may manifest itself in an imperfect ability to listen,
think, speak, read, write, spell, or to do mathematical calculations including
conditions such as perceptual disabilities, brain injury, minimal brain
dysfunction, dyslexia, and developmental aphasia.
(n) "Speech or language impairment" means a communication disorder, such as
stuttering, impaired articulation, a language impairment, or a voice
impairment, that adversely affects a child's educational performance.
(o) "Traumatic brain injury" 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. The term applies to open or closed head injuries resulting in
impairments in one or more areas, such as cognition; language; memory;
attention; reasoning; abstract thinking; judgment; problem-solving; sensory,
perceptual, and motor abilities; psychosocial behavior; physical functions;
information processing; and speech. The term does not apply to brain injuries
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that are congenital or degenerative, or to brain injuries induced by birth
trauma.
(p) "Visual impairment including blindness" means an impairment in vision that,
even with correction, adversely affects a child's educational performance. The
term includes both partial sight and blindness.
(14) "Division" means the Division of Special Education of the Tennessee Department of
Education.
(15) "Educational placement" means the instructional environment in which special
education is provided to a child eligible for special education but does not mean the
specific classroom or school to which a child is assigned.
(16) "Education records" mean those records that are:
(a) Directly related to a student; and,
(b) Maintained by an educational agency or by a party acting for the agency or
institution 34 CFR Part 9 (FERPA).
(17) "A child ELIGIBLE for special education" means a child or youth, who meets the
definition of a child with a disability, and has been determined by an IEP Team to be
unable to be educated appropriately in the general education program without the
provision of special education.
(18) "Evaluation" means a procedure used to determine whether a child has a disability
and the nature and extent of the special education and related services that the child
needs. The term means procedures used selectively with an individual child and does
not include basic tests administered to or procedures used with all children in a
school, grade or class.
(19) "Evaluation/Reevaluation report." means a summary of evaluation/reevaluation
results obtained in the process of collecting information to determine if the child is a
child with a disability or continues to be a child with a disability. The report(s) will
vary from student to student, depending upon the type of evaluation completed (i.e.,
psychological evaluation report, occupational therapy evaluation report,
speech/language therapist's evaluation results reflected in the eligibility report,
etc.).An evaluation/reevaluation report shall include a summary of assessments.
(20) "Extended school year (ESY) services" mean special education and related services
that:
(a) Are provided to a child with a disability beyond the normal school year of the
LEA;
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(b) In accordance with the child's IEP; and
(c) At no cost to the parents of the child or the student.
(d) Meet the standards of the Department.
(21) "Family Education Rights and Privacy Act (FERPA)"means the collective name for
federal legislation prohibiting educational agencies or institutions from releasing
education records of students unless consistent with terms of Act 20 U.S.C. § 1232
and 34 CFR § Part 99.
(22) "Free appropriate public education (FAPE)" means special education and related
services that:
(a) Are provided at public expense, under public supervision and direction, and
without charge to the parents or student;
(b) Meet the standards of the Department, including the requirements of these
Rules, Regulations and Minimum Standards for the Governance of Tennessee
Public Schools;
(c) Include preschool, elementary school or secondary school education in
Tennessee; and,
(d) Are provided in conformity with an individualized education program (IEP).
(23) "Functional behavior assessment (FBA)." A process for analyzing the reason why
students engage in certain behaviors. The FBA examines the context (antecedents
and consequences) in which behaviors occur. The process provides educators an
opportunity to develop effective intervention plans as part of the IEP for the students
with disabilities.
(24) "General curriculum" refers to the curriculum approved by the State Board of
Education.
(25) "Individuals with Disabilities Education Act (IDEA)" means the collective name for
federal legislation codified at 20 USC § 1400 et seq. as amended, providing federal
funds for early intervention services and special education and related services to
children with disabilities in accordance with standards set by the IDEA.
(26) "Illegal drug" means a controlled substance; but does not include a substance that is
legally possessed or used under the supervision of a licensed health care professional
or that is legally possessed or used under the IDEA or under any other provision of
Federal or State Law.
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(27) "Independent educational evaluation (IEE)" means an evaluation conducted by a
qualified examiner not employed by the local school system which is responsible for
the education of the child. An independent education evaluation is not necessarily a
private evaluation.
(28) "Individualized Education Program (IEP)" means a written statement for a child
eligible for special education that is developed, reviewed, and/or revised in an IEP
team meeting.
(29) "Individualized Family Service Plan (IFSP)" means a written plan, developed in
accordance with IDEA Part C, for providing early intervention and other services to a
child eligible and the child's family.
(30) "Individualized education program team (IEP team) formerly M-Team," means a
group of individuals responsible for determining the eligibility of a child and for
developing or reviewing/revising an IEP for a child eligible for special education.
(31) "Initial referral" means a request for a comprehensive evaluation for special
education and related services under IDEA.
(32) "Least restrictive environment(LRE)" provides an assurance 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 without disabilities; and
(b) Special classes, separate schooling or other removal of children with
disabilities from the general educational environment occurs only if the nature
or severity of the disability is such that education in general classes with the
use of supplementary aids and services cannot be achieved satisfactorily.
(33) "Local school system", also known as "local education agency (LEA)", is a public
board of education or other public authority legally constituted within the state for
either administrative control or direction of, or to perform a service function for,
public elementary or secondary schools in a city, county, township, school district, or
other political subdivision of Tennessee, or for a combination of school districts or
counties as are recognized in the state as an administrative agency for its public
elementary or secondary schools.
(34) "Native language" means 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), the language normally
used by the child in the home or learning environment; and
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(c) For an individual with deafness or blindness, or for an individual with no
written language, the mode of communication is that normally used by the
individual (such as sign language, Braille, or oral communication).
(35) "Paraprofessional" means an individual with at least a high school diploma or
recognized equivalent that is employed in the provision of special education services
under the supervision of a professional with appropriate credentials for their
profession (licensed or certified according to Tennessee requirements) 20 USC §
1111g(3). A paraprofessional shall meet the professional and employment standards
set by the State Board of Education pursuant to TCA § 49-10-110(g)(2)[Traineeships
and Fellowship] and this rule."
(36) "Parent" is defined as meaning:
(a) A natural or adoptive parent of a child;
(b) A guardian but not the State if the child is a ward of the State;
(c) A person acting in the place of a parent (such as a grandparent or stepparent
with whom the child lives, or a person who is legally responsible for the
child's welfare);
(d) A surrogate parent who has been appointed in accordance with these
regulations; or,
(e) A foster parent may act as a parent if:
1. The natural parent's authority to make educational decisions on the
child's behalf has been extinguished under Tennessee law; and
2. The foster parent:
(i) Has an ongoing, long term relationship with the child for more
than one (1) year in duration
(ii) Is willing to make the educational decisions required of parents
under the IDEA; and
(iii) Has no interest that would conflict with the interest of the
child.
(37) "Participating agency" means any agency or institution that collects, maintains, or
uses personally identifiable information, or from which information is obtained under
State or Federal Law.
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(38) "Personally identifiable information" means:
(a) The name of the child, the child's parent(s), or other family member(s);
(b) The address of the child;
(c) A personal identifier, such as the child's social security number or student
number; or,
(d) A list of personal characteristics or other information that would make it
possible to identify the child with reasonable certainty.
(39) "Preschool age" means the age range of three through five years.
(40) "Procedural Safeguards" means the processes established by Federal and State
Regulations to ensure that the mandates of IDEA are properly carried out by the State
and the LEA.
(41) "Profession or Discipline" means a specific occupational category that:
(a) Provides special education and related services to children with disabilities
under Part B of the IDEA;
(b) Has been established or designated by the State;
(c) Has a required scope of responsibility and degree of supervision; and
(d) Is not limited to traditional occupational categories.
(42) "Qualified personnel" means individuals who have met State approved or recognized
certification, licensure, registration, or other comparable requirements that apply to
the area in which they are providing special education or related services.
(43) "Related services" means transportation and such developmental, corrective, and
other supportive services as required to assist a child eligible for special education to
benefit from special education. It includes speech-language pathology and audiology
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. The
term also includes school health services, social work services in schools, and parent
counseling and training.
(a) The terms used in this definition are defined as follows:
1. Audiology includes:
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(i) Identification of children with hearing loss;
(ii) Determination of the range, nature, and degree of hearing loss,
including referral for medical or other professional attention for
the habilitation of hearing;
(iii) Provision of habilitative activities, such as language
habilitation, auditory training, speech reading (lip-reading),
hearing evaluation, and speech conservation;
(iv) Creation and administration of programs for prevention of
hearing loss;
(v) Counseling and guidance of children, parents, and teachers
regarding hearing loss; and
(vi) Determination of children's needs for group and individual
amplification, selecting and fitting an appropriate aid, and
evaluating the effectiveness of amplification.
2. Counseling services are services provided by qualified social workers,
psychologists, school counselors, or other qualified personnel.
3. Early identification and evaluation of disabilities in children means the
implementation of a formal plan for identifying a disability as early as
possible in a child's life.
4. Medical services are services provided by a licensed physician to
determine a child's medically related disability that results in the
child's need for special education and related services.
5. Occupational therapy means a service provided by a qualified
occupational therapist and includes:
(i) Improving, developing or restoring functions impaired or lost
through illness, injury, or deprivation; and,
(ii) Improving ability to perform tasks for independent functioning
if functions are impaired or lost, and
(iii) Preventing, through early intervention, initial or further
impairment or loss of function.
6. Orientation and mobility services:
(i) Are services provided to students who are blind or visually
impaired by qualified personnel to enable those students to
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attain systematic orientation to and safe movement within their
environments in school, home, and community; and
(ii) Includes teaching students the following, as appropriate:
(I) Spatial and environmental concepts and use of
information received by the senses (such as sound,
temperature and vibrations) to establish, maintain, or
regain orientation and line of travel (e.g., using sound at
a traffic light to cross the street);
(II) To use the long cane to supplement visual travel skills
or as a tool for safely negotiating the environment for
students with no available travel vision;
(III) To understand and use remaining vision and distance
low vision aids; and,
(IV) Other concepts, techniques, and tools.
7. Parent counseling and training is :
(i) Assisting parents in understanding the special needs of their
child;
(ii) Providing parents with information about child development;
and,
(iii) Helping parents to acquire the necessary skills that will allow
them to support the implementation of their child's IEP or
IFSP.
8. Physical therapy is a service provided by a qualified physical therapist.
9. Psychological services includes:
(i) Administering psychological and educational tests, and other
evaluation and assessment procedures;
(ii) Interpreting evaluation and assessment results;
(iii) Obtaining, integrating, and interpreting information about child
behavior and conditions relating to learning;
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(iv) Consulting with other staff members in planning school
programs to meet the special needs of children as indicated by
psychological tests, interviews, and behavioral assessments;
(v) Planning and managing a program of psychological services,
including psychological counseling for children and parents;
and,
(vi) Assisting in developing positive behavioral intervention
strategies.
10. Recreation includes:
(i) Assessment of leisure function;
(ii) Therapeutic recreation services;
(iii) Recreation programs in schools and community agencies; and,
(iv) Leisure education.
11. Rehabilitation counseling services are services provided by qualified
personnel in individual or group sessions that focus specifically on
career development, employment preparation, achieving
independence, and integration in the workplace and community of a
child with a disability. The term also includes vocational
rehabilitation services provided to a student with disabilities by
vocational rehabilitation programs funded under the Rehabilitation Act
of 1973, as amended.
12. School health services are services provided by a qualified school
nurse or other qualified person.
13. Social work services in schools include:
(i) Preparing a social or developmental history on a child with a
disability;
(ii) Group and individual counseling with the child and family;
(iii) Working in partnership with parents and others on those
problems in a child's living situation (home, school, and
community) that affect the child's adjustment in school;
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(iv) Mobilizing school and community resources to enable the child
to learn as effectively as possible in his or her educational
program; and
(v) Assisting in developing positive behavioral intervention
strategies.
14. Speech-language pathology services include:
(i) Identification of children with speech or language impairments;
(ii) Diagnosis and appraisal of specific speech or language
impairments;
(iii) Referral for medical or other professional attention necessary
for the habilitation of speech or language impairments;
(iv) Provision of speech and language services for the habilitation
or prevention of communicative impairments; and,
(v) Counseling children, and teachers regarding speech and
language impairments.
15. Transportation includes:
(i) Travel to and from school and between schools;
(ii) Travel in and around school buildings; and,
(iii) Specialized equipment (such as special or adapted buses, lifts,
and ramps), if required to provide special transportation for a
child with a disability.
(44) "Reevaluation" means a re-determination of a child's eligibility for special education
and related services by an IEP team at least once every three years or more
frequently, if conditions warrant or if requested by the child's parent or teacher.
(45) "SEA" is an acronym for State Education Agency.
(46) "Special education" means specially designed instruction, at no cost to the parents or
student, to meet the unique educational needs of a child eligible for special education,
including:
(a) Instruction conducted in the classroom, in the home, in hospitals and
institutions, and in other settings; and,
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(b) Instruction in physical education.
(c) Speech-language services, or any other related service, if the service is
considered special education rather than a related service;
(d) Vocational education.
(e) Travel training.
(f) The terms in this definition are defined as follows:
1. At no cost means that all specially-designed instruction is provided
without charge, but does not preclude incidental fees that are normally
charged to students who are nondisabled or their parents as a part of
the general education program.
2. Physical education means the development of:
(i) Physical and motor fitness;
(ii) Fundamental motor skills and patterns; and
(iii) Skills in aquatics, dance, and individual and group games and
sports (including intramural and lifetime sports).
3. Physical education includes special physical education, adapted
physical education, movement education, and motor development.
4. Specially-designed instruction means adapting, as appropriate to the
needs of a child eligible for special education under this part, the
content, methodology, or delivery of instruction:
(i) To address the unique needs of the child that result from the
child's disability; and
(ii) To ensure access of the child to the general curriculum, so that
he or she can meet the educational standards that apply to all
children.
5. Travel training is providing instruction, as appropriate, to children
with significant cognitive disabilities, and any other children with
disabilities who require this instruction, to enable them to:
(i) Develop an awareness of the environment in which they live;
and
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(ii) Learn the skills necessary to move effectively and safely from
place to place within that environment (such as in school, in the
home, at work, and in the community).
(47) "State approved or recognized certification, licensing, registration, or other
comparable requirements" means the requirements that a State legislature either has
enacted or has authorized a State agency to promulgate through rules to establish the
entry-level standards for employment in a specific profession or discipline in that
State.
(48) "Substantial evidence" means beyond a preponderance of the evidence.
(49) "Supplementary aids and services" means aids, services and other supports that are
provided in general education classes or other education-related settings to enable
children eligible for special education to be educated with children without
disabilities to the maximum extent appropriate.
(50) "Surrogate Parent" means an individual appointed by the LEA to act as a surrogate
for the parent in order to ensure that the rights of a child eligible for special education
services under IDEA are protected.
(51) "Tennessee's Early Intervention System (TEIS)" means the name for the entity
established by the Tennessee Department of Education (designated the lead agency)
to be responsible for the planning, implementation, supervision, monitoring, and
technical assistance for the state-wide early intervention system for infants and
toddlers with disabilities in an accordance with IDEA, Part C.
(52) "Transition" means the steps to be taken, in accordance with Federal and State
Regulations for IDEA, to support the child's purposeful and organized move from:
(a) One program to another;
(b) The early intervention system to a preschool program; or
(c) School to "post-school" activities.
(53) "Weapon" means a weapon, device, instrument, material, or substance, animate or
inanimate, that is used for or readily capable of, causing death or serious bodily
injury, except that such term does not include a pocket knife with a blade less than 2.5
inches in length (18 U.S.C. § 930 (g) (2).
