NAC: CHAPTER 388 - SYSTEM OF PUBLIC INSTRUCTION

[Rev. 8/24/2021 2:10:02 PM]

[NAC-388 Revised Date: 8-21]

CHAPTER 388 - SYSTEM OF PUBLIC INSTRUCTION

SPECIAL INSTRUCTIONAL SERVICES AND PROGRAMS

General Provisions

388.001 Definitions.

388.005 “Academic achievement” defined.

388.015 “Adaptive skills” defined.

388.017 “Agency with personally identifiable information” defined.

388.023 “Assistive technology device” defined.

388.024 “Assistive technology service” defined.

388.028 “Autism spectrum disorder” defined.

388.0285 “Business day” defined.

388.029 “Classroom-based assessment” defined.

388.031 “Cognitive abilities” defined.

388.033 “Collaborative or consulting services” defined.

388.0335 “Communication mode” defined.

388.034 “Day” defined.

388.0345 “Deaf-blindness” defined.

388.035 “Department” defined.

388.041 “Developmental functioning” defined.

388.0415 “Dyslexia” defined.

388.0417 “Emotional disturbance” defined.

388.042 “General education curriculum” defined.

388.043 “Gifted and talented” defined.

388.045 “Health” defined.

388.046 “Health impairment” defined.

388.047 “Hearing impairment” defined.

388.049 “Homeless youth” defined.

388.0495 “Intellectual disability” defined.

388.052 “Intervention” defined.

388.054 “Local educational agency” defined.

388.055 “Mental retardation” defined. [Replaced in revision by NAC 388.0495.]

388.065 “Multiple impairments” defined.

388.067 “Orthopedic impairment” defined.

388.071 “Parent” defined.

388.073 “Participating agency” defined.

388.074 “Peer-reviewed research” defined.

388.075 “Performance in the current educational setting” defined.

388.076 “Personally identifiable information” defined.

388.077 “Positive behavioral strategies, supports and interventions” defined.

388.091 “Program of instruction” defined.

388.092 “Public agency” defined.

388.093 “Pupil with a disability” defined.

388.095 “Regular classroom teacher” defined.

388.101 “Related services” defined.

388.102 “Response to scientific, research-based intervention” defined.

388.1025 “School day” defined.

388.103 “Scientific, research-based intervention” defined.

388.105 “Serious emotional disturbance” defined. [Replaced in revision by NAC 388.0417.]

388.111 “Social and emotional condition” defined.

388.115 “Special education” defined.

388.117 “Specific learning disability” defined.

388.121 “Speech and language” defined.

388.125 “Speech and language impairment” defined.

388.131 “Superintendent” defined.

388.132 “Supplementary aids and services” defined.

388.133 “Transition services” defined.

388.134 “Traumatic brain injury” defined.

388.1345 “Travel training” defined.

388.135 “Unit” defined.

388.141 “Visual impairment” defined.

388.145 Educational programs for pupils with disabilities provided by public agency: Compliance with chapter and federal laws and regulations.

Administration of Programs for Pupils With Disabilities and Gifted and Talented Pupils

388.150 Maximum number of cases per teacher in unit; maximum size of class; exceptions.

388.165 Required licensing of teachers; exception.

388.171 Employment, preparation and training of qualified personnel to provide services to pupils with disabilities.

388.180 Length of school day.

388.191 Biological or adoptive parent or person identified in judicial decree or order deemed to be parent of pupil under certain circumstances.

388.195 Transfer of rights to pupil who attains age of majority; required notice to parent and pupil; rights remain with or transfer to guardian if pupil adjudicated incompetent.

388.197 Application by parent to represent educational interests of pupil who attains age of majority if pupil has significant cognitive impairment; filing of state complaint; rights remain with parent pending final decision of Department.

388.215 Measures to identify, locate, evaluate and serve pupils with disabilities.

388.217 Provision of instructional materials in accessible format to pupil with disability; temporary accommodations.

388.218 Request to determine whether provider of special education is in compliance with state and federal laws regarding pupils with disabilities; considerations for determining good cause to conduct inspection of provider; notice; construction of section.

388.219 Provision of services to pupils with disabilities who are homeschooled or enrolled by their parents in private schools.

388.225 Prohibition on requiring medication of pupil; consulting or sharing certain observations with parent.

388.245 Restrictions on placement of pupil with disability; continuum of alternative placements; annual determination of placement of pupil; placement in least restrictive environment.

388.255 Basis for change in placement of pupil with disability.

388.261 Transmittal of education records of pupil with disability upon enrollment in different school or public agency.

388.263 Provision of comparable services to pupil with disability who transfers to another school district or public agency or transfers from another state.

388.265 Suspension, expulsion or exclusion of pupil with disability; additional protections for certain pupils with disabilities.

388.275 Development of interim individualized educational program.

388.281 Development, implementation, review and revision of individualized educational program.

388.282 Placement of pupil with disability in private school or facility.

388.283 Appointment of surrogate parent for pupil with disability; requirements of surrogate parent.

388.284 Individualized educational program: Contents; considerations when developing.

388.2855 Individualized program of education for pupil with disability enrolled in public high school.

388.287 Inspection and review of education records of pupil; maintenance of records of certain persons given access; restriction on fee.

388.288 Amendment of education records; hearing.

388.289 Confidentiality of personally identifiable information; exception.

388.290 Required facilities and space.

388.292 Public notice of major project to identify, locate or evaluate pupils or educational data; contents of notice.

388.294 Monitoring of units and programs.

388.296 Reports to Department concerning programs and units.

388.297 Report to Department regarding caseloads of physical therapists and occupational therapists employed by or contracted with a public agency to provide services to pupils with disabilities; posting on Internet website.

388.300 Circumstances in which informed parental consent required; withdrawal of consent; exception; prior written notice to parents of proposed or refused action; provision of statement of parental rights; electronic notice.

388.302 Participation by parent in certain meetings regarding pupil with disability.

388.305 Resolution of dispute by mediation; qualifications and list of mediators; payment of costs; enforceability of mediation agreement.

388.306 Due process complaint.

388.307 Resolution meeting; exception; enforceability of agreement.

388.308 Expedited hearing.

388.310 Resolution of dispute by hearing; payment of expenses; qualifications and list of hearing officers; final decision; request for recusal of hearing officer.

388.315 Appeal from decision of hearing officer; transmittal and public availability of findings of fact and decision.

388.318 State complaints to Department; final administrative decision.

388.319 Contingency Account for Special Education Services: Eligibility of school district or charter school for reimbursement of certain expenses for special education services.

388.323 Contingency Account for Special Education Services: Application for reimbursement of certain expenses; approval or denial of application; decision not subject to review.

Determination of Eligibility for Placement of Pupils With Disabilities and Gifted and Talented Pupils

388.325 Provision of targeted scientific, research-based intervention for pupil with academic or behavioral difficulty; intervention plan; notice to parents concerning right to request evaluation to determine eligibility for special education.

388.330 Credentials required to administer or interpret assessment.

388.335 Tests and devices for assessment.

388.336 Review of evaluation data; determination of need for additional data.

388.337 Deadlines for conducting initial evaluations; request for extension; exception.

388.340 Determination of eligibility of pupil and appropriate individualized educational program; termination of eligibility; written report of eligibility team; minority report.

388.345 Assessment of cognitive abilities.

388.350 Assessment of social and emotional condition; interpretation of assessment.

388.360 Assessment of adaptive skills.

388.365 Assessment of health.

388.370 Assessment of speech, language or other communication skills.

388.375 Assessment of academic achievement; interpretation of assessment.

388.380 Assessment of performance in current educational setting; interpretation of assessment.

388.385 Assessment of evidence of intervention.

388.386 Assessment of functional behavior; informed parental consent.

388.387 Eligibility of pupil with autism spectrum disorder.

388.390 Eligibility of pupil with hearing impairment.

388.395 Eligibility of pupil with visual impairment.

388.400 Eligibility of pupil with orthopedic impairment.

388.402 Eligibility of pupil with health impairment other than orthopedic impairment.

388.405 Eligibility of pupil with speech and language impairment.

388.407 Eligibility of pupil with traumatic brain injury.

388.410 Eligibility of pupil with intellectual disability.

388.415 Eligibility of pupil with emotional disturbance.

388.420 Eligibility of pupil with specific learning disabilities; determination of severe discrepancy between achievement and intellectual ability.

388.425 Eligibility of pupil with multiple impairments.

388.427 Eligibility of pupil with deaf-blindness.

388.430 Identification of certain pupils with developmental delays; termination of services.

388.435 Eligibility of pupil who is gifted and talented.

388.440 Periodic reevaluation of pupil; written report of eligibility team.

388.450 Independent educational evaluation of pupil.

Program for Persons With Disabilities With Unique Needs

388.460 Definitions.

388.462 Psychological and educational evaluation of persons with disabilities.

388.464 Individualized educational programs: Preparation; purpose; review or revision.

388.466 Determination by administrative staff; application to board of trustees.

388.468 Submission of documents by board of trustees to Superintendent of Public Instruction.

388.470 Receipt of application; Superintendent of Public Instruction authorized to request further evaluation.

388.472 Confidentiality of records by Department of Education.

388.474 Rejection of application.

388.476 Approval of application; selection of educational program.

388.478 Procedure when appropriate educational program not readily available.

388.480 Transportation expenses.

388.482 Annual assessment and report of progress; visit by staff member; license of residence or school required.

388.484 Proposal of school district to return person with disability to school district; federal money for proposal; restriction on use of money in subsequent years.

388.486 Change of address, telephone number or marital status.

388.488 Continuation of benefits: Annual certification and notification by superintendent of school district; determination by Superintendent of Public Instruction; notice of ineligibility.

Alternative Programs for Pupils at Risk of Dropping Out of School

388.500 “Alternative program” defined.

388.510 General requirements; effective period.

388.520 Plan to provide for independent study.

Policy for the Instruction to Teach English to Pupils Who are English Learners

388.525 “A policy for the instruction to teach English to pupils who are English learners” defined.

388.530 Required actions of board of trustees in developing policy.

388.535 Contents and requirements of policy.

388.540 Identification, assessment and reassessment of pupils.

388.545 Requirements of provisions relating to human resources decisions and professional development.

388.550 Curriculum; models of instruction and methods of delivering instruction.

388.555 Parents and legal guardians: Opportunities for participation; provision of notice and certain information.

Instruction of Certain Pupils Whose Primary Language Is Not English

388.600 Definitions.

388.605 “Bilingual program of instruction” defined.

388.610 “English learner” defined.

388.615 “Program of instruction that teaches English language acquisition” defined.

388.630 Assessment of pupil’s proficiency in his or her primary language.

388.635 Assessment and identification of proficiency in English and primary language of pupils with disabilities.

388.640 Programs of instruction: Availability; notice of eligibility; consent for participation; standards.

388.645 Periodic reassessment of pupils; limitations on reidentification.

388.650 Periodic reassessment of pupils with disabilities; use of alternative procedures for reassessment.

388.655 Waiver from certain provisions.

INSTRUCTION IN SUBJECT AREA OF READING IN KINDERGARTEN AND ELEMENTARY SCHOOLS

388.660 Approved assessments for assessing pupil’s proficiency in subject area of reading.

388.662 Required training or professional development for learning strategist.

388.664 Required professional development for teachers employed to teach kindergarten or grade 1, 2, 3 or 4.

388.666 Duties of learning strategist.

PROGRAMS OF EDUCATION FOR INCARCERATED PERSONS

388.670 Definitions. [Replaced in revision by NAC 388H.010.]

388.672 “Incarcerated persons” defined. [Replaced in revision by NAC 388H.020.]

388.674 “Program of education” defined. [Replaced in revision by NAC 388H.030.]

388.676 Establishment of Statewide Program; general requirements for and eligibility to participate in program. [Replaced in revision by NAC 388H.040.]

388.678 Transfer of incarcerated person to another facility or institution within State; credit for successful completion of course. [Replaced in revision by NAC 388H.050.]

388.680 Duties of Superintendent of Public Instruction when interagency panel is required to be convened. [Replaced in revision by NAC 388H.060.]

EDUCATIONAL TECHNOLOGY

General Provisions

388.700 Definitions.

388.710 “Commission” defined.

388.720 “Department” defined.

388.730 “Trust Fund” defined.

Grants of Money From Trust Fund

388.740 Submission of applications.

388.750 Review of applications; notice of approval or denial; distribution of grant.

388.760 Submission and contents of written report.

388.770 Accounting for and use of money.

388.780 Prohibited uses of money.

DISTANCE EDUCATION

388.800 Definitions.

388.805 “Department” defined.

388.810 “Provider of a course of distance education” defined.

388.815 “Provider of a program of distance education” defined.

388.820 List of approved courses: Preparation and publication; submission of application for inclusion on list.

388.825 Form and contents of application for inclusion on list of approved courses; approval or denial of application; renewal of application; modification of course.

388.830 Submission and review of application for program; approval or denial of program; period of validity; renewal of application; modification of program; enrollment of pupils in program.

388.835 License requirements for teacher.

388.840 Responsibility for certain costs.

388.845 Award of credit earned.

388.850 Written agreement with board of trustees of school district.

388.855 Written agreement with governing body of charter school.

388.860 Revocation of approval for course or program: Grounds; procedure; effect.

PROVISION OF SAFE AND RESPECTFUL LEARNING ENVIRONMENT

General Provisions

388.875 Governing body of each school required to develop and carry out plan to ensure certain persons receive training in accordance with policy to provide safe and respectful learning environment; provision of certain laws, policies and plans to certain persons.

388.880 Persons with diverse gender identities or expressions: School or school district required to address rights and needs; adoption of policy; individual plan for pupil; list of resources provided by Department.

388.885 Compliance with regulatory provisions relating to safe and respectful learning environment by private school authorized.

Reporting, Investigation and Adjudication of Violations of Prohibition of Bullying and Cyber-Bullying

388.890 Reporting of information regarding bullying or cyber-bullying by pupils; actions of administrator or designee when ensuring safety and well-being of reported victim.

388.895 Initial notification to parents or guardians of pupils; maintenance of record regarding notification.

388.900 Requirements of investigation of report; documentation of interviews conducted as part of investigation; deadline for completion of investigation.

388.905 Requirements of written report if violation found to have occurred; administrator or designee to develop and carry out plan to support well-being of victim and aggressor; follow-up with victim and aggressor.

