Selected Arizona Statutes Relating to Special Education 15

Selected Arizona Statutes Relating to Special Education

15-761. Definitions

In this article, unless the context otherwise requires:

1. "Autism" means a developmental disability that significantly affects verbal and nonverbal communication and social interaction and that adversely affects educational performance. Characteristics include irregularities and impairments in communication, engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines and unusual responses to sensory experiences. Autism does not include children with characteristics of emotional disability as defined in this section.

2. "Child with a disability" means a child who is at least three but less than twenty-two years of age, who has been evaluated pursuant to section 15-766 and found to have at least one of the following disabilities and who, because of the disability, needs special education and related services:

a. Autism.

b. Emotional disability.

c. Hearing impairment.

d. Other health impairments.

e. Specific learning disability.

f. Mild, moderate or severe mental retardation.

g. Multiple disabilities.

h. Multiple disabilities with severe sensory impairment.

i. Orthopedic impairment.

j. Preschool moderate delay.

k. Preschool severe delay.

l. Preschool speech/language delay.

m. Speech/language impairment.

n. Traumatic brain injury.

o. Visual impairment.

3. "Educational disadvantage" means a condition which has limited a child's opportunity for educational experience resulting in a child achieving less than a normal level of learning development.

4. "Eligibility for special education" means the pupil must have one of the disabilities contained in paragraph 2 of this section and must also require special education services in order to benefit from an educational program.

5. "Emotional disability":

a. Means a condition whereby a child exhibits one or more of the following characteristics over a long period of time and to a marked degree that adversely affects the child's performance in the educational environment:

i. An inability to learn which cannot be explained by intellectual, sensory or health factors.

ii. An inability to build or maintain satisfactory interpersonal relationships with peers and teachers.

iii. Inappropriate types of behavior or feelings under normal circumstances.

iv. A general pervasive mood of unhappiness or depression.

v. A tendency to develop physical symptoms or fears associated with personal or school problems.

b. Includes children who are schizophrenic but does not include children who are socially maladjusted unless they are also determined to have an emotional disability as determined by evaluation as provided in section 15-766.

6. "Exceptional child" means a gifted child or a child with a disability.

7. "Foster parent" means a person who may serve as the parent of a child with disabilities if that person has an ongoing, long-term parental relationship with the child, is willing to make educational decisions for the child and has no personal interest that would conflict with the interests of the child.

8. "Gifted child" means a child who is of lawful school age, who due to superior intellect or advanced learning ability, or both, is not afforded an opportunity for otherwise attainable progress and development in regular classroom instruction and who needs special instruction or special ancillary services, or both, to achieve at levels commensurate with the child's intellect and ability.

9. "Hearing impairment" means a loss of hearing acuity as determined by evaluation pursuant to section 15-766, which interferes with the child's performance in the educational environment and requires the provision of special education and related services.

10."Home school district" means the school district in which the person resides who has legal custody of the child, as provided in section 15-824, subsection B. If the child is a ward of the state and a specific person does not have legal custody of the child, the home school district is the district that the child last attended or, if the child has not previously attended a public school in this state, the school district within which the child currently resides.

11."Individualized education program" means a written statement, as defined in 20 United States code sections 1401 and 1412, for providing special education services to a child with a disability that includes the pupil's present levels of educational performance, the measurable annual goals and short-term objectives or benchmarks for evaluating progress toward those goals and the specific special education and related services to be provided.

12."Individualized education program team" means a team whose task is to develop an appropriate educational program for the child and that includes:

a. The parent.

b. At least one of the child's regular education teachers.

c. One of the child's special education teachers.

d. A representative of the public agency that is qualified to provide or supervise the provision of instruction that is designed specifically for children with disabilities who is knowledgeable about general curriculum and the availability of resources.

e. A person who can interpret the instructional implications of evaluation results.

f. The child, if appropriate.

g. At the discretion of the parent or the public agency, other persons with knowledge or special expertise about the child.

13."Mental retardations means a significant impairment of general intellectual functioning that exists concurrently with deficits in adaptive behavior and that adversely affects the child's performance in the educational environment.

14."Mild mental retardation" means performance on standard measures of intellectual and adaptive behavior between two and three standard deviations below the mean for children of the same age.