0520-1-9-.02 Relationship to General Education Programs
(1) The goals of education described in Tennessee Minimum Rules and Regulations
Chapter 0520-1-3-.05 and Tennessee curriculum frameworks shall serve as the basis
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for developing educational programs. Each local school system must provide a
variety of programs and services to meet the educational needs of all students
including the needs of students eligible for special education.
(2) Alternative programs must be provided when appropriate educational goals cannot be
met in the general education program.
(3) School improvement plans must include a continuum of educational strategies and
programs to address the educational needs of all students, including the needs of
students eligible for special education.
(4) As a component of child find activities, general education has specific responsibilities
that include the following:
(a) Systematic screening of all children in specific grade levels residing within its
jurisdiction;
(b) Reviewing the educational performance of children who are high risk;
(c) Providing interventions and documentation prior to referral for special
education evaluation. These intervention strategies should be implemented in
the general education program.
(5) The Department shall make available to the public reports on assessments of all
children with the same frequency and in the same detail as it reports on the
assessment of children without disabilities to include:
(a) The number of children with disabilities participating in:
1. Regular assessments; and
2. Alternate assessments.
(b) Reports to the public must include:
1. The performance results of children eligible for special education if
doing so would be statistically sound and would not result in the
disclosure of performance results identifiable to individual children.
2. Aggregated data that include the performance of children with
disabilities together with all other children; and
3. Disaggregated data on the performance of children with disabilities.
0520-1-9-.03 Administration of Special Education and Early Intervention Services
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(1) The Department of Education is responsible for all of the following:
(a) Ensuring that all children eligible for special education including those in
private school, ages birth through the school year a student turns 22, who are
in need of special education and related services, regardless of the severity of
their disability, are identified, located, and evaluated. Each local school
system and state operated program shall:
1. Develop and implement child find activities to ensure that all children
to include highly mobile children (migrant and homeless children) and
those children who are suspected of being a child with a disability,
even though they are advancing from grade to grade, are identified,
located and evaluated; and
2. Develop and implement a practical method to determine which
children with disabilities are receiving special education and related
services.
(b) Ensuring an effective and smooth transition of children participating in early
intervention programs to preschool programs by their third birthday. If the
child's birthday occurs during the summer, the child's IEP team shall
determine the date when services will begin, but no later than the beginning of
the next school year.
(c) Ensuring a free appropriate public education is available to all children
eligible for special education who reside in Tennessee, including those
children who have been suspended or expelled for more than ten (10) school
days. Also, ensuring a full educational opportunity goal to all children
eligible for special education, birth through the school year the child turns 22.
(d) Coordinating and supervising the provision of all publicly funded special
education and related services for children eligible for special education in
Tennessee and ensuring that such education and services meet state
educational program standards.
(e) Approving the local school system's comprehensive plan for provision of all
special education and related services.
(f) Monitoring and enforcing compliance with this subchapter and applicable
federal law in local education agencies and private facilities.
(g) Designing, implementing, and coordinating a comprehensive system of
personnel development to ensure an adequate supply of qualified special
education, general education and related services personnel that meets the
requirements of applicable state and federal law.
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(h) Implementing strategies to meet identified personnel needs including in-
services and pre-service preparation to ensure that all personnel who work
with children eligible for special education (both professional and
paraprofessional personnel who provide special education services) have the
skills and knowledge necessary to meet their needs. Strategies include:
1. Preparation of general and special education personnel with the
knowledge and collaborative skills needed to meet the needs of
children eligible for special education;
2. Preparation of professionals and paraprofessionals in the area of early
intervention;
3. Collaboration with institutions of higher education and other entities,
which prepare personnel, who work with children eligible for special
education;
4. Development of collaborative agreements with other states; and,
5. Work with institutions of higher education to prepare professionals
and paraprofessional personnel who work with children eligible for
special education to support quality professional development
programs that meet state and local needs.
6. Recruit, prepare, and retain qualified personnel.
7. Provision for the joint training of parents and special education related
services and general education personnel.
(i) Collecting and analyzing data to determine if significant discrepancies exist in
the rate of long-term suspensions and expulsions, graduation, and dropouts of
children eligible for special education among local school systems when
compared to such rates for children without disabilities in the local school
system.
(j) Ensuring that children eligible for special education, including children in
public and private institutions or other care facilities, are educated with
children without disabilities, to the maximum extent appropriate.
(k) Providing a continuum of alternative placements to meet the unique needs of
each child eligible for special education.
(l) A method of ensuring services shall be established through an interagency
agreement with other state agencies.
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(m) Ensuring that an Interagency Agreement among the Department of Education
and other state agencies is implemented to allow a free and appropriate public
education for children eligible for special education and related services.
(2) Local school system duties. The local system shall demonstrate to the satisfaction of
the Department that it does all of the following:
(a) Identifies, locates, and evaluates all children who are suspected of having
disabilities, including children attending non-public schools, regardless of the
severity of their disabilities, and who may be in need of special education and
related services. These services may be provided to children eligible for
special education under early transition agreements who are not yet 3 years of
age. If the child's birthday falls during the summer months, the IEP team will
determine when special education services begin but no later than the
beginning of the next school year.
(b) Makes available a free appropriate public education to all children ages 3
through the school year in which they reach age 22 eligible for special
education, including students who have been suspended or expelled for more
than ten (10) school days in a school year.
(c) Includes children eligible for special education in state and district-wide
assessments, with appropriate accommodations and modifications where
necessary, or in alternate assessments. The type of assessment must be
determined by the IEP team consistent with the State guidelines for
participation of students with disabilities in state/district wide assessments.
(d) Ensures that children eligible for special education participating in early
intervention programs shall experience a smooth and effective transition to
preschool programs and, that by the third birthday, an IEP has been developed
and implemented for the child. The local school system shall participate in the
transition planning meeting at least ninety (90) days prior to the third birthday
of a child who maybe eligible for special education under these regulations.
(e) Ensures that children eligible for special education who are enrolled in private
schools or facilities by the local school system are provided special education
and related services, in accordance with the IEP, at no cost to them or to their
parents.
(f) Ensures that children eligible for special education who are enrolled in private
schools or facilities by their parents have an opportunity for special education
services and that the amount spent to provide those services is a proportionate
amount of the federal funds made available to the district. No unilaterally
placed private school children with disabilities have an individual entitlement
to receive some or all of the special education and related services that the
child would receive if enrolled in a public school.
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(g) Establish and have in effect policies, procedures, and programs that are
consistent with these regulations for implementing the provision of special
education and related services. To ensure compliance with applicable state
and federal regulations to include:
1. Free appropriate public education;
2. Child find procedures;
3. Evaluation/reevaluation and determination of eligibility procedures;
4. IEP/IFSP procedures;
5. Confidentiality procedures;
6. Private school services procedures;
7. Goals for performance of children eligible for special education
through school improvement planning;
8. Inclusion of children eligible for special education in state and district-
wide assessment programs with appropriate accommodations and
modifications and the reporting of assessment data;
9. Interagency agreements to ensure FAPE for all children;
10. Maintenance of effort;
(h) Supplementing the provision of special education funds but not commingling
or supplanting the provision of special education funding;
(i) Annually publicizes information regarding its special education programs and
services and child find activities.
(j) Ensures that both professional and paraprofessionals are included in service
training annually.
(k) Submits to the Commissioner of Education a comprehensive plan on or before
July 1 with program narratives and assurances for the provision of special
education and related services including all of the following:
1. A census of children eligible for special education showing the total
number and distribution of children within its jurisdiction who are
provided special transportation.
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2. An inventory of the personnel who provide instruction and other
services to children eligible for special education and a listing of
facilities;
3. A description of the extent to which Department standards governing
special education services will be met including a goal of providing
full educational opportunity to all children eligible for special
education;
4. An assurance that IDEA funds will be used to supplement and not to
supplant state and local funds and expended only for the excess cost
of providing special education and related services to children eligible
for special education;
5. An assurance that to the maximum extent appropriate, children eligible
for special education, including children in public and private
facilities, are educated with children without disabilities. Special
classes, separate schooling or other removal of children eligible for
special education from the general educational environment occurs
only if the nature or severity of the disability is such that education in
the general education classes with the use of supplementary aids and
services cannot be achieved satisfactorily;
6. An assurance that a continuum of alternative placements is available to
meet the needs of children eligible for special education and related
services;
7. A detailed budget and end of the year report of expenditures of all
funds available to provide special education and related services is
provided; and
8. An assurance that a free appropriate public education is available to all
children eligible for special education from 3 through the school year
in which the student reaches 22 years of age, including children who
have been suspended or expelled for more than ten (10) school days in
a school year.
(3) Specific funding requirements:
(a) For the purpose of entitlement to academic program funds from the Basic
Education Program (BEP), children eligible for special education shall be
counted in the same manner as children without disabilities. To supplement
the academic program funds earned and paid from the BEP, special education
funds from the BEP shall be paid to local school systems for the purpose of
providing special education and related services to children eligible for special
education.
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(b) Special education funds from the BEP shall be allocated to each local public
school system in an amount to be determined by applying the prescribed
formula to the number of children eligible for special education identified and
served during the preceding school year.
(c) The local school system complies with maintenance of effort if it budgets at
least the same total or per-capita amount from the combination of state and
local funds as the local school system spent for that purpose from the prior
year. The local school system may reduce the level of expenditures below the
level for the proceeding year if the reduction is attributable the following:
1. The voluntary departure, by retirement or otherwise, or departure for
just cause, of special education or related services personnel, who are
replaced by qualified, lower-salaried staff;
2. A decrease in the enrollment of children with disabilities;
3. The termination of the obligation of the agency, consistent with this
part, to provide a program of special education to a particular child
with a disability that is an exceptionally costly program, as determined
by the SEA, because the child
(i) Has left he jurisdiction of the agency;
(ii) Has reached the age at which the obligation of the agency to
provide FAPE to the child has terminated; or
(iii) No longer needs the program of special education.
4. The termination of costly expenditures for long-term high cost
purchases.
(d) Each local school system shall establish appropriate policies and procedures
for the administration of IDEA and Preschool funds and shall maintain
appropriate records and reports to be used in planning and evaluating special
education programs and services. The division shall notify each local school
system of its allocation of federal funds annually.
(e) Two or more local school systems may submit a consolidated annual
comprehensive plan, with the approval of the division, under the conditions of
federal statute:
1. Those participating in a consolidated plan will be jointly responsible
for implementing a free appropriate public education program in the
participating local school system; and,
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2. The consolidated plan must designate one of the local school systems
as the fiscal agent for the plan.
(f) Local school systems shall use IDEA funds for the excess costs of providing
special education and related services to children eligible for special
education. IDEA funds received by the local school system must not be
commingled with state funds.
(g) Local school systems must maintain records, which demonstrate compliance
with the excess cost, non-supplanting, and comparability requirements for at
least five years after completion of the project described in the application.
(h) For children eligible for special education unilaterally placed in private
schools, the same proportionate amount that is spent on public school children
eligible for special education from IDEA and Preschool grants is allocated for
the number of private school children eligible for special education within the
local school system's jurisdiction. The preceding December 1 census count is
used in calculating private and public school ratios to determine the
proportionate amount.
(4) Census.
(a) Each local school system shall maintain an accurate record of all children
eligible for special education ages 3 through the school year a student turns 22
years of age who are residing within its jurisdiction. The census shall be taken
on December 1 of each year and at other times as required.
(5) Evaluation of Programs and Services.
(a) Local school systems shall evaluate their special education programs and
related services according to evaluative criteria issued by federal and state
authorities.
(6) Monitoring.
(a) Local school systems, state agencies and private schools shall be monitored on
a periodic basis by the division to determine the extent to which special
education and related services are being implemented in the least restrictive
environment and to assure compliance with applicable laws and regulations.
(b) The state shall provide technical assistance in self-evaluation, program
planning and implementation of any necessary corrective action plans shall be
provided.
(7) Advisory Council for Students with Disabilities.
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(a) The State has established and will continue to maintain an advisory council on
the education of children with disabilities for special education as described in
TCA § 49-10-105 and as required by §34 C.F.R 300.650- 300.653. Advisory
council members are appointed by the Governor.
(b) Membership.
1. The advisory council shall be composed of a maximum of twenty-five
(25) members appointed by the Governor, the membership shall be
representative of the State population and composed of individuals
involved in or concerned with the education of children eligible for
special education, including;
(i) Parents of children eligible for special education;
(ii) Individuals with disabilities;
(iii) Teachers;
(iv) Representatives of institutions of higher education that
prepares special education and related services personnel;
(v) State and local education officials;
(vi) Administrators of programs for children eligible for special
education;
(vii) Representatives of other State agencies involved in the
financing or delivery of related services to children eligible for
special education;
(viii) Representatives of private schools and if any, public charter
schools;
(ix) At least on representative of a vocational, community or
business organization concerned with the provision of
transition services; and
(x) Representatives from the State juvenile and adult correction
agencies.
2. A majority of the council must be individuals with disabilities or
parents of children eligible for special education.
3. The advisory council shall be composed of persons broadly
representative of the community organizations interested in the
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disabled, professions related to the educational needs of the disabled,
and the general public.
4. The governor shall appoint the members of the advisory council for
three-year terms. In making appointments to the advisory council, the
governor shall strive to ensure that at least one (1) person serving on
the council is sixty (60) years of age or older and that at least one (1)
person serving on the council is a member of a racial minority.
5. Vacancies shall be filled for the unexpired term in the same manner as
original appointments.
(c) Advisory council functions.
1. The advisory council shall:
(i) Consider any problems presented to it by the governor, the
commissioner, the state board of education or the director of
the division of special education, and give advice thereon;
(ii) Comment publicly on any rules or regulations proposed for
issuance pursuant to §49-11-201 parts 1-6 regarding the
education of children with disabilities;
(iii) By July 1 of each year, the advisory council shall make annual
report to the governor and general assembly, and state board of
education, which report shall be available to the general public
and shall present its views of the progress or lack thereof made
in special education by the state, its agencies and institutions,
and its school districts during the preceding year. The annual
report should include council activities and suggestions to the
Department of Education. This report must be made available
to the public in a manner consistent with other public reporting
requirements of Part B of the IDEA.
(iv) Advise the department in developing evaluations and reporting
on data to U.S. Department of Education Secretary.
(v) Advise the department in developing corrective action plans to
address findings identified in Federal monitoring reports; and
(vi) Advise the state board of education and the department in
developing and implementing policies relating to the
coordination of services for children with disabilities.
(d) Advising on children eligible for special education in adult prisons.
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1. The advisory council also shall advise on the education of children
with disabilities who have been convicted as adults and incarcerated in
adult prisons, even if, the Governor (or another individual pursuant to
state law) has assigned this authority another state agency. A State
may assign the general supervision responsibility for those students to
a public agency other than the Department of Education.
(e) Advisory council procedures.
1. The advisory council annually shall elect its own chair and vice chair.
2. The director of the division of special education shall meet with and
act as secretary to the advisory council, and within available personnel
and appropriations, shall furnish meeting facilities and staff services
for the advisory council.
3. The advisory council shall meet as often as necessary to conduct its
business.
4. Official minutes must be kept on all council meetings and must be
made available to the public on request.
5. All advisory council meetings and agenda items must be announced
enough in advance of the meeting to afford interested parties a
reasonable opportunity to attend.
6. Meetings must be open to the public.
7. Interpreters and other necessary services must be provided at council
meetings for council members or participants. The State may pay for
the services from federal funds.
8. The advisory council shall serve without compensation but the State
must reimburse the council for reasonable and necessary expenses for
attending meetings and performing duties. The State may use federal
funds for this purpose.