388.910 Required actions by administrator or designee upon completion of written report of investigation; adoption of policy by governing body of school that prescribes procedures to appeal outcome of investigation.

388.915 Complaint concerning outcome of appeal, violation of provisions of law or criminal conduct by staff member; preliminary report concerning whether to conduct further investigation; final report when further investigation is conducted; Department authorized to request school district or charter school to prepare plan of corrective action; employee subject to certain disciplinary action prohibited from administrative appeal of such action.

388.920 Annual report of accountability to exclude personally identifiable information of pupil involved in reported violation; certain persons prohibited from interfering with reporting of statistics concerning violations.

SafeVoice Program

388.921 “Program” defined.

388.922 Circumstances under which person who reports information to Program deemed to have elected not to remain anonymous.

388.923 Information reported to Program subject to applicable state and federal laws relating to privacy of pupil information or health information.

388.924 Duties of support center and team regarding information reported to Program; confidentiality of forwarded information.

Miscellaneous Provisions

388.925 Quarterly determination of amount of money in Bullying Prevention Account; required notification to school districts when grants from Account available; eligibility for grant; evaluation and approval of grants.

SPECIAL INSTRUCTIONAL SERVICES AND PROGRAMS

General Provisions

NAC 388.001 Definitions. (NRS 385.080, 388.419, 388.5267) As used in NAC 388.001 to 388.450, inclusive, unless the context otherwise requires, the words and terms defined in NAC 388.005 to 388.141, inclusive, have the meanings ascribed to them in those sections.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 11-23-93; R035-99, 11-3-99; R085-99, 2-16-2000; R071-05, 2-23-2006; R058-07, 10-31-2007; R064-08, 9-18-2008; R017-18, 1-30-2019)

NAC 388.005 “Academic achievement” defined. (NRS 385.080) Except as otherwise provided in this section, “academic achievement” means the possession of basic reading skills and skills relating to oral expression, listening comprehension, written expression, reading fluency, reading comprehension, mathematics calculation and mathematics reasoning. In the case of a pupil under the age of 6, the term means academic readiness and the mastery of language concepts.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 11-23-93; R058-07, 10-31-2007)

NAC 388.015 “Adaptive skills” defined. (NRS 385.080) “Adaptive skills” include communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure and work.

(Added to NAC by Bd. of Education, eff. 7-14-88; A by R085-99, 2-16-2000)

NAC 388.017 “Agency with personally identifiable information” defined. (NRS 385.080, 388.419) “Agency with personally identifiable information” has the meaning ascribed to the term “participating agency” in 34 C.F.R. § 300.611.

(Added to NAC by Bd. of Education by R017-18, eff. 1-30-2019)

NAC 388.023 “Assistive technology device” defined. (NRS 385.080) “Assistive technology device” has the meaning ascribed to it in 34 C.F.R. § 300.5. The term does not include a medical device that is surgically implanted or the replacement of such a device.

(Added to NAC by Bd. of Education, eff. 11-23-93; A by R071-05, 2-23-2006)

NAC 388.024 “Assistive technology service” defined. (NRS 385.080) “Assistive technology service” has the meaning ascribed to it in 34 C.F.R. § 300.6.

(Added to NAC by Bd. of Education, eff. 11-23-93)

NAC 388.028 “Autism spectrum disorder” defined. (NRS 385.080)

1. “Autism spectrum disorder” means a condition which:

(a) Significantly affects the verbal and nonverbal communication and social skills of a person and is often characterized by repetitive activities and stereotyped movements, resistance to changes in environment or daily routine and responding to sensory experiences in an unusual manner;

(b) Is usually apparent before the age of 3 years; and

(c) Adversely affects the educational performance of a pupil causing significant delays or irregular patterns in learning, or both.

Ê The term includes, without limitation, a group of developmental disorders such as Asperger’s disorder, atypical autism, pervasive developmental disorder and other disorders that share the characteristics described in this subsection.

2. The term does not apply to a pupil if the pupil’s educational performance is adversely affected primarily because the pupil has an emotional disturbance.

(Added to NAC by Bd. of Education, eff. 11-23-93; A by R085-99, 2-16-2000; R071-05, 2-23-2006; R058-07, 10-31-2007; R017-18, 1-30-2019)

NAC 388.0285 “Business day” defined. (NRS 385.080, 388.419) “Business day” has the meaning ascribed to it in 34 C.F.R. § 300.11(b).

(Added to NAC by Bd. of Education by R017-18, eff. 1-30-2019)

NAC 388.029 “Classroom-based assessment” defined. (NRS 385.080) “Classroom-based assessment” means an assessment of the academic work of a pupil produced in a classroom, including, without limitation, samples of the pupil’s work, pupil portfolios, progress reports, reports of teachers, curriculum-based measurements, locally normed instruments and tests taken by the pupil which were created by the pupil’s teacher.

(Added to NAC by Bd. of Education by R085-99, eff. 2-16-2000)

NAC 388.031 “Cognitive abilities” defined. (NRS 385.080) “Cognitive abilities” means those abilities involving the processes of thinking, reasoning and problem solving.

(Added to NAC by Bd. of Education, eff. 7-14-88)

NAC 388.033 “Collaborative or consulting services” defined. (NRS 385.080) “Collaborative or consulting services” means the assistance provided by special education personnel or other professionals to regular classroom teachers regarding the assessment, teaching and evaluation of a pupil with a disability in a regular educational environment.

(Added to NAC by Bd. of Education, eff. 11-23-93; A by R085-99, 2-16-2000)

NAC 388.0335 “Communication mode” defined. (NRS 385.080, 388.419) “Communication mode” has the meaning ascribed to it in NRS 388.417.

(Added to NAC by Bd. of Education by R017-18, eff. 1-30-2019)

NAC 388.034 “Day” defined. (NRS 385.080) “Day” means a calendar day.

(Added to NAC by Bd. of Education by R085-99, eff. 2-16-2000)

NAC 388.0345 “Deaf-blindness” defined. (NRS 385.080) “Deaf-blindness” means concomitant hearing and visual impairments, the combination of which causes severe communication and other developmental and educational needs that cannot be accommodated in special education programs that are solely for pupils who are deaf or pupils who are blind.

(Added to NAC by Bd. of Education by R085-99, eff. 2-16-2000)

NAC 388.035 “Department” defined. (NRS 385.080) “Department” means the Department of Education.

(Added to NAC by Bd. of Education, eff. 7-14-88)

NAC 388.041 “Developmental functioning” defined. (NRS 385.080) “Developmental functioning” means cognitive abilities, gross and fine motor skills, self-help, social and emotional condition, and skill in the use of receptive and expressive language.

(Added to NAC by Bd. of Education, eff. 7-14-88)

NAC 388.0415 “Dyslexia” defined. (NRS 385.080, 388.419) “Dyslexia” has the meaning ascribed to it in NRS 388.417.

(Added to NAC by Bd. of Education by R017-18, eff. 1-30-2019)

NAC 388.0417 “Emotional disturbance” defined. (NRS 385.080) “Emotional disturbance” means a severe emotional disorder that:

1. Is exhibited by a person for at least 3 months;

2. Adversely affects academic performance; and

3. Includes one or more of the following:

(a) An inability to learn which is not caused by an intellectual, sensory or health factor;

(b) An inability to engage in or to maintain interpersonal relationships with peers and teachers;

(d) A general and pervasive mood of unhappiness or depression;

(e) A physical symptom associated with a personal or academic problem; or

(f) The expression of fears regarding personal or academic problems.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 9-13-91; 11-23-93; R017-18, 1-30-2019) — (Substituted in revision for NAC 388.105)

NAC 388.042 “General education curriculum” defined. (NRS 385.080) “General education curriculum” means the goals and objectives defined by the public agency and the corresponding materials, equipment and instructional strategies to accomplish the educational functions of the public agency for all enrolled pupils.

(Added to NAC by Bd. of Education by R085-99, eff. 2-16-2000; A by R071-05, 2-23-2006)

NAC 388.043 “Gifted and talented” defined. (NRS 385.080) “Gifted and talented” means a person who possesses or demonstrates outstanding ability in one or more of the following:

1. General intelligence;

2. Academic aptitude in a specific area;

3. Creative thinking;

4. Productive thinking;

5. Leadership;

6. The visual arts; or

7. The performing arts.

(Added to NAC by Bd. of Education, eff. 9-13-91)

NAC 388.045 “Health” defined. (NRS 385.080) “Health” means the general physical condition of a person.

(Added to NAC by Bd. of Education, eff. 7-14-88)

NAC 388.046 “Health impairment” defined. (NRS 385.080) “Health impairment” means an impairment that limits the strength, vitality or alertness of the pupil, including, without limitation, a heightened alertness to environmental stimuli which results in limited alertness with respect to the educational environment and which:

1. Is caused by chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, childhood disintegrative disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, Rett’s disorder, sickle-cell anemia and Tourette syndrome; and

2. Adversely affects the educational performance of the pupil.

(Added to NAC by Bd. of Education by R085-99, eff. 2-16-2000; A by R058-07, 10-31-2007)

NAC 388.047 “Hearing impairment” defined. (NRS 385.080) “Hearing impairment” means an impairment of the hearing mechanism which affects sound integration, prevents or delays the normal development of speech and language and adversely affects the educational performance of a pupil.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 11-23-93; R017-18, 1-30-2019) — (Substituted in revision for NAC 388.025)

NAC 388.049 “Homeless youth” defined. (NRS 385.080) “Homeless youth” has the meaning ascribed to it in 42 U.S.C. § 11434a(2).

(Added to NAC by Bd. of Education by R071-05, eff. 2-23-2006)

NAC 388.0495 “Intellectual disability” defined. (NRS 385.080) “Intellectual disability” means a condition that:

1. Is characterized by intellectual functioning at a level that is significantly below average, and which exists concurrently with related limitations in two or more of the following adaptive skill areas:

(a) Communication skills;

(b) Self-care;

(d) Social skills;

(e) Use of the community;

(f) Self-direction;

(g) Health and safety;

(h) Functional academics;

(i) Leisure; and

(j) Work;

2. Manifests before the age of 18 years; and

3. Adversely affects the educational performance of a pupil.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 11-23-93; R085-99, 2-16-2000; R017-18, 1-30-2019) — (Substituted in revision for NAC 388.055)

NAC 388.052 “Intervention” defined. (NRS 385.080) “Intervention” means a strategy, developed on the basis of individual need, designed to have a remediate effect upon any academic or behavioral difficulties of a pupil. The term does not include disciplinary procedures applied to a group of pupils unless, giving consideration to the individual needs of a pupil, such procedures are demonstrably more appropriate than other strategies.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 11-23-93; R058-07, 10-31-2007) — (Substituted in revision for NAC 388.085)

NAC 388.054 “Local educational agency” defined. (NRS 385.080, 388.419) “Local educational agency” has the meaning ascribed to it in 20 U.S.C. § 7801(30)(A).

(Added to NAC by Bd. of Education by R017-18, eff. 1-30-2019)

NAC 388.055 “Mental retardation” defined. (NRS 385.080) [Replaced in revision by NAC 388.0495.]

NAC 388.065 “Multiple impairments” defined. (NRS 385.080) “Multiple impairments” means the occurrence of an intellectual disability with another disability, the combination of which causes severe educational needs for the pupil.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 11-23-93; R085-99, 2-16-2000; R017-18, 1-30-2019)

NAC 388.067 “Orthopedic impairment” defined. (NRS 385.080) “Orthopedic impairment” means a severe impairment which adversely affects the educational performance of a pupil and which results from:

1. A congenital anomaly, including, without limitation, clubfoot and absence of a member;

2. A disease, including, without limitation, bone tuberculosis and poliomyelitis; or

3. Any other cause, including, without limitation, cerebral palsy, an amputation and a fracture or burn causing a contracture.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 11-23-93; R085-99, 2-16-2000; R071-05, 2-23-2006)

NAC 388.071 “Parent” defined. (NRS 385.080) “Parent” means:

1. A biological or adoptive parent;

2. A guardian generally authorized to act as a parent of the pupil or authorized to make educational decisions for the pupil, but not the State if the pupil is a ward of the State;

3. A person acting in the place of a biological or adoptive parent, including, without limitation, a grandparent, stepparent or other relative with whom the pupil resides or a person who is legally responsible for the pupil’s welfare;

4. A surrogate parent appointed pursuant to NAC 388.283;

5. A foster parent, if the foster parent:

(a) Has an ongoing parental relationship with the pupil;

(b) Is willing to make the educational decisions required of parents pursuant to Part B of the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1411 et seq., and the regulations adopted pursuant thereto; and

6. A person deemed to be a parent of the pupil pursuant to NAC 388.191.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 11-23-93; R085-99, 2-16-2000; R071-05, 2-23-2006; R058-07, 10-31-2007; R017-18, 1-30-2019)

NAC 388.073 “Participating agency” defined. (NRS 385.080) “Participating agency” means any institution or entity, other than a public agency, that is likely to be responsible for providing transition services to a pupil or to pay for such services.

(Added to NAC by Bd. of Education, eff. 11-23-93; A by R085-99, 2-16-2000; R017-18, 1-30-2019)

NAC 388.074 “Peer-reviewed research” defined. (NRS 385.080) “Peer-reviewed research” means research relating to education that is reviewed by qualified and independent persons to ensure that the quality of the information meets the standards of the field of education before the research is published.

(Added to NAC by Bd. of Education by R058-07, eff. 10-31-2007)

NAC 388.075 “Performance in the current educational setting” defined. (NRS 385.080) “Performance in the current educational setting” means the behavioral and academic functioning of a pupil in the environment in which the majority of the pupil’s education occurs.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 11-23-93; R085-99, 2-16-2000)

NAC 388.076 “Personally identifiable information” defined. (NRS 385.080, 388.419) “Personally identifiable information” has the meaning ascribed to it in 34 C.F.R. § 99.3.

(Added to NAC by Bd. of Education by R017-18, eff. 1-30-2019)

NAC 388.077 “Positive behavioral strategies, supports and interventions” defined. (NRS 385.080) “Positive behavioral strategies, supports and interventions” means a process for integrating behavior analysis with person-center planning to design individualized interventions for pupils which focus on promoting positive changes in behavior and enhancing the overall quality of life for pupils in schools, homes and community environments without the use of negative or aversive means.