15."Moderate mental retardation" means performance on standard measures of intellectual and adaptive behavior between three and four standard deviations below the mean for children of the same age.

16."Multidisciplinary evaluation team" means a team of persons including individuals described as the individualized education program team and other qualified professionals who shall determine whether a child is eligible for special education.

17."Multiple disabilities" means learning and developmental problems resulting from multiple disabilities as determined by evaluation pursuant to section 15-766 that cannot be provided for adequately in a program designed to meet the needs of children with less complex disabilities. Multiple disabilities include any of the following conditions that require the provision of special education and related services:

a. Two or more of the following conditions:

i. Hearing impairment.

ii. Orthopedic impairment.

iii. Moderate mental retardation.

iv. Visual impairment.

b. A child with a disability listed in subdivision (a) of this paragraph existing concurrently with a condition of mild mental retardation, emotional disability or specific learning disability.

18."Multiple disabilities with severe sensory impairment" means multiple disabilities that include at least one of the following:

a. Severe visual impairment or severe hearing impairment in combination with another severe disability.

b. Severe visual impairment and severe hearing impairment.

19."Orthopedic impairment" means one or more severe orthopedic impairments and includes those that are caused by congenital anomaly, disease and other causes, such as amputation or cerebral palsy, and that adversely affect a child's performance in the educational environment.

20."Other health impairments" means limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, due to chronic or acute health problems which adversely affect a pupil's educational performance.

21."Out-of-home care" means the placement of a child with a disability outside of the home environment and includes twenty-four hour residential care, group care or foster care on either a full-time or part-time basis.

22."Parent" means the natural or adoptive parent of a child, the legal guardian of a child, a relative with whom a child resides and who is acting as the parent of that child, a surrogate parent who has been appointed for a child pursuant to section 15-763.01 or a foster parent as defined in this section.

23."Preschool child" means a child who is at least three of age but who has not reached the required age for kindergarten, subject to section 15-771, subsection F.

24."Preschool moderate delay" means performance by a preschool child on a norm-referenced test that measures at least one and one-half, but not more than three, standard deviations below the mean for children of the same chronological age in two or more of the following areas:

a. Cognitive development.

b. Physical development.

c. Communication development.

d. Social or emotional development.

e. Adaptive development.

The results of the norm-referenced measure must be corroborated by information from a comprehensive developmental assessment and from parental input, if available, as measured by a judgment based assessment or survey. If there is a discrepancy between the measures, the evaluation team shall determine eligibility based on a preponderance of the information presented.

25."Preschool severe delay" means performance by a preschool child on a norm-referenced test that measures more than three standard deviations below the mean for children of the same chronological age in one or more of the following areas:

a. Cognitive development.

b. Physical development.

c. Communication development.

d. Social or emotional development

e. Adaptive development.

26."Preschool speech/language delay" means performance by a preschool child on a norm-referenced language test that measures at least one and one-half standard deviations below the mean for children of the same chronological age or whose speech, out of context, is unintelligible to a listener who is unfamiliar with the child. Eligibility under this paragraph is appropriate only if a comprehensive developmental assessment or norm-referenced assessment and parental input indicate that the child is not eligible for services under another preschool category. The evaluation team shall determine eligibility based on a preponderance of the information presented.

27."Prior written notice" means notice, as defined in 20 United States code sections 1414 and 1415, that includes a description of the action proposed or refused by the school, an explanation of why the school proposes or refuses to take the action, a description of any options the school considered and the reasons why those options were rejected, a description of each evaluation procedure, test, record or report the school used as a basis for the proposal or refusal, a description of any other factors that were relevant to the school’s proposal or refusal, a full explanation of all of the procedural safeguards available to the parent and a listing of sources for parents to contact to obtain assistance in understanding the notice.

28."Related services" means those supportive services, as defined in 20 United States code section 1401, that are required to assist a child with a disability who is eligible to receive special education services in order for the child to benefit from special education.

29."Residential special education placement" means the placement of a child with a disability in a public or private residential program, as provided in section 15-765, subsection G, in order to provide necessary special education and related services as specified in the child's individualized education program.