0520-1-9-.04 Child Find
(1) Each local school system shall develop and implement procedures for creating public
awareness of special education programs and services. This includes a
comprehensive system of child find activities for all children suspected of having a
disability in public and private schools and facilities. Any child find activities shall
be comparable for children in private schools and facilities.
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(2) A notice must be published or announced in newspapers, other media, or both, with
circulation adequate to notify parents of the activities conducted by the local school
system.
(3) Any child suspected of having a disability shall be referred to the local school system.
All referrals shall be in writing to the school principal or special education
administrator. The local school system shall establish written procedures for
accepting, processing and documenting receipt of each referral. The procedures shall
be approved by the Division.
0520-1-9-.05 Referral, Initial Evaluation, and Reevaluation
(1) Each local school system shall develop an organized referral process, communicated
to all professional personnel within the system, and parents, and persons within the
community, for conducting initial evaluations or reevaluations of children who may
be eligible for special education.
(2) The referral process should include provisions to respond to initial requests for
evaluations, securing informed parental consent for initial evaluations or
reevaluations, identifying and convening IEP teams, conducting comprehensive
individual evaluations, and if a determination of special education eligibility and a
need for special education services is established - the development of an individual
education program and provisions for placement of the child.
(3) The standard timeframe from informed written parental consent to the placement of a
child eligible for special education will be limited to (40) school days. A reasonable
exception may be approved by the department if, based on the unique needs of the
child being evaluated, extra time is required. The granting of any exception will be
based on the documented individual needs of the child.
(4) The child's parents, teachers and other qualified professional personnel, as
appropriate, shall be a part of the assessment process to evaluate the child. The
comprehensive evaluation shall be an in-depth assessment of all areas of suspected
physical, cognitive and social/emotional disability. Attempts to gather all relevant
educational, functional, and developmental information that adversely affects the
child's educational performance and progress in the general curriculum shall be
documented. Persons involved in the evaluation of the child shall provide
documentation to the IEP team to review prior to determining the child's eligibility
for special education services and in considering the child's educational needs when
writing the IEP. If consent for an evaluation is refused by the parents, the local
school system may pursue an evaluation through mediation and/or due process.
(5) As part of the initial evaluation and, if appropriate, as part of any reevaluation, the
IEP team shall:
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(a) Review existing evaluation data on the child, including:
1. Evaluations and information provided by the parents;
2. Current classroom-based assessments and observations; and
3. Observations by other teachers and related service providers.
(b) On the basis of the review of existing evaluation data and input from the
child's parents, identify what additional data, if any, are needed to determine:
1. Whether the child has a disability or in the case of a reevaluation of a
child, whether the child continues to have a disability;
2. The present levels of performance and educational needs of the child;
3. Whether the child needs special education and related services, or in
the case of a reevaluation of a child, whether the child continues to
need special education and related services; and,
4. Whether any additions or modifications to the special education and
related services are needed to enable the child to meet the measurable
annual goals written in the IEP and to participate, as appropriate, in the
general curriculum.
(6) Each local school system shall ensure that an individual evaluation of each child
eligible for special education is conducted every three (3) years or more frequently if
conditions warrant or if the child's parent or teacher requests a reevaluation.
(7) On reevaluations, a meeting may not be required if members of the IEP team decide
that no additional data is necessary. However, if additional data are needed or the
parents' request an evaluation, the local school system shall obtain consent or
document attempts to obtain consent to evaluate the child.
(8) An IEP team meeting shall determine if the child continues to be a child eligible for
special education. At this time, an IEP may be reviewed/revised and placement will
be determined based upon the child's unique educational needs with the various
options of services considered.
(9) The parents shall receive a copy of all evaluation reports, the eligibility report and the
IEP. At the triennial reevaluation, the evaluation report may consist of a summary of
previous and current data and observations.
(10) The IEP for the child shall include all the components within the federal statute.
Children eligible for special education who are unilaterally placed in private schools
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by their parents shall have a service plan with goals and objectives for the service
provided.
(11) No local school system shall provide special education or related services to a child
eligible for special education until an initial IEP is completed and the determination
of education programs and services has been agreed upon by the local school system
and parent(s).
(12) At a minimum, the local school system shall meet the following evaluation
procedures:
(a) Tests and other evaluation materials used to assess a child:
1. Are selected and administered so as not to be discriminatory on a
racial or cultural basis; and
2. Are provided and administered in the child's native language or other
mode of communication, unless it is clearly not possible to do so.
(b) Materials and procedures used to assess a child with limited English
proficiency are selected and administered to ensure that they measure the
extent to which the child has a disability and needs special education, rather
than measuring the child's English language skills
(c) A variety of evaluation tools and strategies are used to gather relevant
functional and developmental information about the child, including
information provided by the parent, and information related to enabling the
child to be involved in and progress in the general curriculum (for a preschool
child, to participate in appropriate activities) that may assist in determining:
1. Whether the child is an eligible child with special education; and
2. The content of the child's IEP.
(d) Any standardized tests that are given to a child have been validated for the
specific purpose for which they are used and are administered by trained and
knowledgeable personnel in accordance with any instructions provided by the
producer of the test.
(e) If an evaluation is not conducted under standard conditions, a description of
the extent to which it varied from standard conditions must be included in the
evaluation report.
(f) Tests and other evaluation materials include those tailored to assess specific
areas of educational need and not merely those that are designed to provide a
single general intelligence quotient.
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(g) Tests are selected and administered to a child with impaired sensory, manual,
or speaking skills, the test results accurately reflect the child's aptitude or
achievement level or whatever other factors the test purports to measure,
rather than reflecting the child's impaired sensory, manual, or speaking skills
(unless those skills are the factors that the test purports or measure).
(h) No single procedure is used as the sole criterion for determining whether a
child is a child with a disability and for determining an appropriate
educational program for the child.
(i) The child is evaluated in all areas related to the suspected disability, including,
if appropriate, health, vision, hearing, social and emotional status, general
intelligence, academic performance, communicative status, and motor
abilities.
(j) In evaluating each child with a disability, the evaluation is sufficiently
comprehensive to identify all of the child's special education and related
services needs, whether or not commonly linked to the disability category in
which the child has been classified.
(k) The local school system uses technically sound instruments that may assess
the relative contribution of cognitive and behavioral factors, in addition to
physical or developmental factors.
(l) The local school system uses assessment tools and strategies that provide
relevant information that directly assists persons in determining the
educational needs of the child.
0520-1-9-.06 Determination of Eligibility
(1) Upon completing the evaluation/reevaluation, an IEP team must determine if the child
is a child eligible for special education. The local school system must provide a copy
of the evaluation/reevaluation report and determination of eligibility report to the
parent.
(2) A child may not be determined to be eligible if:
(a) The determinant factor for that eligibility determination is:
1. Lack of instruction in reading or math; or
2. Limited English proficiency.
(b) The child does not otherwise meet any eligibility criteria.
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(3) A local school system must evaluate a child with a disability before determining that
the child is no longer eligible for special education. An evaluation is not required
before the termination of a student's eligibility due to graduation with a regular high
school diploma or exceeding the age eligibility for FAPE.
(4) In interpreting the evaluation data, for the purpose of determining if a child is a child
eligible for special education, each local school system shall:
(a) Draw upon information from a variety of sources, including aptitude and
achievement tests, parent input, teacher recommendations, physical condition,
social or cultural background and adaptive behavior; and,
(b) Ensure that information obtained from all of these sources is documented and
carefully considered. Determination of eligibility shall be made by the IEP
team.
(5) An IEP must be developed for the child if a determination is made that the child:
(a) Has a disability; and
(b) Needs special education and related services.
0520-1-9-.07 Specific Eligibility Standards.
State guidelines and standards will be established for determining program eligibility criteria,
evaluation procedures, and evaluation participants. Revisions to the eligibility criteria must
be recommended by a Task Force within the disability category. Upon recommendations
from the Advisory Council, the Division of Special Education will submit the standards to
the Commissioner. The Commissioner, after approval will submit to the State Board of
Education for final review and approval. Copies of the eligibility criteria are available in the
Division of Special Education.
0520-1-9-.08 Provision of Free Appropriate Public Education (FAPE)
(1) A free appropriate public education shall be available to all children eligible for
special education, ages 3 through the school year the student turns 22, including those
children who have been suspended or expelled from school for more than ten (10)
school days in a school year. To meet this obligation each school district shall:
(a) Identify, locate, and evaluate all children eligible for special education,
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(b) Develop and implement child find activities to ensure that all children to
include highly mobile children (migrant and homeless children) and those
children who are suspected of being a child with a disability, even though they
are advancing from grade to grade, are identified, located and evaluated; and
(c) Provide services that address all of the child's identified special education and
related services needs, based on the child's unique needs and not on the
child's disability.
(2) Methods & Payments.
(a) Each district may use whatever State, Local, Federal, and Private sources of
support are available to meet the requirements of this rule. (For example, if it
is necessary to place a child eligible for special education in a residential
facility, a local school system could use joint agreements between the
agencies involved for sharing the cost of that placement.)
(b) The financial responsibility of each non-educational public agency, including
the Tennessee Medicaid agency (TennCare) and other public insurers of
children eligible for special education, must precede the financial
responsibility of the local school system (or the State agency responsible for
developing the child's IEP).
(c) In order to ensure that FAPE is provided to a child with a disability, parents
shall not be required to use private insurance to pay for special education and
related services. The LEA may access a parent's private insurance proceeds
only if the parent provides informed consent. Each time the LEA proposes to
access the parent's private insurance proceeds, it must:
1. Obtain parent consent; and
2. Inform the parents that their refusal to permit the LEA to access their
private insurance does not relieve the LEA of its responsibility to
ensure that all required services are provided at no cost to the parents.
34 C.F.R. § 300.142 (f).
(d) A LEA may use public insurance benefit programs in which a child with a
disability participates to provide or pay for services as permitted under the
public insurance agency, except the LEA:
1. May not require parents to incur an out of pocket expense such as
payment of a deductible or copay amount incurred in filing a claim for
services provided as a related service; (the LEA may pay the cost that
the parent otherwise would be required to pay;) and
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2. May not use a child's benefits under a public insurance program if that
use would:
(i) Decrease available lifetime coverage or any other insured
benefit;
(ii) Result in the family paying for services that would otherwise
be covered by the public insurance and that are required for the
child outside of the time the child is in school;
(iii) Increase premiums or lead to the discontinuation of insurance;
or
(iv) Risk loss of eligibility for home and community based waivers
based on aggregate health related expenditures. 34 CFR §
300.142 (e).
(e) A local school system may not delay implementing a child's IEP in any case
in which the payment source for providing or paying for special education and
related services to the child is being determined.
(3) Residential placement.
(a) If an IEP team determines placement in a public or private residential program
is necessary to provide special education and related services to a child
eligible for special education, the program, including non-medical care and
room and board, must be at no cost to the parents of the child or student.
(4) Proper functioning of hearing aids.
(a) Each local school system shall establish and implement procedures to ensure
that the hearing aids worn in school by children with hearing impairments,
including deafness, are functioning properly.
(5) Full educational opportunity goal.
(a) Each local school system must establish and implement a goal of providing full
educational opportunity to all children eligible for special education in the area
served by the local school system.
(6) Program options.
(a) Each local school system must ensure that its children eligible for special
education have available to them the variety of educational programs and
services available to children without disabilities in the area served by the
agency, including art, music, industrial arts, consumer and homemaking
education, prevocational and career development, and vocational education.
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(7) Nonacademic services.
(a) Each local school system must take steps to provide nonacademic and
extracurricular services and activities in the manner necessary to afford
children eligible for special education an equal opportunity for participation in
those services and activities.
(b) Nonacademic and extracurricular services and activities may include
counseling services, athletics, transportation, health services, recreational
activities, special interest groups or clubs sponsored by the local school system,
referrals to agencies that provide assistance to individuals with disabilities, and
employment of students, including both employment by the public agency and
assistance in making outside employment available.
(8) Facilities.
(a) Facilities, which serve students with disabilities, must be comparable to
facilities, which serve students without disabilities.
(b) Educational programs and facilities must be accessible where students with
physical disabilities and students without disabilities are both in attendance.
(c) Entrance to and from the facility must be accessible. If access is not visible at
the front of the facility, signs must be present to indicate where parking and
where access to the facility for individuals with disabilities are available.
(9) Transportation.
(a) Local school system shall provide eligible children with special transportation,
where necessary.
1. Children eligible for special education shall, whenever appropriate, be
provided transportation along with children who are not disabled.
Adaptations shall be made to meet the needs of children with
disabilities rather than separate transportation whenever appropriate.
2. Travel time for children eligible for special education shall not exceed
the travel time for other children, provided that exceptions may be
made on the recommendation of an IEP team.
3. Vehicles used to provide special transportation must meet the
requirements specified in Minimum Rules and Regulations 0520-1-5
4. Operators and attendants of vehicles providing special transportation
shall be given special training concerned with the needs and special
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requirements of disabled children, except where parents are
transporting their own children. Special attendants shall be provided
when in the judgement of the IEP team such services are necessary.
5. Contracting for special transportation is permissible provided that the
operators, attendants, and vehicles used by the contractor meet
minimum requirements established by the State Board of Education,
except where the parents are transporting their own children.
(10) Physical education.
(a) Physical education services, specially designed if necessary, must be made
available to every child with a disability. Each child eligible for special
education must be afforded the opportunity to participate in the general
physical education program available to children without disabilities unless:
1. The child is enrolled full time in a separate facility; or
2. The child needs specially designed physical education, as prescribed in
the child's IEP.
(b) If specially designed physical education is prescribed in a child's IEP, the
local school system responsible for the education of that child shall provide
the services directly or make arrangements for those services to be provided
through other public or private programs. The local school system responsible
for the education of a child eligible for special education who is enrolled in a
separate facility shall ensure that the child receives appropriate physical
education services.
(11) Assistive technology.
(a) Each local school system shall make available to a child eligible for special
education those assistive technology devices or assistive technology services,
or both, if required as a part of the child's:
1. Special education;
2. Related services; or,
3. Supplementary aids and services.
(b) On a case-by-case basis, the use of school-purchased assistive technology
devices in a child's home or in other settings is required if the child's IEP team
determines that the child needs access to those devices in order to receive
FAPE.
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(12) Extended school year services.
(a) Each local school system shall ensure that extended school year services are
available as necessary to provide FAPE. Extended school year services must
be provided only if a child's IEP team determines, on an individual basis, that
such services are necessary to provide FAPE.
(b) A local school system may not:
1. Limit extended school year services to particular categories of
disability; or
2. Unilaterally limit the type, amount, or duration of those services.
(c) The term extended school year services are special education and related
services that are provided to a child with a disability:
1. Beyond the normal school year of the local school system;
2. In accordance with the child's IEP;
3. At no cost to the parents of the child or student; and,
4. Meets the standards of the Department.
(13) FAPE requirements for students eligible for special education in adult prisons.
(a) The following requirements do not apply to students eligible for special
education who are convicted as adults under State law and incarcerated in
adult prisons:
1. The requirements relating to participation of children with disabilities
in general assessments, and
2. The requirements relating to transition planning and transition services
with respect to the students whose eligibility under Part B of the 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.
(b) Modifications of IEP or placement.
1. If a student eligible for special education, who is convicted as an adult
under Tennessee law and incarcerated in an adult prison, the IEP team
may modify the student's IEP or placement if the State has
demonstrated a bona fide security or compelling penological interest
that cannot otherwise be accommodated.
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2. The requirements relating to the definition of an IEP and the general
requirements relating to LRE do not apply with respect to these
modifications.