(Added to NAC by Bd. of Education by R085-99, eff. 2-16-2000; A by R017-18, 1-30-2019)

NAC 388.091 “Program of instruction” defined. (NRS 385.080) “Program of instruction” means a program of educational services provided to a pupil.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 11-23-93; R017-18, 1-30-2019)

NAC 388.092 “Public agency” defined. (NRS 385.080) “Public agency” has the meaning ascribed to it in 34 C.F.R. § 300.33.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 11-23-93; R017-18, 1-30-2019) — (Substituted in revision for NAC 388.021)

NAC 388.093 “Pupil with a disability” defined. (NRS 385.080) “Pupil with a disability” has the meaning ascribed to it in NRS 388.417, but the term does not include a pupil who is determined to be eligible for special services and programs of instruction pursuant to NAC 388.435 unless the pupil is also determined to be eligible for special education and related services pursuant to NAC 388.387 to 388.430, inclusive.

(Added to NAC by Bd. of Education, eff. 11-23-93; A by R017-18, 1-30-2019)

NAC 388.095 “Regular classroom teacher” defined. (NRS 385.080) “Regular classroom teacher” means a teacher who knows the developmental and curricular needs of the pupil and who is licensed to teach in the general education program.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 11-23-93; R085-99, 2-16-2000)

NAC 388.101 “Related services” defined. (NRS 385.080) “Related services” has the meaning ascribed to it in 34 C.F.R. § 300.34. The term does not include a medical device that is surgically implanted, the optimization of the functioning of such a device, the maintenance of such a device or the replacement of such a device.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 11-23-93; R085-99, 2-16-2000; R071-05, 2-23-2006; R058-07, 10-31-2007)

NAC 388.102 “Response to scientific, research-based intervention” defined. (NRS 385.080) “Response to scientific, research-based intervention” means a collaborative process which assesses a pupil’s response to scientific, research-based intervention that is matched to the pupil’s needs and that systematically monitors the pupil’s level of performance and rate of learning over time for the purpose of making data-based decisions concerning the pupil’s need for increasingly intensified services.

(Added to NAC by Bd. of Education by R058-07, eff. 10-31-2007)

NAC 388.1025 “School day” defined. (NRS 385.080, 388.419) “School day” has the meaning ascribed to it in 34 C.F.R. § 300.11(c).

(Added to NAC by Bd. of Education by R017-18, eff. 1-30-2019)

NAC 388.103 “Scientific, research-based intervention” defined. (NRS 385.080) “Scientific, research-based intervention” means the modification of the classroom environment, curriculum or delivery of instruction in a regular educational environment, which is:

1. Based upon an examination of the characteristics of the pupil as a learner, the instruction being provided and the curricular tasks to be accomplished and which is targeted toward improving the level of performance and rate of learning of the pupil; and

2. Demonstrated through research and practice to have a positive impact on the academic achievement or behavior of the pupil.

(Added to NAC by Bd. of Education by R058-07, eff. 10-31-2007; A by R017-18, 1-30-2019)

NAC 388.105 “Serious emotional disturbance” defined. (NRS 385.080) [Replaced in revision by NAC 388.0417.]

NAC 388.111 “Social and emotional condition” defined. (NRS 385.080) “Social and emotional condition” means the present thoughts, feelings and interactive behavior of a person.

(Added to NAC by Bd. of Education, eff. 7-14-88)

NAC 388.115 “Special education” defined. (NRS 385.080) “Special education” means specially designed instruction, as defined in 34 C.F.R. § 300.39, which is designed to meet the unique needs of a pupil with a disability at no cost to the parent, including, without limitation, instruction conducted in a classroom, at the pupil’s home or in a hospital, institution or other setting. The term includes instruction in physical education provided pursuant to 34 C.F.R. § 300.108 and includes speech and language services, travel training and vocational education if these services are specially designed instruction, as defined in 34 C.F.R. § 300.39, to meet the unique needs of the pupil.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 11-23-93; R085-99, 2-16-2000; R058-07, 10-31-2007; R017-18, 1-30-2019)

NAC 388.117 “Specific learning disability” defined. (NRS 385.080) “Specific learning disability” means a disorder in one or more of the basic psychological processes involved in understanding or using spoken or written language which is not primarily the result of a visual, hearing or motor impairment, an intellectual disability, an emotional disturbance, or an environmental, cultural or economic disadvantage. The disorder may manifest itself in an imperfect ability to listen, think, speak, read, write, spell or perform mathematical calculations. The disorder includes, without limitation, such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia and developmental aphasia.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 11-23-93; R085-99, 2-16-2000; R071-05, 2-23-2006; R017-18, 1-30-2019)

NAC 388.121 “Speech and language” defined. (NRS 385.080) “Speech and language” means skills relating to articulation, phonology, receptive language, expressive language, syntax, semantics, morphology, fluency and the use of the voice.

(Added to NAC by Bd. of Education, eff. 7-14-88)

NAC 388.125 “Speech and language impairment” defined. (NRS 385.080) “Speech and language impairment” means a disorder relating to language, articulation, fluency or the use of the voice which adversely affects the educational performance of a pupil and which:

1. Is outside the range of acceptable variation in a given environment;

2. Is inconsistent with the chronological or mental age of the person with the disability; or

3. Affects the emotional, social or educational adjustment of the person with the disability.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 11-23-93; R017-18, 1-30-2019)

NAC 388.131 “Superintendent” defined. (NRS 385.080) “Superintendent” means the Superintendent of Public Instruction.

(Added to NAC by Bd. of Education, eff. 7-14-88)

NAC 388.132 “Supplementary aids and services” defined. (NRS 385.080) “Supplementary aids and services” means aids, services and other supports that are provided in regular educational classes, other education-related settings, extracurricular settings and nonacademic settings to enable pupils with disabilities to be educated with pupils who are not disabled to the maximum extent appropriate.

(Added to NAC by Bd. of Education by R085-99, eff. 2-16-2000; A by R058-07, 10-31-2007)

NAC 388.133 “Transition services” defined. (NRS 385.080) “Transition services” means a coordinated set of activities which:

1. Is designed within a process which is results-oriented and which focuses on improving the academic and functional achievement of the pupil with a disability to facilitate the pupil’s movement from school to postschool activities, including, without limitation, postsecondary education, vocational training, integrated employment, continuing and adult education, adult services, independent living and community participation;

2. Is based on the needs of the pupil, taking into account the pupil’s preferences and interests;

3. If the pupil is 14 years of age or older, includes the courses of study of the pupil;

4. If the pupil is 16 years of age or older, or the pupil will attain 16 years of age during the period in which the individualized educational program will be in effect, includes, without limitation:

(a) Instruction;

(b) Related services;

(d) The development of employment and other objectives for living as an adult after the completion of school, including, without limitation, the development of work skills; and

(e) If appropriate, the acquisition of daily living skills and functional vocational evaluation;

5. Includes special education or related services if required to assist a pupil with a disability to benefit from special education; and

6. Is carried out in accordance with the provisions of the pupil’s individualized educational program, if applicable.

(Added to NAC by Bd. of Education, eff. 11-23-93; A by R085-99, 2-16-2000; R071-05, 2-23-2006; R058-07, 10-31-2007; R017-18, 1-30-2019)

NAC 388.134 “Traumatic brain injury” defined. (NRS 385.080) “Traumatic brain injury” means an injury to the brain caused by an external force that results in the total or partial functional disability or psychosocial impairment of a person, or both. Except as otherwise provided in this section, the term applies to any injury to the brain which adversely affects educational performance, including, without limitation, injuries affecting the:

1. Cognitive abilities;

2. Speech;

3. Language;

4. Information processing;

5. Memory;

6. Attention;

7. Reasoning;

8. Abstract thinking;

9. Judgment;

10. Problem-solving abilities;

11. Sensory, perceptual and motor skill abilities;

12. Psychosocial behavior; and

13. Physical functions,

Ê of a person. The term does not include injuries to the brain that are congenital or degenerative or which are induced by trauma during birth.

(Added to NAC by Bd. of Education, eff. 11-23-93)

NAC 388.1345 “Travel training” defined. (NRS 385.080) “Travel training” means instruction that:

1. Is provided to pupils with significant cognitive disabilities and to any other pupils with disabilities who require this instruction; and

2. Enables the pupils to:

(a) Develop an awareness of the environment in which the pupils live; and

(b) Learn the skills necessary to move effectively and safely from place to place within an environment, including, without limitation, in school, in the home, at work and in the community.

(Added to NAC by Bd. of Education by R085-99, eff. 2-16-2000; A by R017-18, 1-30-2019)

NAC 388.135 “Unit” defined. (NRS 385.080) “Unit” means a special education program unit as defined in subsection 3 of NRS 387.1211.

(Added to NAC by Bd. of Education, eff. 7-14-88)

NAC 388.141 “Visual impairment” defined. (NRS 385.080) “Visual impairment” means an impairment in vision which, despite correction, adversely affects or will adversely affect the ability of a pupil to benefit from or participate in an educational program without the assistance of special education.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 11-23-93; R017-18, 1-30-2019)

NAC 388.145 Educational programs for pupils with disabilities provided by public agency: Compliance with chapter and federal laws and regulations. (NRS 385.080, 388.419) Any educational program for pupils with disabilities provided by a public agency in this State, including, without limitation, a program of special education in a private school that provides special education to a pupil who is placed in the private school by a public agency, must be administered in accordance with the provisions of this chapter and all applicable federal laws and regulations.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 11-23-93; R085-99, 2-16-2000; R058-07, 10-31-2007; R017-18, 1-30-2019)

Administration of Programs for Pupils With Disabilities and Gifted and Talented Pupils

NAC 388.150 Maximum number of cases per teacher in unit; maximum size of class; exceptions. (NRS 385.080, 388.419, 388.5267)

1. Except as otherwise provided in this section, the maximum number of cases per teacher in a unit for:

(a) School-age pupils who are placed in programs for mild to moderate disabilities, who receive instruction from a generalist and who receive special education services through a consultative method, resources method or any combination of methods of instruction is:

(1) Twenty-two for pupils with specific learning disabilities.

(2) Twenty-two for pupils with emotional disturbance.

(3) Twenty-two for pupils with mild intellectual disabilities.

(b) School-age pupils who are placed in programs for moderate to severe disabilities, who receive instruction from a specialist and who receive special education services primarily in a self-contained classroom is:

(1) Twenty for pupils with specific learning disabilities.

(2) Fifteen for pupils with emotional disturbance.

(3) Twenty for pupils with moderate intellectual disabilities.

(4) Twelve for pupils with severe to profound intellectual disabilities.

(1) Twenty for pupils with hearing impairments.

(2) Fifteen for pupils with multiple impairments.

(3) Four for pupils with deaf-blindness.

(4) Twenty for pupils with orthopedic impairments and health impairments.

(5) Ten for pupils with orthopedic impairments and health impairments receiving special education services in a home or hospital.

(6) Fifteen for pupils with orthopedic impairments and health impairments receiving special education services through the teleteaching method of instruction.

(7) Fifty for pupils with speech and language impairments receiving speech and language therapy services.

(8) Twelve for pupils with speech and language impairments receiving special education services in a self-contained classroom.

(9) Sixteen for pupils with visual impairments.

(10) Fifteen for pupils with traumatic brain injury.

(11) Twelve for pupils with autism spectrum disorder.

(12) Sixty-five for pupils who are gifted and talented.

(d) Pupils under the age of 6 years who are placed in early childhood nonspecialized programs and who receive special education services in a center-based classroom, integrated setting or through a consultative method of instruction is 22.

2. Except as otherwise provided in this section, the maximum size of a class per instructional period for:

(a) School-age pupils who are placed in programs for mild to moderate disabilities, who receive instruction from a generalist and who receive special education services through a consultative method, a resources method or any combination of methods of instruction is:

(1) Twelve for pupils with specific learning disabilities.

(2) Twelve for pupils with emotional disturbance.

(3) Twelve for pupils with mild intellectual disabilities.

(1) Twelve for pupils with specific learning disabilities.

(2) Six for pupils with emotional disturbance.

(3) Ten for pupils with moderate intellectual disabilities.

(4) Six for pupils with severe to profound intellectual disabilities.

(1) Six for pupils with hearing impairments.

(2) Six for pupils with multiple impairments.

(3) Four for pupils with deaf-blindness.

(4) Six for pupils with orthopedic impairments and health impairments.

(5) Fifteen for pupils with orthopedic impairments and health impairments receiving special education services through a teleteaching method of instruction.

(6) Eight for pupils with speech and language impairments receiving special education services in a self-contained classroom.

(7) Six for pupils with visual impairments.

(8) Eight for pupils with traumatic brain injury.

(9) Six for pupils with autism spectrum disorder.

(10) Twenty for pupils who are gifted and talented.

(e) Pupils under the age of 6 years who are placed in early childhood specialized programs is 6.

3. In the case of a heterogeneous program, the maximum number of cases per teacher and the maximum size of the class is to be determined according to the area of disability represented by the majority of the pupils in the program.

4. The maximum number of cases per teacher in a unit may be increased by 10 percent, or at least one pupil, without the approval of the Department.

5. If a teacher’s aide is used in a unit, the maximum size of a class in the unit for:

(1) Sixteen for pupils with specific learning disabilities.

(2) Sixteen for pupils with emotional disturbance.

(3) Sixteen for pupils with mild intellectual disabilities.

(1) Sixteen for pupils with specific learning disabilities.

(2) Ten for pupils with emotional disturbance.

(3) Fourteen for pupils with moderate intellectual disabilities.

(4) Eight for pupils with severe to profound intellectual disabilities.

(1) Ten for pupils with hearing impairments.

(2) Ten for pupils with multiple impairments.

(3) Five for pupils with deaf-blindness.

(4) Ten for pupils with orthopedic impairments and health impairments.

(5) Nineteen for pupils with orthopedic impairments and health impairments receiving special education services in the home or at a hospital.

(6) Twelve for pupils with speech and language impairments receiving special education services in a self-contained classroom.

(7) Ten for pupils with visual impairments.

(8) Ten for pupils with traumatic brain injury.

(9) Eight for pupils with autism spectrum disorder.

(10) Twenty-four for pupils who are gifted and talented.

(e) Pupils under the age of 6 years who are placed in early childhood specialized programs is 8.

6. The maximum number of cases per teacher in each unit for a specific disability must not exceed the number prescribed pursuant to this section for the disability represented by the majority of pupils in the unit even if some or all of the pupils in the unit attend classes in a regular educational environment and the special education teacher only provides collaborative or consulting services regarding such pupils.

