FRANKFORT, Ky. (WTVQ) – The Kentucky Department of Education is moving ahead with aligning special education regulations with federal law, as well as clarifying special education regulations for districts.
The Local Superintendents Advisory Council (LSAC) met March 30 to discuss policy issues and regulations for review and action ahead of the Kentucky Board of Education’s upcoming April 7 regular meeting. On the agenda for the council was an amendment to 707 KAR 1:340, Procedural Safeguards.
The proposed changes to the regulation ensure compliance with federal law. Additionally, sections 3 and 4 of the regulation clarify the difference between an Admission and Release Committee meeting notice and prior written notice.
A meeting notice is a notice to parents or guardians that an ARC meeting will take place. Prior written notice is a notice of proposed or refused action by the local education agency.
During the discussion, Sheila Mitchell, an LSAC member and superintendent of Anderson County Schools, raised concerns over the difference between KDE’s and local school districts’ interpretations of prior written notice.
Seeking a narrower regulation, Mitchell proposed adding a line to the regulation that reads, “Notice is given before implementation of ARC decision about proposal or refusal by the ARC.”
“That way we all understand … what is the intent of that regulation,” Mitchell said.
The proposed amendment incorporates the prior written notice requirements outlined in federal law, said Todd Allen, KDE’s general counsel.
“There’s actually nothing in federal law that strictly limits prior written notice to when an ARC makes a decision,” Allen explained.
“Prior written notice is required by federal law when a public agency proposes or refuses to initiate or change the identification, evaluation, educational placement or provision of Free Appropriate Public Education to a child.”
All four of these decisions could be made regarding a student with disabilities, and the federal requirement of prior written notice provides parents with the right to written notice if a change is being made.
The department has declined to make any changes to the regulation that would limit prior written notice to times when the ARC would decide on any of these changes.
“The federal regulation puts that burden on the district,” Allen said. “The federal regulation is not so narrowly tailored to restrict prior written notice to only providing that notice when an ARC makes a decision.
“To ask the agency to narrowly tailor our state regulation in that way would ask us to limit the rights of parents that are provided in federal law.”
Not only would this limit the rights of parents, but it also would endanger federal funding under the Individuals with Disabilities Education Act that the state currently is receiving.
As a condition of Kentucky receiving federal IDEA funds, the state must implement policies that provide the same, or greater, protections to students with disabilities.
Misinformation has been distributed that the amendment to the regulation is an opportunity for KDE to cite districts for non-compliance when they remove a student one time from the classroom, Allen said.
“That’s simply inaccurate,” he said. “That is not supported by the plain language of the federal regulation or the plain language of the state regulation.”
Ultimately, LSAC voted to take no action on the amendment to 707 KAR 1:340. However, members voted to recommend that the KBE seek a panel of attorneys to review the regulation and offer feedback as needed.
Going forward, the department will continue to provide guidance to districts regarding disciplinary removal, as this is not the same as educational placement and does not require prior written notice.
The amendment will head to the KBE with approval by KDE.