30."Severe mental retardation" means performance on standard measures of intellectual and adaptive behavior measures at least four standard deviations below the mean for children of the same age.

31."Special education" means the adjustment of the environmental factors, modification of the course of study and adaptation of teaching methods, materials and techniques to provide educationally for those children who are gifted or disabled to such an extent that they need specially designed instruction in order to receive educational benefit. Difficulty in writing, speaking or understanding the English language due to an environmental background wherein a language other than English is spoken primarily or exclusively shall not be considered a disability that requires special education.

32."Special education referral" means a written request for an evaluation to determine whether a pupil is eligible for special education services that, for referrals not initiated by a parent, includes documentation of appropriate efforts to educate the pupil in the regular education program.

33."Specific learning disability":

a. Means a specific learning disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which may manifest itself in an imperfect ability to listen, think, speak, read, write, spell or do mathematical calculations.

b. Includes such conditions as perceptual disabilities, minimal brain dysfunction, dyslexia and aphasia.

c. Does not include learning problems which are primarily the result of visual, hearing, motor or emotional disabilities, of mental retardation or of environmental, cultural or economic disadvantage.

34."Speech/language impairment" means a communication disorder such as stuttering, impaired articulation, severe disorders of syntax, semantics or vocabulary, or functional language skills, or a voice impairment, as determined by evaluation pursuant to section 15-766, to the extent that it calls attention to itself, interferes with communication or causes a child to be maladjusted.

35."State placing agency" has the same meaning prescribed in section 15-1181.

36."Surrogate parent" means a person who has been appointed by the court pursuant to section 15-763.01 in order to represent a child in decisions regarding special education.

37."Traumatic brain injury":

a. Means an acquired injury to the brain that is caused by an external physical force and that results in total or partial functional disability or psychosocial impairment, or both, that adversely affects educational performance.

b. Applies to open or closed head injuries resulting in mild, moderate or severe impairments in one or more areas, including cognition, language, memory, attention, reasoning, abstract thinking, judgment, problem solving, sensory, perceptual and motor abilities, psychosocial behavior, physical functions, information processing and speech.

c. Does not include brain injuries that are congenital or degenerative or brain injuries induced by birth trauma.

38."Visual impairment" means a loss in visual acuity or a loss of visual field, as determined by evaluation pursuant to section 15-766, that interferes with the child's performance in the educational environment and that requires the provision of special education and related services.

15-763.01. Surrogate parent: appointment

A. A petition for the appointment of a surrogate parent for a child with a disability shall be made to a court of competent jurisdiction if any of the following conditions have been met:

1. No parent can be identified.

2. A public agency cannot determine the whereabouts of a parent, after having made three documented and reasonable attempts.

3. The child is a ward of the state.

B. In order for a person to be eligible to receive an appointment as a surrogate parent for a child with a disability all of the following must be true:

1. The person shall be determined by the court to possess knowledge and skills that will ensure adequate representation of the child.

2. The person may not be an employee of a state agency if that agency is involved in the education or care of the child.

3. The person may not have any interests that would conflict with the best interests of the child.

4. The person shall have a valid class one fingerprint clearance card issued pursuant to title 41, chapter 12, article 3.1. Persons currently serving as surrogate parents shall obtain a class one fingerprint clearance card by January 1, 2002.

C. A person who is appointed as a surrogate parent for a child with a disability shall not be deemed to be an employee of the state solely as a result of serving as a surrogate parent and receiving compensation for that service.

15-765. Special education in rehabilitation, corrective or other state and county supported institutions, facilities or homes

A. For the purposes of this section and section 15-764, children with disabilities who are being provided with special education in rehabilitation, corrective or other state and county supported institutions or facilities are the responsibility of that institution or facility, including children with disabilities who are not enrolled in a residential program and who are being furnished with daily transportation. Special education programs at the institution or facility shall conform to the conditions and standards prescribed by the director of the division of special education.

B. Notwithstanding the provisions of subsection A of this section, the department of economic security or the department of health services may request on behalf of a school-age child with a disability residing in a residential facility or foster home operated or supported by the department of economic security or the department of health services that the school district in which the facility or home is located enroll the school-age child in the district, subject to section 15-825. The school district shall, upon the request by the department of economic security or the department of health services, enroll the child and provide any necessary special education and related services, subject to section 15-766. A school district in which a child with a disability is enrolled shall coordinate the development of an individualized education program with the development of an individual program or treatment plan. The provision of special education and related services to a child with a disability may be subject to the provisions of subsection D of this section.