7. Exceptions to the maximum number of cases per teacher prescribed in this section may be made with the written approval of the Department. A request for an exception must be submitted to the Department within 30 days after the limit set forth in subsection 4 is exceeded.

[Dep’t of Education, eff. 12-15-77] — (NAC A by Bd. of Education, 2-7-83; 7-14-88; 9-13-91; 11-23-93; R027-00, 6-20-2000, eff. 7-1-2000; R199-03, 3-19-2004; R058-07, 10-31-2007; R017-18, 1-30-2019)

NAC 388.165 Required licensing of teachers; exception. (NRS 385.080, 388.419, 388.5267)

1. Except as otherwise provided in this section, a teacher:

(a) In a unit must be licensed in the area of special education, with an endorsement in the area of disability represented by the majority of the pupils in the unit.

(b) Of the gifted and talented must meet the requirements for licensure for teaching in a program for the gifted and talented.

2. An exception to the requirements of this section may be made with the written approval of the Department.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 9-13-91; 11-23-93)

NAC 388.171 Employment, preparation and training of qualified personnel to provide services to pupils with disabilities. (NRS 385.080, 388.419)

1. A public agency shall appropriately and adequately prepare and train all personnel employed by the public agency who assist in carrying out the provisions of this chapter and NRS 388.417 to 388.5243, inclusive, including, without limitation, special education teachers, personnel who provide related services and paraprofessionals, to ensure that the personnel have the content knowledge and skills necessary to serve pupils with disabilities.

2. A public agency shall take measurable steps to recruit, hire, train and retain personnel who meet the standards prescribed by 34 C.F.R. § 300.156(c) to provide special education and related services to pupils with disabilities.

3. A public agency shall ensure that each person employed as a special education teacher to teach at an elementary, middle, junior high or high school meets the standards prescribed by 34 C.F.R. § 300.156(c).

4. Notwithstanding a right of action that a parent or pupil may maintain pursuant to this chapter, NRS 388.417 to 388.5243, inclusive, or 20 U.S.C. §§ 1411 et seq., this section does not:

(a) Create a right of action on behalf of a pupil or group of pupils for the failure of an employee of a public agency to meet the standards prescribed by 34 C.F.R. § 300.156(c).

(b) Prevent a parent from filing a state complaint with the Superintendent pursuant to NAC 388.318 concerning the qualifications of personnel.

(Added to NAC by Bd. of Education by R058-07, eff. 10-31-2007; A by R017-18, 1-30-2019)

NAC 388.180 Length of school day. (NRS 385.080, 388.090) Except as otherwise provided by NAC 387.125, subsection 2 of NAC 387.131 and NAC 387.286, a school day in session for a unit must consist of the minimum daily periods established for the grade by subsection 1 of NAC 387.131.

[Dep’t of Education, eff. 12-15-77] — (NAC A by Bd. of Education, 2-7-83; 7-14-88; R043-04, 7-16-2004)

NAC 388.191 Biological or adoptive parent or person identified in judicial decree or order deemed to be parent of pupil under certain circumstances. (NRS 385.080, 388.419)

1. Except as otherwise provided in this section, when more than one person may act as the parent of a pupil, as defined in NAC 388.071, the biological or adoptive parent of the pupil shall, when attempting to act as the parent of the pupil for the purposes of NAC 388.001 to 388.450, inclusive, be deemed the parent of the pupil unless that person does not have the legal authority to make educational decisions for the pupil.

2. If a judicial decree or order identifies more than one person to act as the parent of a pupil or to make educational decisions for the pupil, the persons identified in the judicial decree or order shall be deemed the parents of the pupil for the purposes of NAC 388.001 to 388.450, inclusive.

(Added to NAC by Bd. of Education by R058-07, eff. 10-31-2007; A by R017-18, 1-30-2019)

NAC 388.195 Transfer of rights to pupil who attains age of majority; required notice to parent and pupil; rights remain with or transfer to guardian if pupil adjudicated incompetent. (NRS 385.080, 388.419, 388.457, 388.459)

1. Except as otherwise provided in this section and NAC 388.197 and NRS 388.457 and 388.459, any right accorded to a parent of a pupil with a disability pursuant to Part B of the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1411 et seq., and the regulations adopted pursuant thereto, transfers to the pupil when the pupil attains the age of 18 years. The school district or charter school in which the pupil is enrolled shall provide notice to the parent of the pupil and to the pupil of the transfer of rights pursuant to this section.

2. If a pupil with a disability attains the age of 18 years and the pupil is enrolled in a program of special education pursuant to NRS 388.417 to 388.5243, inclusive, the school district or charter school in which the pupil is enrolled shall provide any notice required pursuant to:

(a) Part B of the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1411 et seq., and the regulations adopted pursuant thereto; or

(b) NRS 388.417 to 388.5243, inclusive, and NAC 388.001 to 388.450, inclusive,

Ê to the parent and pupil with a disability, regardless of whether the parent is appointed to represent the educational interests of the pupil pursuant to NRS 388.459 and NAC 388.197 or the rights transfer to the pupil pursuant to subsection 1.

3. If a court of competent jurisdiction adjudicates a pupil with a disability incompetent and appoints a guardian for the pupil, all rights pursuant to Part B of the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1411 et seq., and the regulations adopted pursuant thereto, remain with or otherwise transfer to the guardian.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 11-23-93; R085-99, 2-16-2000; R064-08, 9-18-2008; R017-18, 1-30-2019)

NAC 388.197 Application by parent to represent educational interests of pupil who attains age of majority if pupil has significant cognitive impairment; filing of state complaint; rights remain with parent pending final decision of Department. (NRS 385.080, 388.419, 388.459)

1. Not less than 1 year before the date on which a pupil with a disability who has a significant cognitive impairment and who participates in the alternate assessment developed by the State attains the age of 18 years, the school district or charter school in which the pupil is enrolled shall provide notice to the parent and the pupil of the procedure by which the parent may submit an application to represent the educational interests of the pupil pursuant to subsection 2. The notice must include:

(a) A description of the purpose for the submission of an application to represent the educational interests of the pupil;

(b) An identification of the category of parents who are authorized to submit an application;

(d) The procedure for appealing a decision made on an application by a school district or charter school; and

(e) A copy of the application.

2. A parent of a pupil with a disability who has a significant cognitive impairment and who participates in the alternate assessment developed by the State may submit to the designated official of the school district or charter school in which the pupil is enrolled, on a form prescribed by the Department, an application to represent the educational interests of the pupil. Such an application must be submitted at least 90 days before the date on which the pupil attains the age of 18 years. The application must include a signed statement by the parent declaring that:

(a) The parent believes that the pupil does not have the ability to provide informed consent with respect to his or her own educational program;

(b) The pupil is at least 16 years of age;

(c) The pupil has a significant cognitive impairment and participates in the alternate assessment developed by the State; and

(d) The date on which the application is being submitted is not less than 90 days before the date on which the pupil attains the age of 18 years.

3. Within 30 days after an application is received pursuant to subsection 2, the school district or charter school shall:

(a) Review the application for completeness and accuracy; and

(b) Provide notice in writing to the parent and the pupil of the determination of the school district or charter school.

4. If a school district or charter school approves an application for a parent to represent the educational interests of a pupil with a disability, the parent shall continue to represent the educational interests of the pupil until:

(a) The pupil receives a standard high school diploma;

(b) The pupil is no longer enrolled in a program of special education pursuant to NRS 388.417 to 388.5243, inclusive; or

5. If a parent or a pupil with a disability disagrees with the decision made on an application by a school district or charter school submitted pursuant to subsection 2, the parent or the pupil may file a state complaint with the Superintendent pursuant to NAC 388.318. If the complaint is filed before the date on which the pupil attains the age of 18 years, any rights which would have otherwise transferred to the pupil in accordance with NAC 388.195 must remain with the parent pending a final decision on the complaint by the Department.

(Added to NAC by Bd. of Education by R064-08, eff. 9-18-2008; A by R089-18, 10-25-2018; R017-18, 1-30-2019)

NAC 388.215 Measures to identify, locate, evaluate and serve pupils with disabilities. (NRS 385.080, 388.419) Each public agency shall take measures pursuant to 34 C.F.R. § 300.111 to ensure that every pupil with a disability who resides within the school district is identified, located, evaluated and served in the manner appropriate to the unique needs of the pupil. These measures must include, without limitation:

1. The organization of a program for screening pupils within the jurisdiction of the public agency;

2. The posting or publication of public notices within the district concerning the program for screening and the availability of special education and related services for pupils with disabilities;

3. The establishment of procedures for the referral of pupils with disabilities to agencies of state and local government providing services for those pupils;

4. Communication with such agencies; and

5. The establishment of a system of records for the purpose of verifying:

(a) The implementation of the foregoing measures; and

(b) That each pupil identified as a pupil with a disability is receiving special education and related services appropriate to the pupil’s disability.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 11-23-93; R085-99, 2-16-2000; R058-07, 10-31-2007; R017-18, 1-30-2019)

NAC 388.217 Provision of instructional materials in accessible format to pupil with disability; temporary accommodations. (NRS 385.080, 388.419)

1. A public agency shall take the measures required pursuant to 34 C.F.R. § 300.172 to ensure that each pupil with a disability who needs instructional materials in an accessible format receives the instructional materials in a timely manner.

2. If, after reasonable efforts, a public agency is unable to provide instructional materials in an accessible format to a pupil with a disability in a timely manner, the public agency shall provide temporary accommodations to the pupil until the instructional materials are acquired in an accessible format.

3. As used in this section, “timely manner” means the use of reasonable efforts to provide instructional materials in an accessible format to a pupil with a disability at the same time that pupils without disabilities have access to the instructional materials.

(Added to NAC by Bd. of Education by R017-18, eff. 1-30-2019)

NAC 388.218 Request to determine whether provider of special education is in compliance with state and federal laws regarding pupils with disabilities; considerations for determining good cause to conduct inspection of provider; notice; construction of section. (NRS 385.080, 388.4352)

1. To request the Superintendent of Public Instruction to make a determination regarding whether a provider of special education is in compliance with a law or regulation governing the education of pupils with disabilities pursuant to subsection 1 of NRS 388.4352, a person or governmental entity must submit a written request signed by the person or a representative of the governmental entity, as applicable. Such a request must also include, without limitation:

(a) A statement that the person or representative believes that the provider of special education has violated a law or regulation governing the education of pupils with disabilities;

(b) A citation to the law or regulation that the provider is alleged to have violated; and

2. When determining pursuant to subsection 2 of NRS 388.4352 whether there is good cause to conduct an inspection of a provider of special education, the Superintendent of Public Instruction may consider:

(a) Whether the request provides enough information to determine whether the alleged violation occurred; and

(b) The date or dates on which the alleged violation occurred.

3. The Department shall notify a person or governmental entity that submitted a request for a determination by the Superintendent of Public Instruction whether the Superintendent has determined that there is good cause to conduct an inspection of a provider of special education pursuant to subsection 2 of NRS 388.4352.

4. If the Superintendent of Public Instruction receives a request for a determination described in subsection 1 for which one or more allegations are the subject of a due process hearing pursuant to NRS 388.463 and NAC 388.306, an appeal thereof or a complaint pursuant to NAC 388.318, the Superintendent must not make a determination or cause the Department to conduct an inspection concerning such an allegation until the final resolution of the due process hearing, appeal or complaint.

5. The provisions of this section shall not be construed in any manner that affects the right of a person to file a due process complaint pursuant to NRS 388.463 and NAC 388.306 or a complaint pursuant to NAC 388.318.

(Added to NAC by Bd. of Education by R117-17, eff. 5-16-2018)

NAC 388.219 Provision of services to pupils with disabilities who are homeschooled or enrolled by their parents in private schools. (NRS 385.080, 388.419) To the extent consistent with the number and location of pupils with disabilities who are homeschooled or enrolled by their parents in private elementary and secondary schools, including, without limitation, religious schools, and who are located in the school district, each school district shall provide for the participation of those pupils in the program assisted or carried out under Part B of the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1411 et seq., by providing those pupils with special education and related services in accordance with the provisions of 34 C.F.R. §§ 300.130 to 300.144, inclusive, including, without limitation, direct services determined in accordance with the provisions of 34 C.F.R. § 300.137.

(Added to NAC by Bd. of Education by R058-07, eff. 10-31-2007; A by R017-18, 1-30-2019)

NAC 388.225 Prohibition on requiring medication of pupil; consulting or sharing certain observations with parent. (NRS 385.080, 388.419)

1. A person employed by a public agency shall not require a pupil or a parent of a pupil to obtain a prescription for the pupil for a substance covered by the Controlled Substances Act, 21 U.S.C. §§ 801 et seq., as a condition of attending school, receiving an evaluation for special education or related services pursuant to NAC 388.330 to 388.440, inclusive, or receiving special education or related services.

2. This section does not prohibit a teacher or other school personnel from consulting or sharing classroom-based observations with a parent of a pupil concerning:

(a) The academic achievement and functional performance of the pupil;

(b) The behavior of the pupil while in the classroom, on the premises of any public school, at an activity sponsored by a public school or on any school bus; or

(Added to NAC by Bd. of Education by R071-05, eff. 2-23-2006; A by R017-18, 1-30-2019)

NAC 388.245 Restrictions on placement of pupil with disability; continuum of alternative placements; annual determination of placement of pupil; placement in least restrictive environment. (NRS 385.080, 388.419)

1. A pupil with a disability may not be placed in a special class or in a school different than the one the pupil would normally attend, or otherwise removed from the regular educational environment, unless:

(a) The pupil’s individualized educational program otherwise provides; and

(b) The nature or severity of the disability of the pupil is such that, even with the use of supplementary aids and services, the pupil cannot be educated satisfactorily in the regular educational environment.

Ê A pupil with a disability, including a pupil in a public or private institution or other care facility, must be educated with pupils who are not disabled to the maximum extent appropriate and may not be removed from an age-appropriate regular classroom solely because the pupil needs modification to the general curriculum.

2. A public agency shall provide a continuum of alternative placements to meet the needs of any pupil with a disability for special education and related services necessary to implement the individualized educational program for each pupil with a disability. This continuum must include, as appropriate:

(a) Consultative and supplementary services provided with regular class placement; and

(b) Instructing the pupil in:

(1) A regular class;

(2) A special class;

(3) A special school;

(4) A community-based program;

(5) The pupil’s home;

(6) A hospital; or

(7) An institution.