(14) Charter schools.
(a) Charter schools, when applicable, must ensure compliance with IDEA.
0520-1-9-.09 Composition of the IEP Team
(1) An IEP team for each child eligible for special education includes:
(a) One or both of the child's parents;
(b) At least one general education teacher(s) of the child (if the child is, or may
be, participating in the general education environment);
(c) At least one of the child's special education teacher(s) or certified/licensed
service provider, or if the child has not been previously enrolled in school, a
teacher or other specialist qualified to teach a child of his or her age in the
area(s) of a child who is suspected of having special education needs;
(d) At least one representative of the local school system, other than the child's
teacher, who:
1. Is an administrator or designee;
2. Is qualified to provide, or supervise the provision of specially designed
instruction to meet the unique needs of children with disabilities;
3. Is knowledgeable about the general curriculum; and,
4. Is knowledgeable about the availability of necessary resources to
ensure implementation of the IEP;
(e) An individual who can interpret the instructional implications of evaluation
and assessment results, who may also fulfill another role on the team;
(f) At the discretion of the parent or the local school system, other individuals
who have knowledge or special expertise regarding the child, including
related services personnel as appropriate. The determination of the
knowledge or special expertise of any individual shall be made by the party
(parents or local school system) who invited the individual to be a member of
the IEP; and
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(g) The child when appropriate.
(2) Requirement with respect to general education teacher.
(a) The general education teacher of a child eligible for special education, as a
member of the IEP team, must, to the extent appropriate, participate in the
development, review, and revision of the child's IEP, including assisting in the
determination of:
1. Appropriate positive behavioral interventions and strategies for the
child; and,
2. Supplementary aids and services, program modifications, or supports
for school personnel that will be provided for the child.
3. A general education teacher may not be required to be a member of a
child's IEP team, if the child has been placed in a separate school or is
not participating in general education and no change is anticipated by
any IEP team member.
(3) Transition.
(a) If one of the purposes of the meeting will be the consideration of the student's
transition service needs or needed transition services, the local school system
must invite a child eligible for special education of any age to attend his or her
IEP meeting. If the student does not attend the IEP meeting, the local school
system must take other steps to ensure that the student's preferences and
interests are considered.
(b) For each student with a disability beginning at age 14 (or younger, if
determined by the IEP team), and updated annually, a statement of the
transition service needs of the student.
(c) For each student beginning at age 16 (or younger, if determined by the IEP
team), a statement of needed transition services for the student, including, if
appropriate, a statement of the interagency responsibilities or any needed
linkages.
(d) If an agency invited to send a representative to a meeting does not do so, the
local school system shall take other steps to obtain participation of the other
agency in the planning of any transition services, such as documented phone
contacts.
0520-1-9-.10 Development of the IEP
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(1) General and Special Considerations.
(a) Each local school system is responsible for initiating and conducting meetings
to develop, review, and/or revise the IEP. In developing each child's IEP, the
IEP team shall consider:
1. The strengths of the child and the concerns of the parents for
enhancing the education of their child;
2. The results of the initial or most recent evaluation of the child; and,
3. As appropriate, the results of the child's performance on any general
state or district-wide assessment programs.
(b) The IEP team shall:
1. In the case of a child whose behavior impedes his or her learning or
that of others, consider, if appropriate, strategies, including positive
behavioral interventions, strategies, and supports to address that
behavior;
2. In the case of a child with limited English proficiency, consider the
language needs of the child as those needs relate to the child's IEP;
3. In the case of a child who has blindness or is visually impaired,
provide for instruction in Braille and the use of Braille unless the IEP
team determines that it is not appropriate for the child;
4. Consider the communication needs of the child, and in the case of a
child who is deaf or hearing impaired, consider the child's language
and communication needs, opportunities for direct communications
with peers and professional personnel in the child's language and
communication mode, academic level, and full range of needs,
including opportunities for direct instruction in the child's language
and communication mode; and,
5. Consider whether the child requires assistive technology devices and
services.
6. If, in considering these factors, the IEP team determines that a child
needs a particular device or service (including an intervention,
accommodation, or other program modification) in order for a child to
receive FAPE, the IEP team must include a statement to that effect in
the child's IEP.
(2) Initial IEP meetings.
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(a) Following the local school system's receipt of a written parental consent for
evaluation, and consistent with the local school system's process to provide
children eligible for special education with services and a special education
placement within (40) school days from the receipt of written parental consent
for evaluation system shall:
1. Evaluate the child;
2. Invite IEP team members to a meeting and,
3. Determine whether the child meets Tennessee criteria for a child with
a disability and requires special education and related services;
4. Develop an IEP for the child at this meeting or no later than 30 days
after determination of eligibility; and,
5. Determine educational placement based on the child's unique needs as
specified in the IEP.
(b) No local school system shall provide special education or related services to a
child eligible for special education until an IEP has been developed and a
placement has been made. A child eligible for special education may be
temporarily placed in a special education program when additional
information is needed to help determine the appropriate placement. Such a
placement must be made in accordance with the following:
1. The interim placement shall not exceed a thirty (30) day period;
2. The IEP team recommends this interim placement; and,
3. Written parental consent for the interim placement is obtained by the
local school system.
(3) Review and revision of the IEP.
(a) Upon the written request of any member, the IEP team shall be convened within
ten (10) school days to review or revise the IEP or consider the child's
placement.
(b) The IEP team must meet at least annually to:
1. Review the child's IEP to determine whether the annual goals for the
child are being achieved; and
2. Revise the IEP as appropriate to address:
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(i) Any lack of expected progress toward the annual goals and in
the general curriculum, if appropriate;
(ii) The results of any reevaluation, observations, and progress
reports;
(iii) Information about the child provided to, or by, the parents;
(iv) The child's anticipated needs; and
(v) Any other matters.
(c) This IEP team shall meet all requirements in IEP team composition and
development.
(d) The parent shall be given a copy of the IEP at no cost.
(e) Parents may be asked to sign the child's IEP on a voluntary basis. Parents
shall not be required by a local school system to sign or otherwise consent to
the IEP as a condition of any services to the child.
(f) If the parent objects to any part of the IEP, they may initiate a mediation or
due process hearing to challenge one or more provisions of the IEP.
(4) Implementation of the IEP.
(a) The IEP must be implemented as soon as possible after completion. In the
event agreement was not reached, no change in the child's IEP or eligibility
status will be made for fourteen (14) days, in order to afford the parent or
guardian time to request a hearing.
(b) At the beginning of each school year, each local school system shall have an
IEP in effect for each child eligible for special education within its
jurisdiction. Each local school system shall ensure that:
1. An IEP is in effect before special education and related services are
provided to a child eligible for special education;
2. The IEP is implemented as soon as possible following the IEP team
meeting.
(c) The child's IEP is accessible to each general and special education teacher and
to each related or other service provider who is responsible for its
implementation.
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(d) Each teacher and provider shall be informed of their specific responsibilities
relating to implementing the child's IEP and the specific accommodations,
modifications and supports that must be provided for the child.
(e) In the case of a child eligible for special education aged 3 through 5, an IFSP
may serve as the IEP if it is consistent with these regulations and agreed to by
the parents and local school system.
0520-1-9-.11 Content of the IEP
(1) The IEP for each child eligible for special education must include:
(a) A statement of the child's present levels of educational performance to
include:
1. The child's strengths and abilities;
2. How the child's disability affects the child's involvement and progress
in the general curriculum; or
3. For preschool children, as appropriate, how the disability affects the
child's participation in appropriate activities.
(b) Statements presented in terms of measurable objectives to the extent possible
and whatever test results are used to reflect the impact of the student's
physical and/or mental characteristics on the student's performance.
(c) A direct relationship between the present levels of educational performance
and other components of the IEP.
(d) A statement of measurable annual goals, including benchmarks or short-term
objectives, related to:
1. Meeting the child's needs that result from the child's disability to
enable the child to be involved in and progress in the general
curriculum (the same curriculum as for children without disabilities),
or for preschool children to participate in appropriate activities; and
2. Meeting each of the child's other educational needs that result from the
child's disability.
(e) Strategies that are effective in realizing the child's goals and either
measurable, intermediate steps (short-term objectives) or major milestones
(benchmarks) that will enable parents, students, and educators to monitor
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progress during the year, and, if appropriate, to revise the IEP consistent with
the student's instructional needs.
(f) Short-term objectives or benchmarks for each annual goal. Short-term
instructional objectives generally break the skills described in the annual goal
down into discrete components. As an alternative, IEP teams may develop
benchmarks, which can be thought of as describing the amount of progress the
child is expected to make within specified segments of the year. Generally,
benchmarks establish expected performance levels that allow for regular
checks of progress that coincide with the reporting periods for informing
parents of their child's progress toward achieving the annual goals. An IEP
team may use either short-term objectives or benchmarks or a combination of
the two depending on the nature of the annual goals and the needs of the child.
(g) A statement of the special education and related services and supplementary
aids and services to be provided to the child, or on behalf of the child, and a
statement of the program modifications or supports for school personnel that
will be provided for the child:
1. To advance appropriately toward attaining the annual goals;
2. To be involved and progress in the general curriculum and to
participate in extracurricular and other nonacademic activities; and,
3. To be educated and participate with other children with disabilities and
children without disabilities in the activities described in this section.
(h) An explanation of the extent, if any, to which the child will not participate
with children without disabilities in the general program.
(i) A statement of any individual modifications in the administration of State or
district-wide assessments of student achievement that are needed in order for
the child to participate in the assessment; and if the IEP team determines that
the child will not participate in a particular State or district-wide assessment of
student achievement (or part of an assessment), a statement of:
1. Why that assessment is not appropriate for the child; and
2. How the child will be assessed.
(j) The projected date for the beginning of each special education and related
service, supplemental aides and services, program modifications or supports
for school personnel, and the anticipated frequency (range of time per session
and number of sessions per week), location, and duration (number of days,
weeks, and months of those services and modifications (including extended
school year services); position and title (special education teacher, general
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education teacher, occupational therapist) or description of personnel to
provide each service specified in the IEP.
(k) A statement of how the child's progress toward the annual goals will be
measured; and how (at least as often as parents are informed of the progress of
children without disabilities) the child's parents will be regularly informed of
the following:
1. Their child's progress toward the annual goals; and
2. The extent to which that progress is sufficient to enable the child to
achieve the goals by the end of the year.
(l) Transition services.
1. The IEP must include:
(i) For each student with a disability beginning at age 14 (or
younger, if determined appropriate by the IEP team), and
updated annually, a statement of the transition service needs of
the student under the applicable components of the student's
IEP that focuses on the student's courses of study (such as
participation in advanced- placement courses or a vocational
education program); and
(ii) For each student beginning at age 16 (or younger, if
determined appropriate by the IEP team), a statement of needed
transition services for the student, including, if appropriate, a
statement of the interagency responsibilities or any needed
linkages.
2. Transition services are a coordinated set of activities for a student
eligible for special education that:
(i) Are designed within an outcome-oriented process, that
promotes movement from school to post-school activities,
including post secondary education, vocational training,
integrated employment (including supported employment),
continuing and adult education, adult services, independent
living, or community participation;
(ii) Are based on the individual student's needs, taking into account
the student's preferences and interests, and includes:
(I) Instruction;
(II) Related services;
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(III) Community experiences;
(IV) The development of employment and other post-school
adult living objectives; and,
(V) The acquisition of daily living skills and functional
vocational assessment, if appropriate.
(iii) Transition services for students eligible for special education
may be special education, if provided as specially designed
instruction, or related services, if required to assist a student
eligible for special education to benefit from special education.
(m) Transfer of rights.
1. Beginning at least one year before a student reaches the age of
eighteen (18), the student's IEP must include a statement that the
student and his or her parents have been informed of the student's
rights under Part B of the IDEA, if any, that will transfer to the student
on reaching the age of eighteen (18).
2. When a student with a disability reaches the age of eighteen (18)
(except for a student with a disability who has been determined to be
incompetent under State law)--
(i) The local school district shall notify the individual and the
parents of the transfer of rights; and
(ii) All rights accorded to parents under Part B of the IDEA and 34
CFR Part 9 (FERPA) transfer to the student; and
(iii) All rights accorded to parents under Part B of the IDEA
transfer to students who are incarcerated in an adult or juvenile
institutions.
(n) Agency responsibilities for transition services.
1. If a participating agency, other than the local school system fails to
provide the transition services described in the IEP, the local school
system shall reconvene the IEP team to identify alternative strategies
to meet the transition objectives for the student set out in the IEP.
2. Nothing in this part relieves any participating agency, including a state
vocational rehabilitation agency, of the responsibility to provide or pay
for any transition service that the agency would otherwise provide to
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students eligible for special education who meet the eligibility criteria
of that agency.
(o) IEP accountability.
1. Each local school system will provide special education and related
services to an eligible child in accordance with the child's IEP and will
make good faith effort to assist the child to achieve the goals and
objectives or benchmarks listed in the IEP.
2. The state or local school system is not prohibited from establishing its
own accountability system regarding teacher, school, or agency
performance.
0520-1-9-.12 Least Restrictive Environment and Placement
(1) General LRE requirements.
(a) Each local school system shall develop procedures for the provision of special
education and related services for children eligible for special education in the
least restrictive environment.
(b) To the maximum extent appropriate, children eligible for special education,
including children in public or private institutions or other care facilities, shall
be educated with peers who are nondisabled.
(c) Special classes, separate schooling, or other removal of children eligible for
special education from general education or preschool environment shall
occur only if the nature or severity of the disability is such that education in
general classes with the use of supplementary aids and services cannot be
achieved satisfactorily.
(2) Continuum of alternative placements.
(a) Each local school system must make available a continuum of alternative
placements to meet the needs of eligible children for special education and
related services. This includes:
1. Instruction in general classes, special classes, special schools, home
instruction, and instruction in hospitals and institutions; and
2. Provisions for supplementary services (such as resource room or
itinerant instruction) to be provided in conjunction with the general
class placement.
(3) Placement.
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(a) In determining the educational placement of a child eligible for special
education, including a preschool child, the following requirements must be
met:
1. The placement decision must be:
(i) Made by an IEP team, including the parents, and other persons
knowledgeable about the child, the meaning of the evaluation
data, and the placement options; and,
(ii) Made in conformity with least restrictive environment
provisions.
2. The child's placement must:
(i) Be determined at least annually;
(ii) Be based on the child's IEP;
(iii) Be as close as possible to the child's home; and
(iv) Not be based on the child's disability.
3. Unless the IEP of a child eligible for special education requires some
other arrangement, the child is educated in the school that he or she
would attend if he or she did not have a disability.
4. In selecting the LRE, consideration is given to any potential harmful
effect on the child or on the quality of services needed.
5. A child eligible for special education is not removed from education in
age-appropriate general classrooms or preschool settings solely
because of needed modifications in the general curriculum.
6. A child shall be educated with age appropriate peers, unless the IEP
team determines on an individual basis that a different educational
placement is necessary.
(b) Children eligible for special education shall have an equal opportunity to
participate with children who do not have disabilities in nonacademic and
extracurricular services and activities that may include counseling services,
athletics, transportation, health services, lunch, recess periods, recreational
activities, special interest groups or clubs sponsored by the local school
system, referrals to agencies that provide assistance to and employment of
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students, including both employment by the agency and assistance in making
outside employment available.
0520-1-9.13 Transition From Special Education Services
(1) A child shall no longer be eligible to receive special education and related services from
a local school system when the IEP team determines one of the following:
(a) The child no longer meets the Tennessee criteria or no longer requires special
education and related services;
(b) The child has been awarded a regular diploma; or,
(c) The child's age is 22 years, except that any child eligible for special education
who turns twenty-two (22) between the commencement and the conclusion of
the school year will continue to be a child eligible for special education for the
remainder of the school year.