C. Before any placement is made in facilities described in this section, the school district of residence shall insure that a full continuum of alternative placements is available to meet the needs of children with disabilities and that the proposed placement is the least restrictive environment in which appropriate education services can be provided to the child.

D. A school district or county school superintendent may contract with, and make payments to, other public or private schools, institutions and agencies approved by the division of special education, within or without the school district or county, for the education of and provision of services to children with disabilities if the provisions of section 15-766 and the conditions and standards prescribed by the division of special education have been met and if unable to provide satisfactory education and services through its own facilities and personnel in accordance with the rules prescribed by the state board of education. No school district may contract or make payments under the authority of this section or section 15-764 or any other provisions of law for the residential or educational costs of placement of children with disabilities in an approved private special education school, institution or agency unless the children are evaluated and placed by a school district. The following special provisions apply in order to qualify for the group B ED-P weight:

1. If the child is placed in a private special education program, the chief administrative official of the school district or county or other person designated by the school district or county as responsible for special education shall verify that the pupil is diagnosed with an emotional disability as defined in section 15-761, that no appropriate program exists within the school district or county, as applicable, and that no program can feasibly be instituted by the school district or county, as applicable.

2. If the child is placed in a special program that provides intensive services within a school district, the chief administrative official of the school district or county or other person as designated by the school district or county as responsible for special education shall verify that the pupil placed in such a program is diagnosed with an emotional disability as defined in section 15-761 and that appropriate services cannot be provided in traditional resource and self-contained special education classes.

E. When a state placing agency initially places a pupil in a private residential facility, the home school district must conduct an evaluation pursuant to section 15-766 or review the educational placement of a pupil who has previously been determined eligible for special education services. The school district shall notify the appropriate state placing agency when a child requires an evaluation for possible receipt of services provided by that agency or a residential special education placement. The school district and the state agency shall jointly evaluate the child, including consideration of relevant information from additional sources, including probation or parole officers, caseworkers, guardians ad litem and court appointed special advocates.

F. If the child is not eligible for special education or does not require residential special education placement, sections 15-1182 and IS- 1 183 apply.

G. If the individualized education program team determines that a residential special education placement is the least restrictive environment in which an appropriate educational program can be provided, the home school district shall submit the following documentation to the department of education:

1. A residential special education voucher application signed by designated representatives of the state placing agency, as defined in section 15-1181, and the home school district, respectively.

2. The educational reasons for recommending the residential special education placement, including an evaluation or addendum to the evaluation that describes the instructional and behavioral interventions that were previously attempted and the educational reasons for recommending the residential special education placement, including documentation that the nature or severity of the disability is such that education in a less restrictive environment is not appropriate.

3. Exit criteria as required in subsection K of this section.

4. That prior written notice for a change in the child's placement was provided.

H. If a residential special education placement is required by the child's individualized education program, the educational component of the residential facility shall be one that is approved by the department of education for the specific special education services required.

I. The residential component of the facility in which the residential special education placement is made shall be licensed by the department of economic security or the department of health services, whichever is appropriate.

J. Following and in accordance with the consensus decision of the individualized education program team as prescribed in section 15-766, a residential special education placement shall be made by the school district and the appropriate state agency. The individualized education program team shall determine whether a residential special education placement is necessary. The state placing agency shall consider the recommendations of the individualized education program team in selecting the specific residential facility. The department of education shall enter into interagency services agreements with the department of economic security or the department of health services to establish a mechanism for resolving disputes if the school district and the department of economic security or the department of health services cannot mutually agree on the specific residential placement to be made. Dispute resolution procedures may not be used to deny or delay residential special education placement.

K. The individualized education program for any child who requires residential special education placement must include exit criteria that indicate when the educational placement of the child shall be reviewed to determine whether the child can be moved to a less restrictive placement.