3. In the case of a program of special education for a pupil who is at least 3 years of age but less than 6 years of age, the continuum of alternative placements required by subsection 2 may include, as appropriate:

(a) A regular kindergarten class;

(b) A public or private preschool program;

(d) The pupil’s home.

4. In developing a pupil’s individualized educational program, the committee which develops the program shall provide for the least restrictive environment to the maximum extent appropriate. In making this determination, the committee shall consider any potential harmful effects on the pupil and the quality of services required by the pupil. The committee shall provide for the placement of the pupil in a regular class unless the committee determines that the pupil cannot receive an appropriate education in a regular class, even with supplementary aids and services. The basis for any such determination must be clearly set forth in the individualized educational program of the pupil.

5. Unless the needs or performance of the pupil preclude such participation, a pupil with a disability must be allowed to participate with pupils who are not disabled at mealtime, recess, or any other nonacademic or extracurricular activity occurring at school to the maximum extent appropriate and the public agency shall ensure that the pupil receives the supplementary aids and services determined appropriate by the individualized educational program committee for the pupil to participate in those activities. If a pupil with a disability is excluded from such participation because of the pupil’s needs or performance, the basis for the exclusion must be clearly set forth in the individualized educational program of the pupil.

6. The placement of a pupil with a disability must be determined at least annually. The decision on the placement of a pupil with a disability must be based on the pupil’s individualized educational program and must comply with the provisions of this section relating to the least restrictive environment. A pupil with a disability must be placed in the school that the pupil would normally attend if possible, or in the school closest to the pupil’s home which is capable of providing the services required by the pupil’s individualized educational program.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 11-23-93; R085-99, 2-16-2000; R058-07, 10-31-2007; R017-18, 1-30-2019)

NAC 388.255 Basis for change in placement of pupil with disability. (NRS 385.080, 388.419) Except as otherwise provided in NAC 388.265, any change in the placement of a pupil with a disability must comply with NAC 388.245 and be based upon:

1. The current individualized educational program of the pupil;

2. The initial evaluation or most recent reevaluation of the pupil, as applicable; and

3. Information relating to the current educational performance of the pupil.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 11-23-93; R085-99, 2-16-2000; R071-05, 2-23-2006; R058-07, 10-31-2007; R017-18, 1-30-2019)

NAC 388.261 Transmittal of education records of pupil with disability upon enrollment in different school or public agency. (NRS 385.080, 388.419)

1. Except as otherwise provided in subsection 2, if a pupil with a disability who was enrolled in a school or public agency subsequently enrolls in another school or public agency, the school or public agency in which the pupil was enrolled shall, not later than 10 school days after receipt of notice of the pupil’s enrollment in another school or public agency, transmit the education records of the pupil to the school or public agency in which the pupil is currently enrolled.

2. If a school or public agency requires the consent of the parent of a pupil before transmitting the education records of the pupil, the school or public agency shall transmit the education records of the pupil pursuant to subsection 1 not later than 10 school days after it receives such consent.

(Added to NAC by Bd. of Education by R028-01, eff. 11-1-2001; A by R017-18, 1-30-2019)

NAC 388.263 Provision of comparable services to pupil with disability who transfers to another school district or public agency or transfers from another state. (NRS 385.080, 388.419)

1. If a pupil with a disability who is receiving special education and related services pursuant to an individualized educational program in a school in this State transfers to another school district or public agency in this State in the same academic school year and enrolls in another school, the applicable public agency shall, in consultation with the parents of the pupil, provide the pupil with a free appropriate public education, including services which are comparable to the services described in his or her previous individualized educational program. The public agency shall continue to provide such a free appropriate public education to the pupil. The public agency shall:

(a) Within 30 days after the pupil is enrolled in the school, adopt the previous individualized educational program for the pupil or develop a new individualized educational program for the pupil in accordance with applicable federal and state law; or

(b) Commence a reevaluation of the pupil within 30 days after the pupil is enrolled in the school and continue to provide comparable services described in the pupil’s individualized educational program until the development of a new individualized educational program for the pupil in accordance with applicable federal and state law. For purposes of this paragraph, a reevaluation is commenced when written notice is provided to the parent of the pupil that additional data is not required or upon the consent of a parent for a reevaluation that requires additional data.

2. If a pupil with a disability who is receiving special education and related services pursuant to an individualized educational program in another state transfers to a school district or public agency in this State in the same academic school year and enrolls in a school, the applicable public agency shall, in consultation with the parents of the pupil, provide the pupil with a free appropriate public education, including services which are comparable to the services described in his or her previous individualized educational program. The public agency shall continue to provide such a free appropriate public education to the pupil until such time as the public agency conducts an evaluation of the pupil pursuant to NAC 388.330 to 388.440, inclusive, and develops a new individualized educational program for the pupil, if determined appropriate, in accordance with applicable federal and state law.

3. The public agency shall maintain written documentation of the consultation with the parents of the pupil, the comparable services that will be provided to the pupil and the period during which the comparable services will be provided. The public agency shall provide to the parents of the pupil a copy of the documentation at no cost.

(Added to NAC by Bd. of Education by R071-05, eff. 2-23-2006; A by R058-07, 10-31-2007; R017-18, 1-30-2019)

NAC 388.265 Suspension, expulsion or exclusion of pupil with disability; additional protections for certain pupils with disabilities. (NRS 385.080, 388.419)

1. A pupil with a disability may not be suspended, expelled or excluded from attendance by a public agency for an incident of misconduct except upon compliance with the provisions of this section, 34 C.F.R. §§ 300.530 to 300.536, inclusive, and 20 U.S.C. § 1415(k). School personnel may consider any unique circumstances, including, without limitation, the disciplinary history of the pupil, the ability of the pupil to understand consequences, whether the pupil expresses remorse and whether support was provided before the misconduct, on a case-by-case basis when determining whether to make a change of placement for a pupil with a disability who violates a code of conduct for pupils.

2. Before initiating any suspension, expulsion or exclusion that will result in a change of placement for the pupil during a school year, the public agency shall convene a meeting of relevant members of the committee, as determined by the parent and the public agency, that developed the pupil’s individualized educational program pursuant to NAC 388.281. The public agency may appoint other qualified personnel to meet with those relevant members of the committee.

3. The public agency, the parent, the relevant members of the committee and any other qualified personnel appointed by the public agency to meet with the relevant members of the committee shall:

(a) Consider all information relevant to the behavior subject to disciplinary action, including, without limitation:

(1) Evaluations and diagnostic results, including, without limitation, relevant information supplied by the parents of the pupil;

(2) Observations of the pupil; and

(3) The pupil’s individualized educational program and placement.

(b) Determine whether the behavior of the pupil was a manifestation of the disability of the pupil. In carrying out the requirements of this paragraph, it must be determined whether the conduct in question was:

(1) Caused by or directly and substantially related to the disability of the pupil; or

(2) The direct result of the public agency’s failure to implement the pupil’s individualized educational program.

Ê If the public agency, the parent and the relevant members of the committee determine that either subparagraph (1) or (2) is applicable to the pupil, the conduct must be determined to be a manifestation of the disability of the pupil.

4. The public agency shall provide to a pupil with a disability who is suspended, expelled or excluded a free appropriate public education in accordance with 34 C.F.R. § 300.530(d) on the 11th school day that the pupil is removed in the same school year and during any subsequent school day in the same school year in which the pupil is removed from school.

5. A pupil who has not been determined to be eligible for special education and related services and who has engaged in behavior that violates a code of student conduct may assert the protections in this section in accordance with 34 C.F.R. § 300.534.

6. As used in this section, “change of placement” occurs under the circumstances described in 34 C.F.R. § 300.536.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 9-13-91; 11-23-93; R039-98, 5-29-98; R085-99, 2-16-2000; R071-05, 2-23-2006; R058-07, 10-31-2007; R017-18, 1-30-2019)

NAC 388.275 Development of interim individualized educational program. (NRS 385.080, 388.419)

1. An interim individualized educational program may be developed by a public agency for a pupil with a disability who is being considered for special education and related services if the pupil was determined to be eligible for special education by another public agency or in another state. If the pupil was determined to be eligible for special education in another state, a determination of eligibility pursuant to this chapter must be made before the pupil is eligible to receive special education in this State.

2. Upon the expiration of 30 days after the development of an interim individualized educational program pursuant to this section, an individualized educational program must be developed for a pupil who is eligible to receive special education in this State in the manner provided by NAC 388.281 to 388.284, inclusive.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 9-13-91; 11-23-93; R085-99, 2-16-2000; R017-18, 1-30-2019)

NAC 388.281 Development, implementation, review and revision of individualized educational program. (NRS 385.080, 388.419) Except as otherwise provided in this chapter and applicable federal laws and regulations:

1. Before providing special education and related services for pupils with disabilities, a public agency shall adopt a procedure whereby an individualized educational program is developed for each such pupil. The procedure adopted must ensure that an individualized educational program is in effect at the beginning of each school year and before the initiation of special education or related services. Except as otherwise provided in this chapter and 34 C.F.R. § 300.300(b)(3)(ii), the procedure must comply with the provisions of 34 C.F.R. §§ 300.320 to 300.324, inclusive. For eligible pupils making the transition from early intervention programs operated pursuant to 20 U.S.C. §§ 1431 to 1444, inclusive:

(a) An individualized educational program must be developed and implemented by the pupil’s third birthday.

(b) The public agency shall participate in transition planning conferences arranged by the early intervention program of the pupil.

2. The individualized educational program for a pupil must be developed, reviewed and revised by a committee which includes at least:

(a) One representative of the public agency who is:

(1) Qualified to provide or supervise the provision of specially designed instruction to meet the unique needs of pupils with disabilities;

(2) Knowledgeable about the general education curriculum of the public agency; and

(3) Knowledgeable about the availability of resources of the public agency;

(b) If the pupil participates in a regular educational environment, one regular classroom teacher of the pupil or, if the pupil may participate in a regular educational environment, one regular classroom teacher;

(c) One special education teacher of the pupil or, if appropriate, one person who provides special education and related services to the pupil;

(d) Except as otherwise provided in subsections 10 and 11, one or both of the pupil’s parents;

(e) If not otherwise a member of the committee, a person who is familiar with the tests and other assessments performed on or by the pupil and their results and who can interpret the instructional implications of the results of the evaluation;

(f) Except as otherwise provided in subsection 12, the pupil if the committee is meeting to develop an individualized educational program which includes:

(1) Transition services relating to the courses of study of a pupil who has attained 14 years of age; or

(2) Postsecondary goals and transition services for a pupil who is 16 years of age or older or who will attain 16 years of age during the period in which the individualized educational program is in effect;

(g) If the committee is meeting to develop an individualized educational program which includes postsecondary goals and transition services for a pupil who is 16 years of age or older or who will attain 16 years of age during the period in which the individualized educational program is in effect, and the parent of the pupil consents, a representative of any participating agency that may be responsible for providing or paying for the transition services; and

(h) If not otherwise a member of the committee, one member who has personal knowledge about the personnel and options for placement available to provide special education and related services to the pupil.

3. The parents or their representative and the representative of the public agency may each ask such other persons who have knowledge or special expertise concerning the pupil, including the pupil and persons who provide related services to the pupil, as appropriate, to join the committee. The determination of the knowledge or special expertise of such a person must be made by the parents or the public agency who invited the person to participate.

4. A member of a committee to develop an individualized educational program for a pupil with a disability must not be required to attend a meeting of the committee, in whole or in part, if

the authorized representative of the public agency and the parent of the pupil agree in writing that the attendance of such member is not necessary because the member’s area of the curriculum or related services is not being modified or discussed at the meeting.

5. A member of a committee to develop an individualized educational program for a pupil with a disability may be excused from attending a meeting of the committee, in whole or in part, when the meeting involves a modification to or discussion of the member’s area of the curriculum or related services, if:

(a) The parent of the pupil with a disability consents in writing to the absence of the member;

(b) The authorized representative of the public agency consents to the absence; and

(c) Before the meeting, the member submits, in writing, to the parent and the committee the member’s input concerning the development of the individualized educational program.

6. The public agency shall:

(a) At least annually, initiate and conduct the meetings of the committees formed to develop the individualized educational programs;

(b) Have an individualized educational program in effect for each pupil with a disability within its jurisdiction at the beginning of each school year and maintain detailed records of each such program and the procedure followed in developing it;

(c) Ensure that each regular classroom teacher, special education teacher, persons who provide related services, and any other provider of services to the pupil who is responsible for carrying out the pupil’s individualized educational program has access to the pupil’s individualized educational program and is informed of any specific responsibilities related to carrying out the pupil’s individualized educational program;

(d) Ensure that each regular classroom teacher, special education teacher, persons who provide related services and any other provider of services to the pupil who is responsible for carrying out the pupil’s individualized educational program is informed of any specific accommodation, modification or support that must be provided to the pupil in accordance with the pupil’s individualized educational program;

(e) Make special education and related services available to the pupil in accordance with his or her program as soon as possible after it is developed;

(f) Take whatever action is necessary, including arranging for an interpreter for parents who are deaf or whose native language is other than English, to ensure that parents who attend a committee meeting understand the proceedings;

(g) Initiate and conduct additional meetings of the committees formed to develop each pupil’s individualized educational program to identify alternative strategies to meet the transition objectives in the pupil’s individualized educational program when a participating agency fails to provide an agreed upon service; and

(h) Provide a copy of the pupil’s individualized educational program and any revisions to the parents of the pupil at no cost.

7. After the annual meeting for a school year to develop the individualized educational program for a pupil:

(a) Upon written agreement of the parent of the pupil with a disability and the authorized representative of the public agency, the pupil’s individualized educational program may be revised without convening a meeting of the committee.

(b) Portions of the pupil’s individualized educational program may be revised without redrafting the entire individualized educational program.

Ê If an individualized educational program is revised in accordance with this subsection, the parent of the pupil with a disability must be provided with a copy of the revised individualized educational program at no cost and the public agency shall ensure that the committee is informed of the changes.