0520-1-9.14 Procedural Safeguards
Each local school system shall maintain and implement procedural safeguards to include
information on surrogate parents, opportunity to examine records, independent educational
evaluation, prior notice and procedural safeguard notice, parental consent, mediation, due
process hearing, discipline procedures, transfer of parental rights at age of majority,
protections for children not yet eligible for special education, and referral to and action by
law enforcement or judicial authorities.
(1) Surrogate parent.
(a) Each local school system shall have written policies and procedures for the
recruitment, training and appointment of surrogate parents.
(b) Each local school system shall appoint a surrogate parent to represent the child
in all matters relating to the identification, assessment, educational placement,
and the provision of a free appropriate public education, including meetings
concerning the individualized education program, and any mediation and due
process hearings pertaining to the child when it determines that:
1. No parent can be identified;
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2. It is unable to locate a natural parent or legal guardian by calls, visits
and by sending a letter by certified mail (return receipt requested) to
the last known address of the natural parent or the guardian and
allowing thirty (30) days for a response of the intention to appoint a
surrogate parent;
3. If the child is a ward of the State (including a ward of the court or a
State Agency); or
4. The educational rights of the parents have been terminated or
transferred.
(c) A surrogate parent, when representing the child's educational interests, has the
same rights as those accorded to parents of children eligible for special
education and children suspected of being eligible for special education.
(d) If the health or safety of the child or other persons would be endangered by
delaying the change in placement, due to the unavailability of a surrogate the
change may be made sooner, but without prejudice to any rights that the child
and parent may have.
(e) The surrogate parent shall continue to represent the child until one of the
following occurs:
1. The child is determined by the IEP team to no longer be eligible for, or
in need of special education or related services, except when
termination from such programs is being contested;
2. The parent, who was previously unknown, or whose whereabouts were
previously unknown, becomes known;
3. The legal guardianship of the child is transferred to a person who is
able to fulfill the role of the parent;
4. The local school system determines that the appointed surrogate parent
no longer adequately represents the child;
5. The child reaches age of majority (eighteen) and is able to represent
his or her right to a free and appropriate public education.
(f) Criteria for selection of surrogate parents.
1. A person selected as a surrogate parent may not be an employee of the
state education agency, the local education agency, or any other
agency that is involved in the education or care of the child.
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(i) A person is not considered to be an employee of the local
school system solely because he or she is paid by the local
school system to serve as a surrogate parent.
(ii) A person is not considered to be an employee of the state solely
because he or she is paid by the state to serve as a foster parent.
2. A public agency may select as a surrogate parent a person who is an
employee of a non-public agency that provides non-educational care
for the child may represent the child for educational purposes,
provided that they perform the responsibilities of a surrogate parent as
entered in 0520-1-9-.14(1)(g).
3. Foster parents, selected by an agency of the State, as the custodian for
a child, who have had a foster child eligible for special education for
less than one calendar year, may be appointed by a local school system
to serve as surrogate parents for their foster child or children and may
represent the child for educational purposes, provided that they
perform the responsibilities of a surrogate parent as entered in 0520-1-
9-.14(1)(g). (Foster parents, selected by an agency of the State, as the
custodian for a child, who have had a foster child eligible for special
education for one calendar year or more may act as a parent for their
foster child if they meet the definition of parent in this rule.)
(g) Responsibility of a surrogate parent.
1. A surrogate parent must have no interest that would conflict with the
interests of the child to be represented;
2. A surrogate parent must have knowledge and skills that ensure
adequate representation of the child, including a functional
understanding of the educational rights of children eligible for special
education;
3. A surrogate parent must participate in whatever training program
might be offered to ensure that they will have knowledge and skills to
provide adequate representation of the child;
4. A surrogate parent must represent the child throughout the special
education decision making process of identification, evaluation,
program development, initial placement, review of placement, and
reevaluation, as appropriate;
5. A surrogate parent must be acquainted with the child and his or her
educational needs;
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6. A surrogate parent must attempt to ascertain the child's educational
needs and concerns;
7. A surrogate parent must respect the confidentiality of all records and
information;
8. A surrogate parent must become familiar with the assistance provided
by other human service agencies in the community that affects the
child or that might be helpful resources; and
9. A surrogate parent must monitor the child's educational program and
placement.
(2) Prior Notice.
(a) Written notice must be given to parents of a child suspected of having a
disability or a child eligible for special education as appropriate; at least ten
(10) school days unless both parties agree otherwise or in the case of an
incident of misconduct the notification time may be reduced, before the local
school system:
1. Proposes to initiate or change the identification, evaluation, or
educational placement of the child or the provision of free appropriate
public education to the child;
2. Refuses to initiate or change the identification, evaluation, or
educational placement of the child or the provision of a free
appropriate public education to the child; or
3. Refuses to amend the child's records or proposes to destroy unneeded
records in accordance with the confidentiality requirements of this
rule.
(b) Content of notice must include:
1. A description of the action proposed or refused;
2. An explanation of why the local school system proposes or refuses to
take the action;
3. A description of any other options considered and the reasons why
those options were rejected;
4. A description of each evaluation procedure, test, record, or report used
as a basis for the action;
5. A description of any other factors relevant to the local school system's
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proposed or refused action;
6. A statement that the parents of a child with a disability have
protections under the procedural safeguards; and
7. Sources for parents to contact to obtain assistance in understanding
this notice.
(c) This required notice must be written in language understandable to the general
public and provided in the native language or other mode of communication
used by the parent unless it is clearly not feasible to do so. If this is the case,
the local school system shall take steps to ensure that:
1. The notice is translated orally or by other means in their native
language or other mode of communication;
2. The parent understands the content of the notice; and,
3. There is written evidence that these requirements have been met.
(3) Invitation to a Meeting.
(a) The local school system shall take steps to ensure that one or both of the
parents of a child eligible for special education are present at each meeting of
the IEP team or are provided the opportunity to participate, including:
1. Notifying parents at least ten (10) school days before the IEP meeting
to ensure that they will have an opportunity to attend. When notifying
parents of an IEP meeting related to an incident of misconduct the
notification time may be reduced to as few as 24 hours.
2. Scheduling the meeting at a mutually agreed upon time and place; and
3. Stating in the written notice provided to parents:
(i) The purpose, time and location of the meeting;
(ii) The persons who are expected to be in attendance; and,
(iii) That the parents may bring other persons to the meeting if they
choose to do so.
4. If the purpose of the meeting is the consideration of transition services
for a student, the notice must also:
(i) Indicate this purpose;
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(ii) Indicate that the agency will invite the student; and
(iii) Identify any other agency that will be invited to send a
representative.
(b) Parent participation in meetings.
1. If neither parent can attend an IEP team meeting, the local school
system shall use other methods to ensure parent participation,
including individual or conference telephone calls.
(c) An IEP team meeting may be conducted without the parent in attendance
provided that another method for parent participation is attempted and the
local school system has documented their attempts to arrange a meeting at a
mutually agreed upon time and place such as:
1. Copies of correspondence sent to the parents and any response
received.
2. Detailed records of visits made to the parent's home or place of
employment and the results of those visits.
(d) The local school system shall take whatever action is necessary to ensure that
the parent understands the proceedings at an IEP team meeting, including the
arrangements for an interpreter for parents who are deaf or whose native
language is other than English.
(e) Meetings do not include informal or unscheduled conversations involving
school personnel and conversations on issues such as teaching methodology,
lesson plans, or coordination of service provision if those issues are not
addressed in the child's IEP. Also, a meeting does not include preparatory
activities that school personnel engages in to develop a proposal or response
to a parent proposal that will be discussed at a later meeting.
(4) Procedural safeguards notice.
(a) A copy of the procedural safeguards available must be given to the parents, at
a minimum:
1. Upon initial referral for evaluation;
2. Upon each notification of an IEP meeting;
3. Upon reevaluation of the child; and,
4. Upon receipt of a request for a due process hearing.
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(b) The content of the notice must include a full explanation of all of the
procedural safeguards available to include:
1. Placement of children by parents in private schools when FAPE is at
issue;
2. Access to educational records;
3. Independent educational evaluation;
4. Prior written notice;
5. Parental consent;
6. Opportunity to present complaints and to initiate mediation and/or a
due process hearing;
7. The child's placement during pendency of due process proceedings;
8. Procedures for students who are subject to placement in an interim
alternative educational settings;
9. Procedures for mediation;
10. Procedures for due process hearing including requirements of
disclosure of evaluation results and recommendations;
11. Civil actions;
12. Attorneys' fees; and,
13. The complaint procedures with a description of how to file and the
timelines.
(5) Parental consent.
(a) Informed parental consent must be obtained by each local school system prior
to:
1. Conducting an initial evaluation or reevaluation;
2. Initial placement of a child eligible for special education in a special
education program; and,
3. Disclosing personally identifiable information to unauthorized
persons, except for directory information where reasonable notice of
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disclosure is provided and the parent has not objected.
(b) Consent for initial evaluation may not be construed as consent for initial
placement.
(c) Parental consent is not required before:
1. Reviewing existing data as part of an evaluation or a reevaluation; or,
2. Administering a test or other assessment that is administered to all
children unless consent is required of parents of all children.
(d) Parents may refuse consent for evaluation or reevaluation but the local school
system may continue to pursue those evaluations by using due process
procedures.
(e) Informed parental consent need not be obtained for reevaluation if the local
school system documents that it has taken reasonable measures to obtain
consent and the parent has failed to respond.
(6) Independent education evaluation (IEE).
(a) Each local school system shall develop procedures for providing an
independent educational evaluation (IEE) at the request of parents. This
procedure shall be approved by the Department of Education.
(b) The parents have the right to an independent educational evaluation (IEE) at
public expense if they disagree with the evaluation provided by the local
school system. The IEE must be provided at public expense and without
unnecessary delay unless the local school system:
1. Initiates a hearing to show its evaluation is appropriate; or
2. Demonstrates in a due process hearing that the evaluation presented by
the parents did not meet the local school system's evaluation criteria. If
this is submitted, the parents still have the right to an IEE, but not at
public expense.
(c) Upon request for an IEE, the local school system shall provide the parents
information about where an IEE may be obtained and the evaluation criteria to
be used.
(d) If a hearing officer requests an independent educational assessment as a part
of a due process hearing, it shall be at public expense.
(e) Whenever an IEE is obtained, the criteria under which the assessment is
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obtained, including the location of the assessment and the qualifications of the
examiner(s), must be the same as the criteria, which the local school system
uses when it initiates an assessment.
(f) The results of any IEE must be considered by the local school system in any
decision if the IEE meets local school system criteria made with respect to the
provision of a free appropriate public education to the child and may be
presented as evidence at a due process hearing regarding the child.
(7) Confidentiality of information.
(a) Each school district must permit parents to inspect and review any records
directly relating to their children, which are maintained by the school district
or by a party acting for the school district.
(b) Local school systems shall comply with a parental request to inspect and
review all education records relating to the identification, evaluation, and
placement of their child and the provision of FAPE. This request shall be
completed, without unnecessary delay and before any IEP meeting or hearing,
in no case more than forty-five (45) days after the request has been made.
(c) Parental rights to inspect and review records includes:
1. The right to a response from the local school system to reasonable
requests for explanations and interpretations of the records;
2. The right to request the local school system to provide copies of the
records containing the information, if failure to provide those copies
would effectively prevent the parents from exercising the right to
inspect and review the records; and,
3. The right to have a representative of the parent (authorized in writing)
inspect and review the records.
(d) The local school system may presume that the parent has authority to inspect
and review records relating to his or her child unless the agency has been
advised that the parent does not have the authority under applicable Tennessee
law governing such matters as guardianship, separation and divorce and has
been provided a copy of the applicable document.
1. The local school system must keep a record of parties obtaining access
to education records (except access by parents and authorized
employees of the board), including the name of the party, the date
access took place, and the purpose of the authorized use.
2. If any education record includes information on more than one child,
the parent of a child eligible for special education or a child suspected
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of being eligible for special education shall have the right to inspect
and review only the information relating to the child or to be informed
of that specific information.
(e) The local school system shall provide parents, on request, a list of the types
and locations of education records collected, maintained, or used by the local
school system.
(f) The local school system may charge a fee for copies of records which are
made for parents under this rule if the fee does not effectively prevent the
parents from exercising their right to inspect and review those records but in
no event shall a local school system charge more than the actual cost of the
copies. Nor shall a local school system charge a fee to search for or to
retrieve information under this rule.
(g) A parent who believes that information in the education records collected,
maintained or used is inaccurate or misleading or violates the privacy or other
rights of the child may request the local school system to amend the
information.
1. The local school system, upon receiving a request from a parent shall
decide, within a ten (10) days of its receipt of the request, whether to
amend the information as requested. If the system decides to refuse to
amend the information, it shall inform the parent of the refusal and
advise the parent of the right to a hearing.
(i) The local school system shall, on request, provide an
opportunity for a 34 CFR Part 99 (FERPA) hearing to
challenge information in education records to insure that it is
not inaccurate, misleading, or otherwise in violation of the
privacy or other rights of the child.
(ii) If, as a result of the 34 CFR Part 99 (FERPA) hearing, it is
decided that the information is inaccurate, misleading or
otherwise in violation of the privacy or other rights of the child,
it shall amend the information accordingly and provide written
notice to the parents.
(iii) If, as a result of the hearing, it is decided that the information is
not inaccurate, misleading or otherwise in violation of the
privacy or other rights of the child, it shall inform the parents
of the right to place in the records it maintains on the child a
statement commenting on the information or setting forth any
reasons for disagreeing with the decision of the local school
system.
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(iv) Any explanation placed in the records of the child must (1) be
maintained by the agency as part of the records of the child as
long as the record or contested portion is maintained by this
agency and (2) if the records of the child or the contested
portion is disclosed by the agency to any party, the explanation
must also be disclosed to the party.
(h) Written parental consent shall be obtained before personally identifiable
information is used for any purpose other than meeting a requirement under
this rule or, except for directory information where reasonable notice of
disclosure is provided and the parent has not objected, is disclosed to anyone
other than officials of participating agencies collecting or using information
for the purposes of the activities described in this rule.
1. Local school systems shall not release information from education
records to participating agencies without parental consent unless
authorized to do so under 34 CFR Part 99.22(FERPA).
2. Local school systems shall protect the confidentiality of personally
identifiable information at collection, storage, disclosure, and
destruction stages and shall designate one person to assume
responsibility for ensuring the confidentiality of any personally
identifiable information.
3. Any person collecting or using personally identifiable information
shall receive training or instruction regarding these rules. Local school
systems must maintain, for public inspection, a current listing of the
names and positions of employees who may have access to personally
identifiable information.
(i) Local school systems shall inform parents when personally identifiable
information collected, maintained, or used is no longer needed to provide
educational services to the child and shall have such information destroyed at
the request of the parents.
(j) Information contained in the IEP or individual assessment shall not be
available to the public but must be available to the professional educational
staff and related service providers in need of such information in connection
with the responsibilities established by this rule consistent with the
requirements of existing Federal and State laws governing such information.
(k) These Rules and Regulations extend to any records or other information
collected or maintained by any agency, organization or person in connection
with an individual evaluation.
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(l) A parent's rights brochure will be given to parents at the time of referral for a
comprehensive evaluation. The brochure will also be given to parents at the
initial IEP team meeting and at all subsequent meetings.
(8) Complaint procedures.