L. All noneducational and nonmedical costs incurred by the placement of a child with a disability in a private or public school program and concurrent out-of-home care program shall be paid by the department of economic security for those children eligible to receive services through the division of developmental disabilities or the administration for children, youth and families of the department of economic security and by the department of health services for those children eligible to receive services through the division of behavioral health in the department of health services or children's rehabilitation services. Nothing in this section is intended to prevent or limit the department of health services and the deparunent of economic security from joint case management of any child who qualifies for services from both acencies or from sharing the noneducational costs of providing those services. The educational costs incurred by the placement of a child with a disability in an out-of-home care facility shall be paid as follows:

1. Through a residential special education placement voucher as provided in section 15-1184 if the child is determined to require a residential special education placement as defined in section 15-761.

2. Through an initial or continuing residential education voucher if a child is placed in a private residential facility by a state placing agency, as defined in section 15-118 1, for care, treatment and safety reasons and the child needs educational services while in that placement.

3. Through a certificate of educational convenience if the child is attending a public school not within the child's school district of residence as provided in section 15-825.

4. By the home school district, pursuant to a contract with a public or private school as provided in subsection D of this section, if the home school district is unable to provide satisfactory education and services through its own facilities and personnel.

M. The department of economic security or the department of health services, whichever is appropriate, shall determine if the child placed for purposes of special education in a private or public school and concurrent out-of-home care is covered by an insurance policy which provides for inpatient or outpatient child or adolescent psychiatric treatment. The appropriate state agency may only pay charges for treatment costs that are not covered by an insurance policy. Notwithstanding any other law, the appropriate state agency may pay for placement costs of the child before the verification of applicable insurance coverage. On the depletion of insurance benefits, the appropriate state agency shall resume payment for all noneducational and nonmedical costs incurred in the treatment of the child. The appropriate state agency may request the child's family to contribute a voluntary amount toward the noneducational and nonmedical costs incurred as a result of residential placement of the child. The amount which the appropriate state agency requests the child's family to contribute shall be based on guidelines in the rules of the appropriate state agency governing the determination of contributions by parents and estates. Nothing in this subsection shall be construed to require parents to incur any costs for required special education and related services or shall be construed to result in a reduction in lifetime insurance benefits available for a child with a disability.

N. If appropriate services are offered by the school district and the parent or the child chooses for the child to attend a private facility, either for day care or for twenty-four hour care, neither the school district nor the respective agency is obligated to assume the cost of the private facility. If residential twenty-four hour care is necessitated by factors such as the child's home condition and is not related to the special educational needs of the child, the agency responsible for the care of the child is not required to pay any additional costs of room and board and nonmedical expenses pursuant to this section.

15-766. Evaluation of child for placement in special education program

A. A special education referral shall be made under the direction of the chief administrative official of the school district or county, or such person officially designated as responsible for special education, after consultation with the parent or guardian.

B. Before a child who is suspected of having a disability is placed in a special education program, an evaluation shall be made of the capabilities and limitations of the child. A reevaluation shall be conducted at least every three years to determine if the disability remains and to determine continued placement in a special education program. The evaluation and reevaluations shall be made by a multidisciplinary evaluation team under the direction of the chief administrative official of the school district or county or such person officially designated as responsible for special education. The team shall review existing evaluation data and shall collect additional data, if necessary, to determine the eligibility of the pupil for special education and to develop an appropriate individual education program. The school district or county may conduct joint evaluations, directly or indirectly with the department of economic security, the department of health services, the department of juvenile corrections and the juvenile courts, or the school district may contract with any state agency or department for all or a portion of the components of the evaluations required by this section. The determination of eligibility for special education services is solely the responsibility of the multidisciplinary evaluation team. The evaluation pursuant to this section shall contain in writing, but is not limited to:

1. A review of current evaluations, including types of tests and the results of those tests.

2. Information provided by the parents, including medical and developmental information and history.

3. Educational history, including the reason for the referral, current classroom based assessments and observations by teachers and related service providers.

4. Documentation of whether the child's educational problems are related to or resulting primarily from reasons of educational disadvantage.

5. A determination of whether the child has a category of disability as defined in section 15-761.

6. The child's present levels of academic performance and current educational needs.

7. A determination of whether the child needs special education and related services.

8. A determination of whether any additions or modifications are needed to allow the child to progress in the general curriculum.