8. The public agency shall:

(a) Schedule the meeting for a time and at a place that is mutually agreed upon by the parents of the pupil and the public agency;

(b) Provide the parents of the pupil written notice of the purpose, date, time and location of the committee meeting and a list of the persons who will attend the meeting;

(c) Inform the parents of their right to invite persons who have knowledge or special expertise regarding the pupil, including, without limitation, any appropriate related service personnel, to participate as a member of the committee that will develop the pupil’s individualized educational program; and

(d) If the transition services relating to courses of study or transition services and postsecondary goals described in paragraph (e) or (f) of subsection 1 of NAC 388.284 will be discussed at the meeting:

(1) Provide notice pursuant to paragraph (b) to the pupil and the parents and include in the notice to the pupil an invitation to the pupil to attend the meeting and include in the notice to the parents a statement that the pupil will be invited to attend the meeting; and

(2) Specifically state in the notice provided pursuant to paragraph (b) that transition services relating to courses of study or transition services and postsecondary goals will be discussed at the meeting.

Ê The notice must be given sufficiently far in advance of the meeting to enable the parents to make arrangements to attend.

9. The public agency shall, if the pupil previously received early intervention services pursuant to 20 U.S.C. §§ 1431 et seq., include in the notice to the parents of the pupil given pursuant to paragraph (b) of subsection 8 that, upon the request of the parents, the public agency will send an invitation to the service coordinator of the pupil’s early intervention system or other representative of the early intervention system to participate in the initial meeting for the development of the pupil’s individualized educational program to assist with the smooth transition of services for the pupil. If the parents request such an invitation, the public agency shall send an invitation to the service coordinator of the pupil’s early intervention system or other representative of that system to participate in the initial meeting for the development of the pupil’s individualized educational program.

10. If the parents do not acknowledge receipt of the notice given pursuant to paragraph (b) of subsection 8, the public agency shall make additional attempts to notify them, which may include, without limitation, attempts to notify them by telephone or through a visit to their home or place of employment. The public agency shall keep detailed records of any telephone calls, correspondence or visits made to a parent’s home or place of employment pursuant to this section and their results, if any. The parents of a pupil with a disability and the public agency may agree to use alternative means of participation in a meeting by the use of a video conference, a telephone conference call or other means. If neither parent is able to attend a meeting for the development of a pupil’s individualized educational program, the public agency shall use alternative methods to ensure the participation of a parent, including, without limitation, the use of a video conference, a telephone conference call or other means.

11. If the reasonable efforts of the public agency to convince the pupil’s parents to attend or participate in the meeting through the use of alternative methods are unsuccessful, the parents shall be deemed unavailable and the public agency shall conduct the meeting and develop an individualized educational program for the pupil without the parents.

12. If the pupil for whom the individualized educational program is being developed does not attend the meeting and the program includes transition services, the public agency shall use alternative methods to ascertain the preferences and interests of the pupil and document the alternative methods that were used.

13. The committee shall:

(a) Meet to develop the pupil’s individualized educational program not later than 30 days after it is determined that the pupil is eligible for special education and related services.

(b) Base the individualized educational program it develops for the pupil on the results of an evaluation made in accordance with NAC 388.330 to 388.440, inclusive.

(c) Review the individualized educational program at least annually to determine whether the annual goals for the pupil are being achieved and revise it as appropriate in accordance with 34 C.F.R. § 300.324(b).

(Added to NAC by Bd. of Education, eff. 2-7-83; A 7-14-88; 9-13-91; 11-23-93; R039-98, 5-29-98; R039-98, 5-29-98, eff. 7-1-98; R085-99, 2-16-2000; R071-05, 2-23-2006; R058-07, 10-31-2007; R017-18, 1-30-2019)

NAC 388.282 Placement of pupil with disability in private school or facility. (NRS 385.080, 388.419)

1. A public agency shall provide a pupil with a disability who is placed in or referred to a private school or facility by the public agency with special education and related services at no cost to the parents and in accordance with the pupil’s individualized educational program and 34 C.F.R. § 300.325.

2. Except as otherwise provided in subsection 3, before a public agency places a pupil with a disability in or refers such a pupil to a private school or facility, the public agency shall initiate and conduct a meeting to develop an individualized educational program for the pupil. The public agency shall ensure that a representative of the private school attends the meeting. If a representative is unable to attend the meeting, the public agency shall use alternative methods to ensure participation by the private school or facility, including, without limitation, the use of a video conference, a telephone conference call or other means.

3. Notwithstanding the placement of a pupil in a private school or facility as provided in this section, the public agency:

(a) Remains responsible for implementing the individualized educational program of the pupil; and

(b) Must serve the pupil as it serves pupils with disabilities in public schools.

4. Except as otherwise provided in 34 C.F.R. § 300.156, a public agency shall ensure that a pupil with a disability who is placed in or referred to a private school or facility by the public agency is provided an education in compliance with the provisions of:

(a) Part B of the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1411 et seq., and the regulations adopted pursuant thereto; and

(b) NRS 388.417 to 388.5243, inclusive, and NAC 388.001 to 388.450, inclusive,

Ê and is afforded all the rights of a pupil with a disability who is served by a public agency.

(Added to NAC by Bd. of Education, eff. 2-7-83; A 7-14-88; 9-13-91; 11-23-93; R085-99, 2-16-2000; R058-07, 10-31-2007; R017-18, 1-30-2019)

NAC 388.283 Appointment of surrogate parent for pupil with disability; requirements of surrogate parent. (NRS 385.080, 388.419)

1. Except as otherwise provided in subsection 2, a public agency shall appoint a surrogate parent for:

(a) A pupil with a disability when:

(1) No parent can be identified;

(2) The location of a parent is not discovered after reasonable efforts; or

(3) The pupil is a ward of the State.

(b) An unaccompanied youth who is a homeless youth.

Ê The public agency shall make reasonable efforts to ensure the appointment of a surrogate parent not more than 30 days after the determination of the public agency that the appointment is necessary.

2. If a pupil with a disability is a ward of the State, the judge overseeing the care of the pupil may appoint a surrogate parent who satisfies the requirements of this section.

3. A person selected as a surrogate parent pursuant to this section must have no interest that conflicts with the interests of the pupil and have knowledge and skills that ensure the adequate representation of the pupil’s interests.

4. Except as otherwise provided in this subsection, the surrogate parent must not be an employee of the public agency which is involved in the education or care of the pupil, but he or she may be paid by the public agency to serve as the surrogate parent. If the pupil is an unaccompanied youth who is a homeless youth, an appropriate employee of an emergency shelter, transitional shelter, independent living program or street outreach program who is otherwise qualified may be appointed on a temporary basis as a surrogate parent, regardless of whether the person is employed by a public agency which is involved in the education or care of the pupil, until another person is appointed as a surrogate parent who satisfies the requirements of subsection 3.

5. The surrogate parent shall represent the pupil in all matters relating to the identification of the pupil, the assessment of any special educational needs of the pupil, the educational placement of the pupil and the provision of a free appropriate program of public education to the pupil. The program must be provided for the pupil without any cost to the surrogate parent.

6. As used in this section, “unaccompanied youth” has the meaning ascribed to it in 42 U.S.C. § 11434a(6).

(Added to NAC by Bd. of Education, eff. 2-7-83; A 7-14-88; 9-13-91; 11-23-93; R071-05, 2-23-2006; R058-07, 10-31-2007; R017-18, 1-30-2019)

NAC 388.284 Individualized educational program: Contents; considerations when developing. (NRS 385.080, 388.419)

1. Each committee shall include in the individualized educational program it develops for a pupil with a disability:

(a) A statement of the pupil’s present levels of academic achievement and functional performance, including, without limitation:

(1) If the pupil is preschool age, a description of how the disability of the pupil affects the participation of the pupil in appropriate activities.

(2) If the pupil is above preschool age, a description of how the disability of the pupil affects the involvement and progress of the pupil in the general education curriculum.

(b) A statement of the measurable annual goals, including benchmarks or the short-term instructional objectives, academic and functional goals related to meeting the needs of the pupil that result from the disability of the pupil. Such goals must enable the pupil to be involved in and make progress in the general education curriculum and meet the other educational needs of the pupil that result from the disability of the pupil.

(c) A statement of the specific special education, supplementary aids and services, and related services, based on peer-reviewed research to the extent practicable, to be provided to the pupil, or on behalf of the pupil, and a statement of the modifications to the regular educational program or support for school personnel that must be provided for the pupil to:

(1) Advance appropriately toward attaining the annual goals set forth in paragraph (b);

(2) Participate and progress in the general education curriculum;

(3) Participate in extracurricular activities and other nonacademic activities; and

(4) Participate with other pupils with disabilities and pupils who are not disabled in the activities described in this paragraph.

(d) A statement of the assistive technology devices and services necessary for the pupil to be able to receive a free appropriate public education. Such services may be provided as:

(1) Special education;

(2) Related services; or

(3) Supplementary aids and services.

Ê On a case-by-case basis, assistive technology devices must be purchased by the public agency for use by the pupil at home or in other settings if the individualized educational program committee determines that the pupil needs access to those devices to receive a free appropriate public education.

(e) If the pupil is 14 years of age or older, a statement of transition services with regard to the pupil’s courses of study, including, without limitation, participation in advanced placement courses or a vocational educational program. The committee may prepare such a statement before the pupil is 14 years of age if the committee determines that the statement is appropriate for the pupil. The statement required by this paragraph must be updated annually.

(f) Beginning not later than the first individualized educational program which is in effect when the pupil is 16 years of age and in annual updates thereafter:

(1) Appropriate measurable postsecondary goals based upon age-appropriate transition assessments related to training, education, employment and, where appropriate, independent living skills; and

(2) Transition services, including, without limitation, the courses of study needed to assist the pupil in reaching those goals.

(g) The projected dates for the initiation of the modifications and services described in paragraphs (c) to (f), inclusive, and the anticipated frequency, location and duration of such modifications and services.

(h) A statement that describes the method by which the progress of the pupil toward the annual goals will be measured and when periodic reports on the progress of the pupil toward meeting the annual goals will be provided by the use of quarterly or other periodic reports, concurrent with the issuance of report cards, or other means. The parent of a pupil who is 3, 4 or 5 years of age must be given an opportunity to participate in a review of the progress of the pupil not less than once every 6 months.

(i) A statement of any individual appropriate accommodations that are necessary to measure the academic achievement and functional performance of the pupil on state and district-wide assessments. If the committee to develop an individualized educational program determines that the pupil must take an alternate assessment for a particular state or district-wide assessment of pupil achievement, the individualized educational program must include a statement of why the pupil cannot participate in the regular assessment and why the particular alternate assessment selected is appropriate for the pupil. The committee shall not base its determination of whether a pupil may participate in such examinations upon the fact that the pupil has already been labeled as having a disability, or upon the placement of the pupil or other categorical factors.

(j) If the pupil is entering the public agency from another public agency, provisions relating to case management and transition between the public agencies, as appropriate.

(k) A statement of the other placements considered by the committee and, if the pupil will be removed from the regular educational environment, the reasons why the committee rejected a less restrictive placement.

(l) An explanation of the extent, if any, to which the pupil will not participate in a regular class or in extracurricular and other nonacademic activities with pupils who are not disabled.

(m) On or before the date on which the pupil attains the age of 17 years, a statement that the pupil has been informed of the rights that will devolve upon the pupil when the pupil attains the age of 18 years. The statement must be updated annually.

2. When developing a pupil’s individualized educational program, the committee shall:

(a) Consider the strengths of the pupil, the concerns of the parents for enhancing the education of their child, the results of the initial evaluation or most recent evaluation of the pupil, and the academic, developmental and functional needs of the pupil;

(b) If the behavior of the pupil impedes the learning of the pupil or other pupils, provide positive behavioral strategies, supports and interventions, or other strategies, supports and interventions to address that behavior;

(c) If the pupil has limited proficiency in English, consider the language needs of the pupil as those needs relate to the pupil’s individualized educational program;

(d) If the pupil is blind or visually impaired, provide for instruction in Braille and the use of Braille unless the committee determines, after an evaluation of the pupil’s reading and writing skills, needs and appropriate reading and writing media, including, without limitation, an evaluation of the pupil’s future needs for instruction in Braille or the use of Braille, that instruction in Braille or the use of Braille is not appropriate for the pupil;

(e) Consider the communication needs of the pupil and, in the case of a pupil who is deaf or hard-of-hearing, consider, in accordance with the provisions of NRS 388.437, the pupil’s language and communication needs, opportunities for direct communications with other pupils and professional personnel in the pupil’s language and communication mode, academic level and full range of needs, including, without limitation, opportunities for direct instruction in the pupil’s language and communication mode;

(f) Consider whether the pupil requires assistive technology devices and services; and

(g) Consider the instructional needs of the pupil, in accordance with the provisions of NRS 388.443, if the pupil has a specific learning disability and dyslexia.

3. When developing a pupil’s individualized educational program, the public agency:

(a) May include goals and objectives of the general education curriculum in the individualized educational program of the pupil if the disability of the pupil affects participation, involvement and progress in the general education curriculum and if the individualized educational committee determines that the inclusion of such goals and objectives is appropriate for that pupil; and

(b) Shall include in the individualized educational program of a pupil who requires positive behavioral strategies, supports and interventions:

(1) Positive strategies to modify the environment of pupils with disabilities to promote adaptive behavior and reduce the occurrence of inappropriate behavior;

(2) Services to teach skills to pupils with disabilities so that the pupils can replace inappropriate behavior with adaptive behavior;

(3) Services to enhance the independence and quality of life of pupils with disabilities;

(4) The use of the least restrictive strategies, supports and interventions to respond to and reinforce the behavior of pupils with disabilities; and

(5) A process of designing interventions based on the pupil that are focused on promoting appropriate changes in behavior as well as enhancing the overall quality of life for the pupil without the use of aversive or negative means.

Ê The positive behavioral strategies, supports and interventions or other strategies, supports and interventions may be addressed in the statement of special education, supplementary aids and services, or related services, if the pupil’s individualized educational program committee determines appropriate.

4. If both an individualized educational program and another individualized plan or program of services are required to be prepared for a pupil, the latter plan or program may be incorporated in the individualized educational program.

5. The public agency shall not limit the availability of extended school year programs to pupils with a particular category of disability or unilaterally limit the type, amount or duration of those programs. As used in this subsection, “extended school year programs” means special education and related services that:

(a) Are provided to a pupil with a disability outside the normal school year of the public agency;

(b) Are in accordance with the pupil’s individualized educational program;

(d) Comply with the requirements of this chapter.