(a) An Administrative Complaint:
1. Must be in writing;
2. Should be addressed to the Division of Special Education;
3. Must be signed by the person making the complaint (anonymous
complaints will not be processed);
4. Should be clear and concise in identifying the concern or the alleged
violations; and
5. Need not identify the specific law or regulation involved.
(b) The primary responsibility for the investigation and resolution of complaints
are with the Division. A staff member will be assigned to conduct an
impartial review of the facts and to recommend an objective resolution of the
complaint based on its written procedures.
(c) Any complaint must be investigated and resolved within sixty (60) calendar
days from receipt of the written complaint. The sixty (60) day timeline may
be extended by the Department or the Division of Special Education (DSE),
for exceptional circumstances such as:
1. The complexity of the issues;
2. The need for additional information;
3. The unavailability of any of the necessary parties;
4. The request and agreement of both parties for reasons such as illness,
administrative need, or early complaint resolution or
5. Additional complaint issues submitted by the same person making the
complaint if the issues are different.
(d) The complainant and the district administrator will be notified in writing of an
extension in the timeline and the reasons for it.
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(e) The complainant must allege noncompliance of a State or Federal law or
regulation governing educational services to children eligible for special
education, provide specific information which supports the allegation, and
must sign the complaint.
(f) Individuals or organizations filing verbal complaints are sent a complaint form
for completion and signature.
(g) If the Division determines that the conditions are not met, a letter to the
complainant with a copy to the local school system will be sent explaining
that the concerns are not sufficient to merit an investigation.
(h) If the conditions are met, the Division must immediately contact the local
school system to seek an early resolution of the issues unless the person
making the complaint has filed for a due process hearing on the same issue(s).
The investigation will then be tolled until a decision in the due process
hearing has been made.
(i) To initiate an early resolution, the local school system, within ten (10)
calendar days of receipt of the written complaint, should provide a record of
contact with the parent, a statement of the proposed resolution and whether
the parent has agreed to the resolution.
(j) If the local school system states that the complaint has been resolved, the
Division may contact the parents to verify the resolution and write a letter of
findings to both parties.
(k) If the complaint is not resolved within ten (10) calendar days or the
complainant does not agree that resolution has occurred, the complaint must
be investigated.
(l) To investigate the complaint the Division may use any or all of the following
procedures to resolve the complaint:
1. Request copies of existing documents;
2. Request written answers to written questions;
3. Telephone or personal interviews with officials, employees, students,
parents or other relevant persons.
4. Request a corrective action plan; and
5. Other procedures as deemed appropriate.
(m) The Division must provide an opportunity to the complainant to:
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1. Submit any additional information regarding the allegations;
2. Provide written or oral comments on the information provided by the
local school system and the parent.
(n) After completion of the investigation, a decision will be rendered and written
to address each allegation in the complaint. This document will contain the
facts of the investigation and the reasons for the final decision. Both parties
will receive copies of this issuance of findings.
(o) Remedies for denial of appropriate services.
1. In resolving a complaint in which it has found a failure to provide
appropriate services, the Department shall address:
(i) How to remediate the denial of those services, including, as
appropriate, the awarding of monetary reimbursement or other
corrective action appropriate to the needs of the child; and
(ii) Appropriate future provision of services for all children with
disabilities.
(9) Mediation.
(a) Parents and LEAs may participate in special education mediation to resolve
disputes involving identification, evaluation, or educational placement of the
child or the provision of FAPE to the child.
(b) Requirements.
1. The mediation process.
(i) Is voluntary on the part of the parties;
(ii) Is not used to deny or delay a parent's right to a due process
hearing, or to deny any other rights afforded under Part B of
the IDEA; and
(iii) Is conducted by a qualified and impartial mediator who is
trained in effective mediation techniques.
2. Selection of Mediators.
(i) The Department shall maintain a list of individuals who are
qualified mediators and knowledgeable in laws and regulations
relating to the provision of special education and related
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services.
(ii) If a mediator is not selected on a random (e.g., a rotation) basis
from the Department's list of mediators, both parties must be
involved in selecting the mediator and agree with the selection
of the individual who will mediate.
(iii) Once a mediator is selected, either party may reject a specific
mediator.
3. The Department shall bear the cost of the mediator. The LEA shall be
responsible for providing appropriate meeting space. The Department
of Education shall bear the administrative cost for the mediation.
4. Each session in the mediation process must be scheduled in a timely
manner and must be held in a location that is convenient to the parties
to the dispute.
5. An agreement reached by the parties to the dispute in the mediation
process must be set forth in a written mediation agreement.
6. Discussions that occur during the mediation process must be
confidential and may not be used as evidence in any subsequent due
process hearings or civil proceedings, and the parties to the mediation
process may be required to sign a confidentiality pledge prior to the
commencement of the process. A mediator may not be subpoenaed as
a witness in a due process hearing for a child for whom he or she was
the mediator.
7. When the parents and LEA agree to mediate a dispute, a "Request for
Mediation" form shall be completed and signed by both parties and
forwarded to the Division of Special Education.
(c) Impartiality of mediator.
1. An individual who serves as a mediator must not be an employee of:
(i) Any LEA or any State agency involved in the provision of
special education or related services to the child whose
program is in dispute; or
(ii) The Division that is providing direct services to a child who is
the subject of the mediation process; and
2. A person who otherwise qualifies as a mediator is not an employee of
a local school system or the Division solely because he or she is paid
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by the agency to serve as a mediator.
3. Must not have a personal or professional conflict of interest.
(d) Mediator training.
1. All mediators shall be trained as Tennessee Supreme Court Rule 31
Family Case mediators.
2. Additional training in State and Federal special education laws and
regulations shall be provided annually or on an as needed basis.
(e) Meeting to encourage mediation.
1. The Department may establish procedures to require parents or LEAs
who elect not to use the mediation process to meet, at a time and
location convenient to the parents or LEAs, with a disinterested party
who:
(i) Is under contract with a parent training and information center
or community parent resource center in the State or an
appropriate alternative dispute resolution entity; and
(ii) Would explain the benefits of the mediation process, and
encourage the parents and LEAs to use the process.
2. A parent's or LEA's right to a due process hearing may not denied or
delayed because either party fails to participate in this meeting.
(10) Due Process Hearing.
(a) Impartial Due Process Hearing.
1. Parents and LEAs have the right to an impartial due process hearing in
order to settle disputes regarding the provision of a free appropriate
public education to a child eligible for special education or a child
suspected to be eligible for special education.
2. A parent or the LEA may initiate a hearing on matters relating to the
identification, evaluation or educational placement of a child with a
disability, or the provision of FAPE to the child. Hearing matters
include when a child is or is about to be:
(i) Denied identification, evaluation, entry or continuance in a
program of special education appropriate to his or her
condition and needs;
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(ii) Provided special education or related services which are
inappropriate to his or her condition and needs;
(iii) Denied needed special education or related services;
(iv) Provided with special education or other education which is
insufficient in quantity to satisfy the requirements of the law;
(v) Provided with special education or other education to which he
or she is entitled only by units of government or in situations
which are not those having the primary responsibility for
providing the services in question;
(vi) Assigned to a program of special education when he or she is
not eligible for special education;
(vii) Denied his or her rights by having data collected, maintained or
used which the parent believes to be inaccurate, misleading or
otherwise in violation of the privacy rights of the child;
(viii) Denied an evaluation requested by a parent;
(ix) Improperly identified; or
(x) Placed in a setting, which is not the least restrictive
environment.
3. When a hearing is initiated the LEA shall inform the parents of the
availability of mediation.
4. The LEA shall inform the parent of any free or low-cost legal and
other relevant services available in the area and document the
information given if--
(i) The parent requests the information; or
(ii) The parent or the LEA initiates a due process hearing
5. A due process hearing shall be conducted by the Division.
6. The parent of a child with a disability or the attorney representing the
child shall provide notice (which must remain confidential) to the LEA
in a request for a hearing. The notice required must be in writing and
include:
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(i) The name of the child;
(ii) The address of the residence of the child;
(iii) The name of the school the child is attending;
(iv) A description of the nature of the problem of the child relating
to the proposed or refused initiation or change, including facts
relating to the problem; and
(v) A proposed resolution of the problem to the extent known and
available to the parents at the time.
(b) Right to due process hearing.
1. A LEA may not deny or delay a parent's right to a due process hearing
for failure to provide the notice required.
(c) Impartial hearing officer.
1. A hearing may not be conducted:
(i) By a person who is an employee of the State agency or the
LEA that is involved in the education or care of the child; or
(ii) By any person having a personal or professional interest that
would conflict with his or her objectivity in the hearing.
2. A person who otherwise qualifies to conduct a hearing is not an
employee of the Division solely because he or she is paid by the
Department to serve as a hearing officer.
3. The Department shall keep a list of the persons who serve as hearing
officers. The list must include a statement of the qualifications of each
of those persons.
4. All hearing officers shall be trained in the following areas:
(i) State and Federal special education laws and regulations;
(ii) The Uniform Administrative Procedures Act;
(iii) Clear writing and proper grammatical form;
(iv) Conducting hearings in an orderly and controlled manner;
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(v) Rendering decisions in an impartial manner, extracting
pertinent data from a variety of sources, and arriving at an
appropriate decision;
(vi) The nature of physical and mental impairments and special
education programming;
(vii) Diagnostic instruments and procedures; and,
(viii) A professional demeanor and objectivity.
(d) Hearing rights.
1. Any party to a due process hearing has the right to:
(i) Be accompanied and advised by counsel and by individuals
with special knowledge or training with respect to the problems
of children with disabilities;
(ii) Present evidence and confront, cross-examine, and compel the
attendance of witnesses;
(I) Requests for the attendance of witnesses shall be made
to the director of the LEA or his designated
representative who shall inform the hearing officer of
the request.
(II) Subpoenas to compel the attendance of witnesses and
the production of documentary evidence shall be issued
by the hearing officer.
(III) LEAs shall ensure the availability of all LEA
employees called as witnesses.
(iii) Prohibit the introduction of any evidence at the hearing that has
not been disclosed to that party at least 5 business days before
the hearing;
(iv) Obtain a written, or, at the option of the parents, electronic,
verbatim record of the hearing; and
(v) Obtain written, or, at the option of the parents, electronic
findings of fact and decisions.
2. Additional disclosure of information.
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(i) At least five (5) business days prior to a due process hearing
each party shall disclose to all other parties all evaluations
completed by that date and recommendations based on the
offering party's evaluations that the party intends to use at the
due process hearing.
(ii) A hearing officer may bar any party that fails to comply from
introducing the relevant evaluation or recommendation at the
hearing without the consent of the other party.
(iii) Parents involved in hearings must be given the right to:
(I) Have the child who is the subject of the hearing present;
and
(II) Open the hearing to the public.
(iv) The record of the hearing and the findings of fact and decisions
must be provided at no cost to parents.
(v) Findings and the final decision of the hearing officer shall be
made to the Division, the Advisory Council for Students with
Disabilities, and to the public after deleting any personally
identifiable information.
(e) A decision made in a due process hearing is final, except that any party
involved in the hearing has the right to bring a civil action with respect to the
complaint.
(f) Timelines and convenience of hearings and reviews.
1. The Division shall ensure that not later than forty-five (45) days after
the receipt of a request for a hearing:
(i) A final decision is reached in the hearing; and
(ii) A copy of the decision is mailed to the LEA, the parents, and
the Division.
2. A hearing officer may grant specific extensions of time beyond forty-
five (45) days at the request of either party.
3. Each hearing and each review involving oral arguments must be
conducted at a time and place that is reasonably convenient to the
parents and child involved.
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4. Unless a decision is rendered within forty-five (45) days after the
receipt of a request for a hearing, the hearing officer will not be
reimbursed, except in extraordinary circumstances as determined by
the Commissioner. In addition, if no decision has been rendered
within forty-five (45) days after the receipt of a request for a hearing,
the party requesting the hearing shall be given the following options:
(i) A new hearing conducted by a different hearing officer; or
(ii) A different hearing officer to review the existing transcript and
evidence and render a decision on the record.
(g) Civil action.
1. Any party aggrieved by the findings and decision of impartial due
process hearing has the right to bring a civil action with respect to the
complaint presented. The action may be brought in any State court of
competent jurisdiction in accordance with T.C.A. § 4-5-322 and 49-
10-601 or in a district court of the United States without regard to the
amount in controversy.
2. In any action brought under (g) of this section, the court:
(i) Shall receive the records of the administrative proceedings;
(ii) Shall hear additional evidence at the request of a party; and
(iii) Basing its decision on the preponderance of the evidence, the
court shall grant the relief that the court determines to be
appropriate.
3. The district courts of the United States have jurisdiction of actions
brought under section 615 of the IDEA without regard to the amount
in controversy.
4. Rule of construction.
(i) Nothing in this section restricts or limits the rights, procedures,
and remedies available under the Constitution, the Americans
with Disabilities Act of 1990, title V of the Rehabilitation Act
of 1973, or other Federal laws protecting the rights of children
with disabilities, except that before the filing of a civil action
under these laws seeking relief that is also available under
section 615 of the IDEA, the due process procedures must be
exhausted to the same extent as would be required had the
action been brought under section 615 of the IDEA.
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(h) Attorneys' fees.
1. In any action or proceeding brought under section 615 of the Act, the
court, in its discretion, may award reasonable attorneys' fees as part of
the costs to the parents of a child with a disability who is the prevailing
party.
2. Funds under Part B of the IDEA may not be used to pay attorneys' fees
or costs of a party related to an action or proceeding under section 615
of the IDEA.
(i) This does not preclude a LEA from using funds under Part B of
the IDEA for conducting an action or proceeding under section
615 of the IDEA.
3. A court awards reasonable attorney's fees consistent with the
following:
(i) Determination of amount of attorneys' fees.
(I) Fees awarded must be based on rates prevailing in the
community in which the action or proceeding arose for
the kind and quality of services furnished.
(II) No bonus or multiplier may be used in calculating the
fees awarded.
(ii) Prohibition of attorneys' fees and related costs for certain
services.
(I) Attorneys' fees may not be awarded and related costs
may not be reimbursed in any action or proceeding for
services performed subsequent to the time of a written
offer of settlement to a parent if--
I. The offer is made at any time more than ten (10)
days before the proceeding begins;
II. The offer is not accepted within ten (10) days;
and
III. The court or administrative hearing officer finds
that the relief finally obtained by the parents is
not more favorable to the parents than the offer
of settlement.
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(II) Attorneys' fees may not be awarded relating to any
meeting of the IEP team unless the meeting is convened
as a result of an administrative proceeding or judicial
action, or at the discretion of the State, for a mediation
that is conducted prior to the filing of a request for due
process hearing.
(iii) Exception to prohibition on attorneys' fees and related costs.
(I) An award of attorneys' fees and related costs may be
made to a parent who is the prevailing party and who
was substantially justified in rejecting the settlement
offer.
(iv) Reduction of amount of attorneys' fees. The court may reduce
the amount of the attorneys' fees awarded if the court finds
that:
(I) The parent, during the course of the action or
proceeding, unreasonably protracted the final resolution
of the controversy;
(II) The amount of the attorneys' fees otherwise authorized
to be awarded unreasonably exceeds the hourly rate
prevailing in the community for similar services by
attorneys of reasonably comparable skill, reputation,
and experience;
(III) The time spent and legal services furnished were
excessive considering the nature of the action or
proceeding; or
(IV) The attorney representing the parent did not provide to
LEA the appropriate information in the due process
complaint.
(v) Exception to reduction in amount of attorneys' fees.
(I) These provisions do not apply in any action or
proceeding if the court finds that the Department or
LEA unreasonably protracted the final resolution of the
action or proceeding or there was a violation of section
615 of the IDEA.
(i) Child's status during proceedings.