C. The results of the evaluation shall be submitted in writing and with recommendations to the chief administrative official of the school district or county or to such person designated by the chief administrative official as responsible for special education.

D. Any of the evaluation components that are enumerated in subsection B of this section, that are less than three years old and that are appropriate to consider under the specific circumstances may be shared by and among state agencies for the purpose of expediting completion of the evaluation and placement process.

E. The chief administrative official of the school district or county or the person officially designated as responsible for special education shall place the child, based upon the consensus recommendation of the individualized education program team and subject to due process pursuant to 20 United States Code section 1415, except that a child shall not be placed in a special education program without the approval of the child's parent or guardian, or retained in such a program without actual notice to the parent or guardian. Placement may be made or changed pursuant to a hearing officer's decision under 20 United States Code section 1415 or an order from a court of competent jurisdiction. The state board of education shall adopt rules to provide a parent or guardian the opportunity to appeal the selection of a specific hearing officer. The state board of education shall adopt rules prescribing minimum standards for hearing officers and prescribing training requirements for hearing officers.

15-767. Review of special education placement; report of educational progress

The parents of each child who is placed in a special education program shall receive reports of the child's progress in the general curriculum and the child's progress in meeting the goals stated in the child's individualized education program at least as often as progress reports are given to parents of children who are not placed in special education programs. The reports of the child's progress shall address whether the child's progress is sufficient to enable the child to achieve the goals stated in the child's individualized education program by the end of the school year.

15-771. Preschool programs for children with disabilities; definition

A. Each school district shall make available an educational program for preschool children with disabilities who reside in the school district and who are not already receiving services that have been provided through the department of education. The state board of education shall prescribe rules for use by school districts in the provision of educational programs for preschool children with disabilities. School districts are required to make available educational programs for and, for the purposes of calculating average daily attendance and average daily membership, may count only those preschool children who meet the definition of one of the following conditions:

1. Hearing impairment.

2. Visual impairment.

3. Preschool moderate delay.

4. Preschool severe delay.

5. Preschool speech/language delay.

The school district may make available an educational program for speech or language impaired preschool children whose performance on a standardized language test measures one and one-half standard deviations, or less, below the mean for children of their chronological age. The superintendent of public instruction shall prescribe guidelines for the eligibility of speech or language impaired children, except that eligibility under this subsection is appropriate only when a comprehensive developmental assessment or norm-referenced assessment and parental input indicate that the child is not eligible for services under another preschool category.

B. The state board of education shall annually distribute to school districts at least ten per cent of the monies it receives under 20 United States Code section 141 l(c)(2) for preschool programs for children with disabilities. The state board shall prescribe rules for the distribution of the monies to school districts.

C. The governing board of a school district may submit a proposal to the state board of education as prescribed by the state board to receive monies for preschool programs for children with disabilities as provided in this section. A school district which receives monies as provided in this section shall include the monies in the special projects section of the budget as provided in section 15-903, subsection F.

D. All school districts shall cooperate, if appropriate, with community organizations that provide services to preschool children with disabilities in the provision of the district's preschool program for children with disabilities.

E. A school district may not admit a child to a preschool program for children with disabilities unless the child '4 evaluated and recommended for placement as provided in sections 15-766 and 15-767.

F. For the purpose of allocating monies pursuant to 20 United States code section 1419, "jurisdiction" includes high school pupils whose parents reside within the boundaries of a common school district.

G. For purposes of this section, "preschool child" means a child who is at least three years of age but who has not reached the age required for kindergarten. A preschool child is three years of age as of the date of the child's third birthday. The governing board of a school district may admit otherwise eligible children-who are within ninety days of their third birthday, if it is determined to be in the best interest of the individual child. Children who are admitted to programs for preschool children prior to their third birthday are entitled to the same provision of services as if they were three years of age.

15-844. Suspension and expulsion proceedings for children with disabilities

Notwithstanding sections 15-841 and 15-842, the suspension or expulsion of children with disabilities as defined in section 15-761, shall be in accordance with the individuals with disabilities education act (20 United States Code sections 1410 through 1485) and federal regulations issued pursuant to the individuals with disabilities education act.