(Added to NAC by Bd. of Education, eff. 2-7-83; A 7-14-88; 11-23-93; R039-98, 5-29-98; R085-99, 2-16-2000; R071-05, 2-23-2006; R058-07, 10-31-2007; R017-18, 1-30-2019)

NAC 388.2855 Individualized program of education for pupil with disability enrolled in public high school. (NRS 385.080, 388.419) The board of trustees of each school district shall have an individualized educational program prepared for each pupil with a disability who is enrolled in a public high school in the district. The program must include:

1. A statement of the pupil’s present levels of educational performance;

2. A statement of annual goals, including short-term instructional objectives;

3. A statement of the specific special education and related services to be provided to the pupil and the extent to which he or she will be able to participate in regular educational programs;

4. The projected dates for initiation of services and the anticipated duration of the services;

5. Appropriate objective criteria, procedures for evaluation and schedules for determining, at least on an annual basis, whether the short-term instructional objectives are being achieved;

6. A schedule of meetings with the pupil and his or her parents or a record of attempts to schedule such meetings if such meetings are appropriate for a review of the pupil’s progress; and

7. If appropriate, the special requirements or adjusted standards which the pupil must meet for graduation from high school.

(Added to NAC by Bd. of Education, eff. 12-16-82) — (Substituted in revision for part of NAC 389.696)

NAC 388.287 Inspection and review of education records of pupil; maintenance of records of certain persons given access; restriction on fee. (NRS 385.080, 388.419, 388.5267)

1. The parents of a pupil must be allowed to inspect and review any education records relating to their child which are collected, maintained or used by an agency with personally identifiable information. The agency with personally identifiable information shall comply with such a request for inspection and review without unnecessary delay and in any event:

(a) Before any meeting regarding the pupil’s individualized educational program or any hearing or resolution meeting pursuant to NAC 388.306 to 388.310, inclusive, as applicable; and

(b) Not later than 45 days after the request has been made.

2. The parents have the right to:

(a) Make reasonable requests for the agency with personally identifiable information to explain and interpret the education records, and the agency with personally identifiable information shall respond to each such request;

(b) Have their representative inspect and review the records; and

(c) Request that the agency with personally identifiable information provide them with copies of the records if, without the copies, any meaningful review of the records is impractical.

3. An agency with personally identifiable information may presume that a parent has authority to inspect and review education records relating to the pupil unless the agency with personally identifiable information has been advised that the parent does not have the authority under applicable state law governing such matters as guardianship, separation or divorce.

4. Each agency with personally identifiable information shall keep a record of the persons, other than parents and authorized employees, who are given access to education records it collects, maintains or uses. The record must include the:

(a) Name of the person;

(b) Date access was given; and

5. If any education record contains information on more than one pupil, the parents may inspect and review only the information relating to their child or be informed of that specific information.

6. The agency with personally identifiable information shall maintain and provide to parents on request a list of the types and locations of education records it collects, maintains or uses relating to pupils.

7. If the agency with personally identifiable information charges a fee for copies of records which are made for parents, the amount of the fee must not effectively prevent the parents from exercising their right to inspect and review those records. No fee may be charged for the search or retrieval of the information.

(Added to NAC by Bd. of Education, eff. 2-7-83; A 7-14-88; 11-23-93; R085-99, 2-16-2000; R017-18, 1-30-2019)

NAC 388.288 Amendment of education records; hearing. (NRS 385.080, 388.419, 388.5267)

1. A parent who believes that information in education records is inaccurate, misleading or violates the privacy or other rights of the pupil may request an amendment of the information. The agency with personally identifiable information shall determine whether to amend the information in accordance with the request within a reasonable period of time after the receipt of the request. If the decision is to refuse to amend the information, the agency with personally identifiable information shall inform the parent of the refusal in writing and shall include the reason for the refusal and advise the parent that the parent has a right to a hearing.

2. The agency with personally identifiable information shall, upon request, provide an opportunity for a hearing to challenge information in education records to ensure that the information is not inaccurate, misleading or otherwise in violation of the privacy or other rights of the pupil. If, as a result of the hearing, it is decided that the information is:

(a) Inaccurate, misleading or otherwise in violation of the privacy or other rights of the pupil, the agency with personally identifiable information shall amend the information accordingly and so inform the parents in writing.

(b) Not inaccurate, misleading or otherwise in violation of the privacy or other rights of the pupil, the parent may place in the records a statement commenting on the information or setting forth any reasons for disagreeing with the decision. The agency with personally identifiable information shall notify the parent that the parent has a right to include such a statement in the records. The agency with personally identifiable information shall retain any such explanation placed in the records of the pupil as part of the records of the pupil as long as the records or the contested portion is maintained. If the records of the pupil or the contested portion is disclosed to any person, the explanation must also be disclosed.

3. A hearing held pursuant to subsection 2 must be conducted in accordance with the applicable procedures set forth in the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g, and the regulations adopted thereunder.

(Added to NAC by Bd. of Education, eff. 2-7-83; A 7-14-88; 11-23-93; R085-99, 2-16-2000; R017-18, 1-30-2019)

NAC 388.289 Confidentiality of personally identifiable information; exception. (NRS 385.080, 388.419, 388.5267)

1. Each agency with personally identifiable information shall, pursuant to the provisions of 34 C.F.R. §§ 300.610 to 300.626, inclusive:

(a) Protect the confidentiality of personally identifiable information at its collection, storage, disclosure and destruction;

(b) Appoint one official to assume responsibility for ensuring the confidentiality of any personally identifiable information;

(c) Train or instruct all persons collecting or using personally identifiable information regarding these policies and procedures; and

(d) Maintain a current listing for public inspection of the names and positions of those employees within the agency with personally identifiable information who may have access to personally identifiable information.

2. Each agency with personally identifiable information shall:

(a) Inform the parents when the personally identifiable information collected, maintained or used is no longer needed to provide educational services to the pupil;

(b) Maintain a permanent record of the pupil’s name, address, telephone number, grades, attendance, classes the pupil attended, grades he or she completed and the year he or she completed them; and

(c) Upon the request of the parent of a pupil, destroy any personally identifiable information, except the information listed in paragraph (b), which is no longer necessary to provide educational services to the pupil.

3. An agency with personally identifiable information shall not disclose personally identifiable information except as authorized by law.

4. An agency with personally identifiable information may include student teachers and related service interns among those persons who have a legitimate educational interest in accessing education records pursuant to policies developed in accordance with the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g, and the related regulations.

(Added to NAC by Bd. of Education, eff. 2-7-83; A 7-14-88; 11-23-93; R085-99, 2-16-2000; R058-07, 10-31-2007; R017-18, 1-30-2019)

NAC 388.290 Required facilities and space. (NRS 385.080, 388.419) The facilities and the assignment of space to special programs for pupils with disabilities must be comparable to the facilities and space assigned for regular programs in the school. For the purposes of this subsection, “comparable” means substantially equivalent, giving consideration to lighting, acoustics, ventilation, furnishings, materials and the special needs of the pupils enrolled.

[Dep’t of Education, eff. 12-15-77] — (NAC A by Bd. of Education, 2-7-83; 7-14-88; 11-23-93; R085-99, 2-16-2000)

NAC 388.292 Public notice of major project to identify, locate or evaluate pupils or educational data; contents of notice. (NRS 385.080, 388.419, 388.5267)

1. Before a public agency begins a major project involving the identification, location or evaluation of pupils or educational data, it must publish a notice in newspapers or by other communication media with circulation adequate to notify parents throughout the State of the proposed project.

2. The notice must include:

(a) A description of the extent to which the notice is given in the native languages of the various population groups in the State;

(b) A description of the pupils on whom personally identifiable information is maintained;

(d) A description of the methods and sources to be used in gathering the information;

(e) The uses to be made of the information;

(f) A summary of the policies and procedures to be followed regarding the storage, disclosure to any interested third parties, retention and destruction of personally identifiable information; and

(g) A description of all of the rights of parents and pupils regarding this information, including, without limitation, the rights pursuant to the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g, and the related regulations.

(Added to NAC by Bd. of Education, eff. 2-7-83; A 7-14-88; 11-23-93; R085-99, 2-16-2000; R017-18, 1-30-2019)

NAC 388.294 Monitoring of units and programs. (NRS 385.080, 388.419, 388.5267)

1. The Department will monitor each unit to determine whether the unit is in compliance with this chapter.

2. Each public agency which provides an educational program for pupils with disabilities shall establish a procedure for monitoring the program to ensure that it complies with the provisions of this chapter.

(Added to NAC by Bd. of Education, eff. 2-7-83; A 7-14-88; 11-23-93)

NAC 388.296 Reports to Department concerning programs and units. (NRS 385.080, 388.419)

1. Any information or report required to be furnished to the Department by a public agency providing an educational program for pupils with disabilities must be furnished in the form and manner prescribed by the Department.

2. A public agency shall submit the requested information regarding each unit receiving apportionment to the Special Education Branch of the Department at the beginning of each school year and as changes occur.

(Added to NAC by Bd. of Education, eff. 2-7-83; A 7-14-88; 11-23-93)

NAC 388.297 Report to Department regarding caseloads of physical therapists and occupational therapists employed by or contracted with a public agency to provide services to pupils with disabilities; posting on Internet website. (NRS 385.080, 388.419)

1. On or before October 1 of each odd-numbered year, each public agency shall submit a report to the Department, in a manner prescribed by the Department, regarding the caseloads of physical therapists and occupational therapists employed by or contracted with the public agency to provide services to pupils with disabilities during the immediately preceding 2 school years. Such a report must include, without limitation:

(a) A description of the factors used by the public agency in determining the caseloads of the physical therapists and occupational therapists, including, without limitation:

(1) The range of the number of pupils with disabilities at different school sites who require services from the public agency;

(2) The range of the levels of intensity of the services required;

(3) The availability of assistants who are appropriately certified to assist with the provision of the services;

(4) The geographic factors that affect the ability of the therapists to travel to provide the services; and

(5) The degree to which the public agency expects the therapists to participate in meetings pertaining to the pupils;

(b) The number of vacancies in the positions of physical therapist and occupational therapist experienced by the public agency in the immediately preceding 2 school years;

(c) A description of the efforts made by the public agency for the recruitment and retention of physical therapists and occupational therapists; and

(d) A list of each position of physical therapist and occupational therapist employed by or contracted with the public agency during the immediately preceding 2 school years, designated by full-time equivalency, including, without limitation, the maximum caseload assigned to each position.

2. Each public agency shall post a copy of the report described in subsection 1 on the Internet website maintained by the public agency, if applicable, on or before October 1 of each odd-numbered year.

(Added to NAC by Bd. of Education by R064-08, eff. 9-18-2008)

NAC 388.300 Circumstances in which informed parental consent required; withdrawal of consent; exception; prior written notice to parents of proposed or refused action; provision of statement of parental rights; electronic notice. (NRS 385.080, 388.419)

1. Except as otherwise provided in this section and subsection 17 of NAC 388.310, informed written consent must be obtained from the parents of the pupil before conducting an initial evaluation, before conducting additional assessments in a reevaluation, and before special education and related services are initially provided to a pupil with a disability. The public agency shall make reasonable efforts to obtain such consent. If a parent refuses to provide written consent for the initial evaluation, fails to respond to a request to provide the consent for an initial evaluation or refuses to provide consent for a reevaluation requiring additional assessments, the public agency may, but is not required to, request mediation pursuant to NAC 388.305 or file a due process complaint pursuant to NAC 388.306.

2. If a public agency has made reasonable efforts to obtain informed consent from the parent of a pupil for an initial evaluation and the parent fails to respond or refuses to provide written consent or refuses to provide consent for a reevaluation requiring additional assessments and the public agency does not request mediation or file a due process complaint upon the parent’s failure to respond or refusal, the public agency:

(a) Does not violate any obligations pursuant to NAC 388.215 and 388.330 to 388.440, inclusive, for the conduct of an evaluation or reevaluation of the pupil.

(b) Is not deemed to have knowledge pursuant to 34 C.F.R. § 300.534(c)(1)(i) that a pupil is a pupil with a disability.

3. If a pupil is a ward of the State and the pupil is not residing with the pupil’s parent, the public agency shall make reasonable efforts to obtain the informed consent from the parent of the pupil for an initial evaluation to determine whether the pupil is a pupil with a disability. The public agency is not required to obtain informed consent from the parent of such a pupil for an initial evaluation to determine whether the pupil is a pupil with a disability if:

(a) Despite reasonable efforts to do so, the public agency cannot discover the whereabouts of the parents of the pupil;

(b) The rights of the parents of the pupil have been terminated in accordance with state law; or

(c) The rights of the parents of the pupil to make educational decisions have been subrogated by a judge in accordance with state law and consent for an initial evaluation has been given by a person appointed by the judge to represent the pupil.

4. If the parent of a pupil refuses to consent to the initial receipt of special education and related services or the parent fails to respond to a request to provide such consent, the public agency shall not use the procedural safeguards described in 34 C.F.R. §§ 300.500 to 300.520, inclusive, request mediation pursuant to NAC 388.305 or file a due process complaint pursuant to NAC 388.306 to obtain an agreement or ruling that special education and related services may be provided to the pupil. The public agency shall not be:

(a) Considered to be in violation of the requirement to make available a free appropriate public education to the pupil for the failure to provide such pupil with the special education and related services for which the public agency requests such consent.

(b) Deemed to have knowledge pursuant to 34 C.F.R. § 300.534(c)(1)(i) that a pupil is a pupil with a disability.

(c) Required to convene a meeting relating to an individualized educational program or develop an individualized educational program for the pupil.

5. The parent of a pupil with a disability may withdraw consent in writing for the continued provision of special education and related services for the pupil. If the parent withdraws such consent after the initial provision of special education and related services, the public agency shall not:

(a) Continue providing special education and related services to the pupil, but the public agency shall provide prior written notice pursuant to this section to the parents of the pupil before discontinuing the special education and related services.

(b) Use the procedural safeguards described in 34 C.F.R. §§ 300.500 to 300.520, inclusive, request mediation pursuant to NAC 388.305 or file a due process complaint pursuant to NAC 388.306 to obtain an agreement or ruling that special education or related services continue to be provided to the pupil.

(c) Be considered to be in violation of the requirement to make available a free appropriate public education to the pupil for the failure to provide such pupil with further special education and related services.

(d) Be required to convene a meeting relating to an individualized educational program or otherwise develop an individualized educational program for the pupil for the further provision of special education and related services.