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1. With the exception of forty-five (45) day placements in interim
alternative educational settings for weapons, drugs, or a child with a
disability who has been determined dangerous to himself and/or others
by a hearing officer, during the pendency of any due process hearing,
unless the State or LEA and the parents of the child agree otherwise,
the child involved in the complaint must remain in his or her current
educational placement.
2. If the due process hearing involves an application for initial admission
to public school, the child, with the consent of the parents, must be
placed in the public school until the completion of all the proceedings.
3. If the decision of a hearing officer in a due process hearing conducted
by the Division with the child's parents that a change of placement is
appropriate, that placement must be treated as an agreement between
the State or LEA and the parents for purposes of the child's during
proceedings.
(j) LEA Procedures and Responsibilities.
1. When the parent requests a hearing, the director of schools shall
contact the parent for the purpose of establishing a suitable time
(morning, afternoon, or evening), two possible dates for the hearing to
be held; and whether the hearing will be closed or open.
2. When hearing parameters are complete the LEA shall immediately
contact the Division.
3. A request for a hearing by the LEA will be made in writing to the
Division, giving a brief statement of facts supporting the grounds for
the hearing. The system shall allege one or more of the following:
(i) The parent refuses to consent to:
(I) Initial evaluation and/or re-evaluation; or
(II) Initial placement in a special education program.
(ii) The parent disagrees with the LEA's evaluation and is
requesting an independent educational evaluation at public
expense, over the objection of the LEA.
4. The LEA shall be responsible for providing an appropriate meeting
place, a stenographic record of the hearing and a typed transcript of the
hearing proceedings, and shall bear the administrative costs of the
hearing*, with the exception of the services of the hearing officer.
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*Expenses for the services of a court reporter, the original copy of the
transcript and one copy for the parent will be reimbursed on
submission of appropriate documentation to the Division. Court
reporter fees will not, however, be reimbursed when transcripts are not
released within fifteen (15) days after the date of the hearing, except in
extraordinary circumstances, as determined by the hearing officer.
5. The LEA shall provide a typed transcript of the proceedings to the
following:
(i) The hearing officer (original copy); and,
(ii) The parent.
0520-1-9-.15 Discipline Procedures
(1) Authority of school personnel.
(a) School personnel may order:
1. To the extent removal would be applied to children without
disabilities, the removal of a child eligible for special education from
their current placement for not more than ten (10) consecutive school
days for any violation of school rules, and additional removals of not
more than ten (10) consecutive school days in that same school year
for separate incidents of misconduct (as long as those removals do not
constitute a change of placement);
2. After a child with a disability has been removed from his or her
current placement for more than 10 school days in the same school
year, during any subsequent days of removal, the local school system
must provide services to the extent required to allow the child eligible
for Special Education to progress in the general curriculum and to
make progress toward IEP goals and objectives.
3. A change in placement of a child with a disability to an appropriate
interim alternative educational setting for the same amount of time
that a child without disabilities would be subject to discipline, but for
not more than 45 days, if:
(i) The child possesses a dangerous weapon at school or at a
school function under the jurisdiction of the state or a local
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school system; or
(ii) The child knowingly possesses or uses illegal drugs or sells or
solicits the sale of a controlled substance while at school or a
school function under the jurisdiction of the state or local
school system.
(b) Within ten (10) business days after either first removing the child for more
than 10 school days in a school year or commencing a removal that constitutes
a change of placement:
1. If the local school system did not conduct a functional behavioral
assessment and implement a behavioral intervention plan for the child
before the behavior that resulted in the removal, the local school
system shall convene an IEP meeting to develop an assessment plan;
2. If the child already has a behavioral intervention plan, the IEP team
shall meet to review the plan and its implementation, and, modify the
plan and its implementation as necessary, to address the behavior;
3. As soon as practicable after completing the assessments required by
the plan, the local school system shall convene an IEP meeting to
develop appropriate behavioral interventions to address that behavior
and shall implement those interventions.
(c) If subsequently, a child eligible for special education who has a behavioral
intervention plan and who has been removed from the current educational
placement for more than 10 school days in a school year is subjected to a
removal that does not constitute a change of placement, the IEP team
members shall review the behavioral intervention plan and its implementation
to determine if modifications are necessary. If one or more of the team
members believe that modifications are needed, the team shall meet to modify
the plan and its implementation to the extent the team determines necessary.
(d) For purposes of this section, the following definitions apply:
1. Controlled substance is a drug or other substance identified under
schedules I, II, III, IV, or V in section 202(c) of the Controlled
Substances Act (21 U.S.C. 812(c));
2. Illegal drug:
(i) Is a controlled substance; but,
(ii) Does not include a substance that is legally possessed or used
under the supervision of a licensed health-care professional or
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that is legally possessed or used under any other authority
under that IDEA or under any other provision of Federal law.
3. Weapon is a device, instrument, material, or substance, animate or
inanimate, that is used for or readily capable of, causing death or
serious bodily injury, except that such term does not include a pocket
knife with a blade less than 2.5 inches in length (18 U.S.C. § 930
(g)(23)).
(2) Change of placement for disciplinary removals.
(a) For purposes of removals of a child with a disability from the child's current
educational placement a change of placement occurs if:
1. The removal is for more than 10 consecutive school days; or
2. The child is subjected to a series of removals that constitute a pattern
because they cumulate to more than 10 school days in a school year,
and because of factors such as the length of each removal, the total
amount of time the child is removed, and the proximity of the
removals to one another.
(3) FAPE for children suspended or expelled from school.
(a) A local school system need not provide services during periods of removal to
a child eligible for special education who has been removed from their current
placement of 10 school days or less in that school year, if services are not
provided to a child without disabilities who has been similarly removed.
(b) In the case of a child eligible for special education who has been removed
from their current placement for more than 10 school days in that school year,
the local school system, for the remainder of the removals, must:
1. Provide services to the extent necessary to enable the child to
appropriately progress in the general curriculum and advance toward
achieving the goals set out in the child's IEP, if the removal is:
(i) Under the school personnel's authority to remove for not more
than 10 consecutive school days as long as that removal does
not constitute a change of placement;
2. Provide services in the appropriate interim alternative educational
setting, if the removal is for drug or weapons offenses or based on a
hearing officer determination that maintaining the current placement
of the child is substantially likely to result in injury to the child or to
others if he or she remains in the current placement.
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(c) School personnel, in consultation with the child's special education teacher,
shall determine the extent to which services are necessary to enable the child
to appropriately progress in the general curriculum and advance toward
achieving the goals set out in the child's IEP if the child is removed under the
authority of school personnel for not more than 10 consecutive school days as
long as that removal does not constitute a change of placement.
(d) The child's IEP team shall determine the extent to which services are
necessary to enable the child to appropriately progress in the general
curriculum and advance toward achieving the goals set out in the child's IEP if
the child is removed because of behavior that has been determined not to be a
manifestation of the child's disability.
(4) Determination of setting.
(a) The interim alternative educational setting must be determined by the IEP
team.
(b) Any interim alternative educational setting in which a child is placed must:
1. Be selected so as to enable the child to continue to progress in the
general curriculum, although in another setting, and
2. To continue to receive those services and modifications, including
those described in the child's current IEP, that will enable the child to
meet the goals set out in that IEP; and,
3. Include services and modifications to address the behavior and are
designed to prevent the behavior from recurring.
(5) Manifestation determination review.
(a) If an action is contemplated regarding behavior or involving a removal that
constitutes a change of placement for a child eligible for special education
who has engaged in other behavior that violated any rule or code of conduct
of the local school system that applies to all children:
1. Not later than the date on which the decision to take that action is
made, the parents must be notified of that decision and provided the
procedural safeguards notice;
2. Immediately, if possible, but in no case later than 10 school days after
the date on which the decision to take that action is made, a review
must be conducted of the relationship between the child's disability
and the behavior subject to the disciplinary action.
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(b) The review in part (a) of this section must be conducted by the IEP team and
other qualified personnel in a meeting.
(c) In conducting the review, the IEP team and other qualified personnel may
determine that the behavior of the child was not a manifestation of the child's
disability only if the IEP team and other qualified personnel:
1. First consider, in terms of the behavior subject to disciplinary action,
all relevant information, including:
(i) Evaluation and diagnostic assessment results, including the
results or other relevant information supplied by the parents of
the child;
(ii) Observations of the child; and,
(iii) The child's IEP and placement.
2. Then determine that:
(i) In relationship to the behavior subject to disciplinary action in
the child's IEP and placement were appropriate and the special
education services, supplementary aids and services, and
behavior intervention strategies were provided consistent with
the child's IEP and placement;
(ii) The child's disability did not impair the ability of the child to
understand the impact and consequences of the behavior
subject to disciplinary action; and,
(iii) The child's disability did not impair the ability of the child to
control the behavior subject to disciplinary action.
(d) If the IEP team and other qualified personnel determine that any of the
standards in paragraph c(2) of this section were not met, the behavior must be
considered a manifestation of the child's disability.
(e) If, in the review in paragraphs b and c of this section, a local school system
identifies deficiencies in the child's IEP or placement or in their
implementation, it must take immediate steps to remedy those deficiencies.
(6) Determination that behavior was not a manifestation of the disability.
(a) If the result of the review is that the behavior of the child eligible for special
education was not a manifestation of the child's disability, the relevant
disciplinary procedures applicable to children without disabilities may be
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applied to the child in the same manner in which they would be applied to
children without disabilities, except the child must still receive FAPE.
(b) Additional requirement.
1. If the local school system initiates disciplinary procedures applicable
to all children, the local school system shall ensure that the special
education and disciplinary records of the child with a disability are
transmitted for consideration by the person or persons making the final
determination regarding the disciplinary action.
(c) Child's status during due process proceedings.
1. If a parent requests a hearing to challenge a determination, made
through the review, that the behavior of the child was not a
manifestation of the child's disability, the child must remain in his or
her current educational placement unless:
(i) the child is in an interim alternative educational setting 45 day
placement for weapons or drug violations; or
(ii) a hearing officer determines that the local school system has
demonstrated by substantial evidence that maintaining the
current placement of the child is substantially likely to result in
injury to the child or to others.
(7) Parent appeal.
(a) General.
1. If the child's parent disagrees with a determination that the child's
behavior was not a manifestation of the child's disability or with any
decision regarding placement, the parent may request a hearing.
2. The State or local school system shall arrange for an expedited hearing
if a hearing is requested by a parent.
(b) Review of decision.
1. In reviewing a decision with respect to the manifestation
determination, the hearing officer shall determine whether the local
school system has demonstrated that the child's behavior was not a
manifestation of the child's disability consistent with manifestation
review procedures.
2. In reviewing a decision to place the child in an interim alternative
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educational setting, the hearing officer shall apply their authority
standards.
(8) Placement during appeals.
(a) General.
1. If a parent requests a hearing or an appeal regarding a disciplinary
action to challenge the interim alternative educational setting or the
manifestation determination, the child must remain in the interim
alternative educational setting pending the decision of the hearing
officer or until the expiration of the 45 days time period provided for,
whichever occurs first, unless the parent and local school system agree
otherwise.
(b) Current placement.
1. If a child is placed in an interim alternative educational setting and
school personnel propose to change the child's placement after
expiration of the interim alternative placement, during the pendency of
any proceeding to challenge the proposed change in placement the
child must remain in the current placement (the child's placement prior
to the interim alternative educational setting) except as provided under
expedited hearing.
(c) Expedited hearing.
1. If school personnel maintain that it is dangerous for the child to be in
the current placement (placement prior to removal to the interim
alternative education setting) during the pendency of the due process
proceedings, the local school system may request an expedited due
process hearing.
2. In determining whether the child may be placed in the alternative
educational setting or in another appropriate placement ordered by the
hearing officer, the hearing officers shall apply their authority
standards.
3. The placement ordered may not be longer than forty-five (45) days.
4. The expedited hearing procedure may be repeated, as necessary.
(9) Expedited due process hearings.
(a) Expedited due process hearings must be conducted by due process hearing
officers and written decisions mailed to parties within thirty (30) days of the
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local school system's receipt of the parent's request for the hearing.
(b) The decisions on expedited due process hearings are appealable under the
same rules as other due process hearings.
(10) Referral to and action by law enforcement and judicial authorities.
(a) Nothing prohibits a local school system from reporting a crime committed by
a child eligible for special education to appropriate authorities or to prevent
State law enforcement and judicial authorities from exercising their
responsibilities with regard to the application of Federal and State law to
crimes committed by a child eligible for special education.
(b) A local school system reporting a crime committed by an child eligible for
special education shall ensure that copies of the special education and
disciplinary records of the child are transmitted for consideration by the
appropriate authorities to whom it reports the crime.
(c) A local school system reporting a crime may transmit copies of the child's
special education and disciplinary records only to the extent that the
transmission is permitted by the 34 CFR Part 99 (FERPA).
(11) Protections for children not yet eligible for special education and related services.
(a) A child who has not been determined to be eligible for special education and
related services under this part and who has engaged in behavior that violated
any rule or code of conduct of the local school system, including behavior that
may assert any of the protections provided for in this part if the local school
system had knowledge that the child was a child with a disability before the
behavior that precipitated the disciplinary action occurred.
(b) A local school system must be deemed to have knowledge that a child is
eligible for special education if before the behavior that precipitated the
disciplinary action occurred:
1. The parent of the child has expressed concern in writing (or orally if
the parent does not know how to write or has a disability that prevents
a written statement to personnel of the appropriate local school
system) that the child is in need of special education and related
services;
2. The behavior or performance of the child demonstrates the need for
these services;
3. The parent of the child has requested an evaluation of the child; or
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4. The teacher of the child, or other personnel of the local school system,
has expressed concern about the behavior or performance of the child
to the director of special education of the local school system or to
other personnel in accordance with the agency's established child find
or special education referral system.
(c) Exception.
1. A local school system would not be deemed to have knowledge if as a
result of receiving the information, the local school system:
(i) Either conducted an evaluation and determined that the child
was not a child with a disability or determined that an
evaluation was not necessary; and
(ii) Provided notice to the child's parents of its determination under
this section,
(d) Conditions that apply if no basis of knowledge.
1. If a local school system does not have knowledge that a child is a child
eligible for special education prior to taking disciplinary measures
against the child, the child may be subjected to the same disciplinary
measures as applied to children without disabilities who engaged in
comparable behaviors.
(e) Limitations.
1. If a request is made for an evaluation of a child during the time period
in which the child is subjected to disciplinary measures, the evaluation
must be conducted in an expedited manner.
2. Until the evaluation is completed, the child remains in the educational
placement determined by school authorities, which can include
suspension or expulsion without educational services.
3. If the child is determined to be a child eligible for special education,
taking into consideration information from the evaluation conducted
by the local school system and information provided by the parents,
the local school system shall provide special education and related
services.
(12) Exemption.
(a) Children identified as intellectually gifted are excluded from the provisions of
Chapter 0520-1-9-.15 Discipline Procedures of the State Board of Education
Rules and Regulations.
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(b) Children with a dual diagnosis that includes intellectually gifted shall be
considered as children with a disability and may not be excluded from the
requirements of Chapter 0520-1-9-.15 Discipline Procedures of the State
Board of Education Rules and Regulations.
0520-1-9-.16 Children in Private Schools
(1) Child find for private school children.
(a) Each local school system shall locate, identify, and evaluate all private school
children the local school system suspects of having disabilities, including
religious-school children residing in the jurisdiction of the local school system
where parents reside. The activities undertaken to carry out this responsibility
for private school children must be comparable to activities undertaken for
children in public schools.
(b) Each local school system shall consult with appropriate representatives of
private school children with disabilities on how to carry out the activities.
(2) Private school placements by public agencies.
(a) Developing an IEP.
1. Before a local school system places a child eligible for special
education in, or refers a child to a private school or facility, the agency
shall initiate and conduct a meeting to develop an IEP.
2. The local school system shall ensure that a representative of the
private school or facility attends the meeting. If the representative
cannot attend, the local school system shall use other methods to
ensure participation by the private school or facility, including
individual or conference telephone calls.
(b) Reviewing and revising the IEP.
1. After a child eligible for special education enters a private school or
facility, any meetings to review and revise the child's IEP may be
initiated and conducted by the private school or facility at the
discretion of the local school system.
2. If the private school or facility initiates and conducts these meetings,
the local school system shall ensure that the parents and a school
representative:
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(i) Are involved in any decision about the child's IEP; and
(ii) Agree to any proposed changes in the IEP before those changes
are implemented.
(c) Responsibility.
1. Even if a private school or facility implements a child's IEP,
responsibility for compliance with this part remains with the local
school system and the Department.
(d) A child eligible for special education shall only be placed by a local school
system in a nonpublic educational agency when the IEP team determines that
the placement is required for educational reasons and the local school system
can not offer an IEP within the local school system or by contracting with
other local school systems.
(e) A child eligible for special education who is placed in or referred to a private
school or facility by a local school system:
1. Must be provided special education and related services.
(i) In conformance with an IEP, and
(ii) At no cost to the parents or student; and
2. Is provided an education that meets Tennessee standards for licensure
and certification of personnel; and
3. Has all of the rights of a child eligible for special education as if the
child were in a local school system.
(f) An appropriate in-state program that can implement an IEP shall be used
unless there exists an out-of-state program that is closer to the child's local
school system.
(3) Placement of children by parents if FAPE is at issue.
(a) This part does not require a local school system to pay for the cost of
education, including special education and related services, of a child eligible
for special education at a private school or facility if that local school system
made FAPE available to the child and the parents elected to place the child in
a private school or facility. However, the public agency shall include that
child in the population whose needs are addressed consistent with § 300.450-
300.462 of the IDEA and Tennessee state law.
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(b) Disagreements about FAPE.
1. Disagreements between a parent and a local school system regarding
the availability of a program appropriate for the child, and the question
of financial responsibility, are subject to due process.
(c) Reimbursement for private school placement.
1. If the parents of a child eligible for special education, who previously
received special education and related services under the authority of a
local school system, enroll the child in a private preschool, elementary,
or secondary school without the consent of or referral by the local
school system, a court or a hearing officer may require the local school
system to reimburse the parents for the cost of that enrollment if the
court or hearing officer finds that the agency had not made FAPE
available to the child in a timely manner prior to that enrollment and
that the private placement is appropriate. A parental placement may
be found to be appropriate by a hearing officer or a court even if it
does not meet the Tennessee standards that apply to education
provided by the Department and local school systems.
(d) Limitation on reimbursement.
1. The cost of reimbursement described may be reduced or denied if:
(i) At the most recent IEP meeting that the parents attended prior to
removal of the child from the public school, the parents did not
inform the IEP team that they were rejecting the placement
proposed by the local school system to provide FAPE to their
child, including stating their concerns and their intent to enroll
their child in a private school at public expense; or
(ii) At least ten (10) business days (including any holidays that
occur on a business day) prior to the removal of the child from
the public school, the parents did not give written notice to the
local school system of the information required in the above;
(iii) If, prior to the parents' removal of the child from the public
school, the local school system informed the parents of its
intent to evaluate the child (including a statement of the
purpose of the evaluation that was appropriate and reasonable),
but the parents did not make the child available for the
evaluation; or
(iv) Upon a judicial finding of unreasonableness with respect to
actions taken by the parents.
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(e) Exception.
1. Notwithstanding the notice requirement, the cost of reimbursement
may not be reduced or denied for failure to provide the notice if :
(i) The parent is illiterate and cannot write in English;
(ii) Compliance with the placement would likely result in physical
or serious emotional harm to the child;
(iii) The school prevented the parent from providing the notice; or
(iv) The parents had not received notice of the notice requirement.
(4) Private school children unilaterally placed by their parents.
(a) Services determined.
1. No individual right to special education and related services.
(i) No private school child eligible for special education has an
individual right to receive some or all of the special education
and related services that the child would receive if enrolled in a
public school.
(ii) Decisions about the services that will be provided to private
school children eligible for special education must be made in
accordance with 2 and 3 below.
2. Consultation with representatives of private school children eligible
for special education.
(i) Each local school system shall consult, in a timely and
meaningful way, with appropriate representatives of private
schools with children eligible for special education in light of
the funding, the number of private school children eligible for
special education, the needs of private school children eligible
for special education, and their location to decide:
(I) Which children will receive services;
(II) What services will be provided;
(III) How and where the services will be provided; and
(IV) How the services provided will be evaluated.
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(ii) Genuine opportunity.
(I) Each local school system shall give appropriate
representatives of private school with children eligible
for special education a genuine opportunity to express
their views regarding each matter that is subject to the
consultation requirements in this section.
(iii) Timing.
(I) The consultation required by this part must occur
before the local school system makes any decision that
affects the opportunities of private schools with
children eligible for special education to participate in
services.
(iv) Decisions.
(I) The local school system shall make the final decisions
with respect to the services to be provided to children
eligible for special education in private schools.
3. Service plan for each child served.
(i) If a child eligible for special education is enrolled in a religious
or other private school and will receive special education or
related services from a local school system, the local school
system shall:
(I) Initiate and conduct meetings to develop, review, and
revise a service plan for the child, and
(II) Ensure that a representative of the religious or other
private school attends each meeting. If the
representative cannot attend, the local school system
shall use other methods to ensure participation by the
private school, including individual or conference
telephone calls.
(b) Services provided.
1. The services provided to private schools with children eligible for
special education must be provided by personnel meeting the same
standards as personnel providing services in the public schools.
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2. Private schools with children eligible for special education may
receive a different amount of service than children with disabilities in
public schools.
3. No private school with a child eligible for special education is entitled
to any service or to any amount of a service the child would receive if
enrolled in a public school.
4. Services must be provided in accordance with a service plan.
(i) Each private school with a child eligible for special education
who has been designated to receive services, must have a
services plan that describes the specific special education and
related services that the local school system will provide to the
child in light of the services that the local school system has
determined, annually.
(ii) The service plan must, to the extent appropriate:
(I) Meet the IEP content requireme nts with respect to the
services provided; and
(II) Be developed, reviewed, and revised consistent with
IEP requirements.
(c) Service plan.
1. The Department shall ensure that a service plan is developed and
implemented for each private school child eligible for special
education who has been designated to receive special education and
related services.
(d) Expenditures.
1. Each local school system must spend on providing special education
and related services to private school children eligible for special
education.
(i) For children aged 3 through 21 inclusive, an amount that is the
same proportion of the local school system's total subgrant
under section 611(g) of the IDEA as the number of private
school children eligible for special education aged 3 through 21
inclusive residing in its jurisdiction is to the total number of
children eligible for special education in its jurisdiction aged 3
through 21 inclusive; and
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(ii) For children aged 3 through 5, an amount that is the same
proportion of the local school system's total subgrant under
section 619(g) of the IDEA as the number of private school
children eligible for special education aged 3 through 5
residing in its jurisdiction is to the total number of children
eligible for special education in its jurisdiction aged 3 through
5.
2. Child count.
(i) Each local school system shall:
(I) Consult with representatives of private school children
in deciding how to conduct the annual count of the
number of private school children eligible for special
education; and
(II) Ensure that the count is conducted on December 1 of
each year.
(ii) The child count must be used to determine the proportional
amount that the local school system must spend on providing
special education and related services to private school
children eligible for special education in the next subsequent
fiscal year.
3. Expenditures for child find activities may not be considered in
determining whether the local school system has met these
requirements.
4. Additional services permissible.
(i) State and local educational agencies are not prohibited from
providing services to private school children eligible for
special education in excess of those required by this part,
consistent with State law or local policy.
(e) Location of services and transportation.
1. On-site.
(i) Services provided to private school children eligible for special
education may be provided on-site at a child's private school,
including a religious school, to the extent consistent with law.
2. Transportation.
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(i) If necessary for the child to benefit from or participate in the
services provided under this part, a private school with a child
eligible for special education must be provided transportation:
(I) From the child's school or the child's home to a site
other than the private school; and
(II) From the service site to the private school, or to the
child's home, depending on the timing of the services.
(ii) Local school systems are not required to provide transportation
from the child's home to the private school.
3. Cost of transportation.
(i) The cost of this transportation may be included in calculating
whether the local school system has met their expenditure
requirement.
(f) Complaints.
1. Due process inapplicable.
(i) The due process procedures do not apply to complaints that a
local school system has failed to meet expenditure and service
including the provision of services indicated on the child's
service plan.
2. Due process applicable.
(i) The due process procedures do apply to complaints that a local
school system has failed to meet the requirements of child find
for private school children eligible for special education
including the requirements of evaluation and determination of
eligibility.
3. State complaints.
(i) Complaints that the local school system has failed to meet the
requirements of TCA § 0520-1-9-.16 may be filed with the
Division.
(g) Separate classes prohibited.
Page 90 of 94
1. A local school system may not use funds available under section 611
or 619 of the IDEA for classes that are organized separately on the
basis of school enrollment or religion of the students if:
(i) The classes are at the same site; and
(ii) The classes include students enrolled in public schools and
students enrolled in private schools.
(h) Requirement that funds not benefit a private school.
1. A local school system may not use funds provided under section 611 or
619 of the IDEA to finance the existing level of instruction in a private
school or to otherwise benefit the private school.
2. The local school system shall use funds provided under Part B of the
IDEA to meet the special education and related services needs of
children eligible for special education enrolled in private schools, but
not for:
(i) The needs of a private school; or
(ii) The general needs of the students enrolled in the private school.
(i) Use of public school personnel.
1. A local school system may use funds available under sections 611 and
619 of the IDEA to make public school personnel available in other
than public facilities:
(i) To the extent necessary to provide services for private school
children eligible for special education; and
(ii) If those services are not normally provided by the private
school.
(j) Use of private school personnel.
1. A local school system ma y use funds available under section 611 or
619 of the IDEA to pay for services of an employee:
(i) That performs the services outside of his or her regular hours
of duty; and,
(ii) That performs the services under public supervision and
control.
Page 91 of 94
(k) Requirements concerning property, equipment, and supplies for the benefit of
private school children eligible for special education.
1. A local school system must keep title to and exercise continuing
administrative control of all property, equipment, and supplies
acquired with funds under section 611 or 619 of the IDEA for the
benefit of private school children eligible for special education.
2. The local school system may place equipment and supplies in a private
school for the period of time needed for the program.
3. The local school system shall ensure that the equipment and supplies
placed in a private school:
(i) Are used only for children eligible for special education; and,
(ii) Can be removed from the private school without remodeling
the private school facility.
4. The local school system shall remove equipment and supplies from a
private school if:
(i) The equipment and supplies are no longer needed for children
eligible for special education; or
(ii) Removal is necessary to avoid unauthorized use of the
equipment and supplies for other than children eligible for
special education.
5. No funds for Part B of the IDEA may be used for repairs, minor
remodeling, or construction of private school facilities.
Authority: TCA § 49-1-302, 49-10-101, and 49-10-701.
Legal contact and/or party who will approve final copy for publication:
Mary Jo Howland
State Board of Education
9th Floor, Andrew Johnson Tower
710 James Robertson Parkway
Page 92 of 94
Nashville, TN, 37243-1050
615) 532-3530
Contact for disk acquisition: Same as above
Signature of the agency officer or officers directly responsible for the proposing and/or
drafting of these rules:
______________________________________
Mary Jo Howland
Research Associate
State Board of Education
The role call vote by the State Board of Education on the proposed Rule was as follows:
Avron Fogelman Aye
Charles Frazier Aye
Burrell Harris Aye
Cherrie Holden Aye
Valerie Rutledge Aye
Richard Ray Aye
Melvin Wright Aye
I certify that this is an accurate and complete copy of the proposed rule lawfully promulgated
and adopted by the State Board of Education on the 21st day of July, 2000.
The Secretary of State is hereby instructed that, in the absence of a petition for rulemaking
hearing being filed under the conditions set out herein and in the locations described, he is to
treat the proposed rule as being placed on file in his office as rule at the expiration of thirty
(30) days after the publication date of the issue of the Tennessee Administrative Register in
which these rules are published.
__________________________________
Dr. Douglas E. Wood, Executive Director
State Board of Education
Sworn to and subscribed before me on this the _____ day of __________, 2000.
Page 93 of 94
__________________________________
Notary Public
My Commission expires on the _____ day of _______________, 20_____.
All proposed rules provided for herein have been examined by the Attorney General and
Reporter of the State of Tennessee and are approved as to legality pursuant to the provisions
of the Administrative Procedures Act, Tennessee Code Annotated, Title 4, Chapter 5.
__________________________________
Paul G. Summers
Attorney General and Reporter
The proposed rules set out herein were properly filed in the Department of State on the
_____ day of ________________, 20____, pursuant to the instructions set out above, and in
the absence of the filing of an appropriate petition calling for a rulemaking hearing, will
become effective on the _____ day of _______________, 20_____.
__________________________________
Riley C. Darnell
Secretary of State
BY: __________________________
Legislative Oversight of Agency Rulemaking Questions
and Answers on the Agency Rules
1. A brief summary of the rule and description of all relevant changes in previous
regulations effectuated by this rule:
The Department of Education, Division of Special Education, is proposing
significant changes to chapter 0520-1-9 of the Rules, Regulations and Minimum
Standards for the Governance of Tennessee Public Schools. These changes reflect
the new statutory requirements under Part B of the June 1997 Reauthorization of
the Individuals with Disabilities Education Act (IDEA). For the State to receive
grant awards for Part B funds of the IDEA for FY 2001 the State must ensure that
it has on file with the Secretary policies and procedures, including regulations,
that are consistent with IDEA regulations published March 12, 1999.
Since the State Board of Education meeting on April 28, 2000, the State Board of
Education has held a public proposed rulemaking hearing and has invited public
comment. The Department of Education reviewed all comments, oral and written,
and responded to all comments by topic areas. The public comments and the
discussions generated by them have been used to prepare a revised document.
2. A citation to and a brief description of any federal law or regulation or any state
law or regulation mandating promulgation of such rule or establishing guidelines
relevant thereto:
TCA § 49-1-302.
3. Identification of persons, organizations, corporations, or governmental entities
most directly affected by this rule, and whether the aforementioned urge adoption
or rejection of this rule:
State Department of Education, local education agencies, teachers, and
institutions of higher education.
4. Identification of any opinions of the Attorney General or any judicial ruling which
directly relates to the rule:
None.
5. An estimate of the probable increase or decrease in state and local government
revenues and expenditures, it any, resulting from the promulgation of this rule,
and the assumptions and reasoning upon which this estimate is based:
Minimal.
6. Identification of the appropriate agency representative or representatives
possessing substantial knowledge and understanding of this rule:
Mary Jo Howland, State Board of Education
Joe Fisher, State Department of Education
7. Person or persons who will explain the rule at the scheduled meeting of the
Government Operations Committee:
Mary Jo Howland, State Board of Education
9th Floor, Andrew Johnson Tower
710 James Robertson Parkway
Nashville, TN 37243-1050 (615) 532-3530
Joe Fisher, State Department of Education
5th Floor, Andrew Johnson Tower
710 James Robertson Parkway
Nashville, NT 37243-0375 (615) 741-3340
8. Any additional information relevant to the rule proposed for continuation which
the Committee requests can be obtained from:
State Board of Education.
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