6. Parental consent is not required:

(a) Before existing data is reviewed as part of an initial evaluation or reevaluation;

(b) Before a test or other assessment is administered to all pupils unless, before administration of that test or assessment, consent is required of the parents of all pupils; or

(c) If the public agency demonstrates that it has made reasonable efforts to obtain consent for an additional assessment to be conducted as part of a reevaluation and the pupil’s parents have failed to respond.

7. If the parent of a pupil who is homeschooled or who is placed in a private school at the parent’s own expense refuses to provide consent for the initial evaluation or for a reevaluation requiring additional assessments or the parent fails to respond to a request to provide consent, the public agency shall not use the procedural safeguards described in 34 C.F.R. §§ 300.500 to 300.520, inclusive, request mediation pursuant to NAC 388.305 or file a due process complaint pursuant to NAC 388.306 and the public agency is not required to consider the pupil as eligible for special education and related services pursuant to NAC 388.219.

8. A public agency shall provide the parents of a pupil with a disability with prior written notice as described in subsections 9 and 10 within a reasonable time before any proposed or refused action regarding the:

(a) Placement of the pupil;

(b) Identification or evaluation of any special educational needs of the pupil; or

Ê If a parent does not agree to the proposed or refused action of the public agency, the parent may request mediation pursuant to NAC 388.305 or may file a due process complaint pursuant to NAC 388.306 on the proposed action, or the parent may withhold the consent required by subsection 1, if that subsection applies.

9. The prior written notice of the public agency’s action must be written in language understandable to the general public and in the native language of the parent unless that is clearly not feasible. If the native language or other method of communication of the parent is not a written language, the public agency shall:

(a) Ensure that the notice is read to the parent in the native language or communicated to the parent by another method of communication and that the parent understands the content of the notice; and

(b) Maintain written evidence that the requirements of paragraph (a) have been met.

10. The public agency shall include in the prior written notice required by subsection 8:

(a) A description of the action proposed or refused by the public agency;

(b) An explanation of the reasons for the proposal or refusal;

(d) A description of each evaluation procedure, assessment, record or report upon which the action is based;

(e) A description of other factors which are relevant to the public agency’s proposal or refusal;

(f) A statement that the parents have rights in the matter and, if the notice is not notice of an initial referral for evaluation, the means by which a statement of parental rights can be obtained; and

(g) Sources for parents to contact to obtain assistance in understanding the provisions of state and federal law relating to special education.

11. A public agency shall provide the parents of a pupil with a statement of parental rights once a year and:

(a) When the pupil is initially referred for evaluation or upon parental request for an evaluation;

(b) When the public agency receives the first due process complaint in a school year pursuant to NAC 388.306 from the parents;

(c) When the public agency receives the first state complaint in a school year filed by the parents with the Superintendent pursuant to NAC 388.318;

(d) As required by the provisions of 34 C.F.R. § 300.530(h); and

(e) Upon request by the parents.

Ê The statement of parental rights must explain fully the procedural safeguards listed in 20 U.S.C. § 1415(d)(2) and 34 C.F.R. § 300.504(c) that are available to the parents. A public agency may place a current copy of the statement of the procedural safeguards on the Internet website of the public agency, if applicable.

12. If the public agency makes the notices required pursuant to this section available through electronic means, a parent of a pupil with a disability may elect to receive such notices by electronic mail.

13. For purposes of this section, a public agency has made reasonable efforts to obtain the informed consent of the parents if the public agency has used procedures for notification and documentation consistent with subsection 10 of NAC 388.281.

[Dep’t of Education, eff. 12-15-77] — (NAC A by Bd. of Education, 2-7-83; 7-14-88; 9-13-91; 11-23-93; R039-98, 5-29-98; R085-99, 2-16-2000; R071-05, 2-23-2006; R058-07, 10-31-2007; R030-10, 6-30-2010; R017-18, 1-30-2019)

NAC 388.302 Participation by parent in certain meetings regarding pupil with disability. (NRS 385.080, 388.419)

1. The parent of a pupil with a disability must be afforded an opportunity to participate in meetings relating to the identification, evaluation and educational placement of the pupil, and the provision of a free appropriate education to the pupil. A public agency shall provide notice consistent with the provisions of subsection 8 of NAC 388.281 to ensure that the parent of a pupil is provided sufficient notice to enable the parent to make arrangements to participate in such meetings.

2. If neither parent of a pupil is able to participate in a meeting in which a decision is made relating to the educational placement of the pupil, the public agency shall use other methods to ensure the participation of a parent, including, without limitation, telephone conversations, conference telephone calls or video conferencing.

3. A decision relating to the educational placement of a pupil may be made without the involvement of a parent of the pupil if the public agency is not able to obtain the participation of a parent in the decision. In such a case, the public agency shall record its attempts to obtain the involvement of the parent.

4. For purposes of this section, “meeting” does not include:

(a) Informal or unscheduled conversations involving personnel of the public agency, including, without limitation, conversations relating to teaching methodology, lesson plans or the coordination of services; or

(b) Preparatory activities by personnel of the public agency to develop a proposal or a response to a proposal submitted by the parent which will be discussed at a meeting.

(Added to NAC by Bd. of Education by R058-07, eff. 10-31-2007; A by R017-18, 1-30-2019)

NAC 388.305 Resolution of dispute by mediation; qualifications and list of mediators; payment of costs; enforceability of mediation agreement. (NRS 385.080, 388.419, 388.5267)

1. If a dispute arises between the parent of a pupil and a public agency which relates to the identification, evaluation or educational placement of the pupil or the provision of a free appropriate public education to the pupil, including, without limitation, matters that arise before a due process complaint is filed pursuant to NAC 388.306 or any matter governed by Part B of the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1411 et seq., and the regulations adopted pursuant thereto, the parent or the public agency may request that the Department provide mediation. Mediation is voluntary and either the parent or the public agency may decline to participate.

2. If mediation is requested, the parent involved in the dispute must not be denied the parent’s right to a hearing and the process of mediation must not be used to delay a hearing or to deny any other right afforded pursuant to Part B of the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1411 et seq., and the regulations adopted pursuant thereto.

3. The Department will maintain a list of persons who are qualified mediators and knowledgeable in the laws and regulations relating to the provision of special education and related services. If mediation is requested, the mediation must be conducted by an impartial mediator who is included on the list maintained by the Department. The Department shall select a mediator on a random or rotational basis or by using some other impartial method.

4. A person may serve as a mediator only if the person:

(a) Is trained in effective mediation techniques;

(b) Is not an employee of the public agency that is involved in the education or care of the pupil; and

Ê A person who otherwise qualifies as a mediator is not an employee of the public agency solely because he or she is paid by the agency to serve as a mediator.

5. If mediation is requested:

(a) The Department will pay for the costs of the mediation process; and

(b) Each session of mediation must be scheduled in a timely manner and must be held at a location that is convenient for the parties to the dispute.

6. If the parties resolve a dispute through the mediation process, the parties shall execute a legally binding agreement which sets forth the resolution and which:

(a) States that all discussions that occurred during the mediation process will remain confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding; and

(b) Is signed by both the parent and a representative of the public agency who has the authority to bind the agency.

7. A written, signed mediation agreement is enforceable in any court in this State with competent jurisdiction or in a district court of the United States.

8. Discussions that occur during the mediation process are confidential and must not be used as evidence in any subsequent due process hearing or civil proceeding of any federal court or state court of a state that receives assistance under Part B of the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1411 et seq.

(Added to NAC by Bd. of Education by R039-98, eff. 5-29-98; A by R085-99, 2-16-2000; R058-07, 10-31-2007; R017-18, 1-30-2019)

NAC 388.306 Due process complaint. (NRS 385.080, 388.419, 388.5267)

1. Except as otherwise provided in NAC 388.300, a parent of a pupil or a public agency may file a due process complaint on any matter relating to any proposal or refusal to initiate or change the identification, evaluation or educational placement of the pupil or the provision of a free appropriate public education to the pupil. If the party filing the due process complaint is the parent of a pupil, the parent shall file the due process complaint with the head of the public agency.

2. The Department shall develop a model form for filing a due process complaint and post the model form on the Internet website maintained by the Department. A party may use the model form to file a due process complaint or may use any other form or document that meets the requirements of subsection 3.

3. The party filing the due process complaint, or an attorney representing the party, must provide a copy of the due process complaint to the other party and forward a copy of the due process complaint to the Superintendent at the same time. The due process complaint must include:

(a) The name of the pupil;

(b) The address of the residence of the pupil or, if the pupil is a homeless youth, available contact information for the pupil;

(d) A description of the nature of the problem of the pupil relating to the public agency’s proposal or refusal, including, without limitation, the facts relating to the problem; and

(e) A proposed resolution of the problem to the extent known and available to the party at the time.

Ê A party may not have a hearing until the party, or an attorney representing the party, files a due process complaint that meets the requirements of this subsection.

4. A due process complaint filed pursuant to this section is deemed sufficient unless, within 15 days after receiving the due process complaint, the party receiving the due process complaint submits written notice to the hearing officer and the party who filed the due process complaint that the due process complaint does not meet the requirements of subsection 3.

5. Within 5 days after receipt of a notification pursuant to subsection 4, the hearing officer shall make a determination on the face of the due process complaint whether the due process complaint meets the requirements of subsection 3 and shall immediately provide notice to the parties in writing of his or her determination.

6. A party may amend its due process complaint if:

(a) The party receiving the due process complaint consents in writing to the amendment and is given an opportunity to resolve the problems identified in the due process complaint through a resolution meeting held pursuant to NAC 388.307; or

(b) The hearing officer grants permission not less than 5 days before the hearing.

7. If a party files an amended due process complaint, the time period relating to holding a resolution meeting and the time period for resolving the due process complaint pursuant to NAC 388.307 recommence on the date on which the amended due process complaint is filed.

8. If the public agency has not sent a prior written notice pursuant to NAC 388.300 to the parent regarding the subject matter contained in the parent’s due process complaint, the public agency shall, within 10 days after receiving the due process complaint, send to the parent a response that includes:

(a) An explanation of why the public agency proposed or refused to take the action raised in the due process complaint;

(b) A description of other options that were considered and the reasons for rejecting those options;

(c) A description of each evaluation procedure, assessment, record or report that the public agency used as the basis for the proposed or refused action; and

(d) A description of the other factors that are relevant to the proposed or refused action of the public agency.

Ê A response required pursuant to this subsection does not preclude the public agency from asserting that the due process complaint is insufficient.

9. Unless a response is sent pursuant to subsection 8, the party who receives a due process complaint shall, within 10 days after receiving the due process complaint, send to the other party a response that specifically addresses the issues raised in the due process complaint and file a copy of the response with the hearing officer.

10. Within 5 days after receiving or filing a due process complaint pursuant to subsection 1, the head of the public agency shall request that the Superintendent appoint a hearing officer. The Superintendent, upon receiving such a request, shall:

(a) Appoint an impartial hearing officer from the list of hearing officers maintained by the Department pursuant to NRS 388.463; and

(b) Notify the parties of the appointment.

11. Except as otherwise provided in this section, NAC 388.308 or 20 U.S.C. § 1415(k), or as otherwise agreed by the parties, the pupil must remain in the pupil’s current placement until completion of any administrative or judicial proceedings regarding a due process complaint filed pursuant to this section.

12. If a due process complaint involves an application for a child’s initial admission to a program of a public school, the child, with the consent of the parent, must be placed in a public school until the completion of all the proceedings.

13. If a due process complaint involves an application for initial services for a child who is receiving early intervention services and who is no longer eligible for those services because he or she has attained 3 years of age, the public agency:

(a) Is not required to provide the early intervention services that the child received under an individualized family service plan; and

(b) Shall, if it is determined the child is eligible for special education and related services and the parent consents to the initial provision of special education and related services pursuant to NAC 388.300, provide to the child special education and related services to the extent that those services are not in dispute between the parent and the public agency.

14. If, in an appeal taken pursuant to NAC 388.315, the state review officer agrees with the parents of the pupil that a particular change in the pupil’s current placement is appropriate, the change in placement must be treated as an agreement between the public agency and the parents for the purposes of subsection 11.

15. Except as otherwise provided in this subsection, a parent or a public agency must file a due process complaint pursuant to this section within 2 years after the date on which the parent or public agency knew or should have known about the alleged action that forms the basis of the due process complaint. The time limit for filing a due process complaint does not apply to a parent if:

(a) The parent was prevented from filing a due process complaint due to specific misrepresentations by the public agency that it had resolved the problem forming the basis of the due process complaint; or

(b) The public agency withheld information from the parent that the public agency was required to provide to the parent pursuant to Part B of the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1411 et seq., and the regulations adopted pursuant thereto.

16. The Department shall post the timelines and procedures for conducting due process hearings and appeals pursuant to NAC 388.306 to 388.315, inclusive, on the Internet website maintained by the Department.

(Added to NAC by Bd. of Education by R058-07, eff. 10-31-2007; A by R017-18, 1-30-2019)

NAC 388.307 Resolution meeting; exception; enforceability of agreement. (NRS 385.080, 388.419, 388.5267)

1. Except as otherwise provided in this section and subsection 4 of NAC 388.308, within 15 days after receiving a due process complaint from a parent pursuant to NAC 388.306 and before the initiation of a hearing, the public agency shall convene a resolution meeting with the parent and the relevant members of the individualized educational program committee of the pupil who have specific knowledge of the facts identified in the due process complaint.

2. The parent and the public agency shall determine which members of the individualized educational program committee are relevant because they have specific knowledge of the facts identified in the due process complaint.

3. A representative of the public agency who has the authority to make decisions on behalf of the agency shall attend the resolution meeting.

4. An attorney for the public agency must not attend the resolution meeting unless the parent is accompanied by an attorney.

5. The purpose of the resolution meeting is to allow the parent and the public agency an opportunity to discuss the due process complaint and the facts that form the basis of the due process complaint to give the public agency an opportunity to resolve the dispute that is the basis for the due process complaint.

6. A resolution meeting is not required to be held if:

(a) The parent and the public agency agree in writing to waive the meeting; or

(b) The parent and the public agency agree to use the mediation process set forth in NAC 388.305.

7. Except as otherwise provided in subsection 8, if the due process complaint is not resolved to the satisfaction of the parent within 30 days after the public agency received the due process complaint, the hearing may proceed. Except as otherwise provided in subsection 12 of NAC 388.310, the 45-day timeline for issuing a final decision begins at the expiration of the 30-day period for resolution.

8. Except as otherwise provided in subsection 6, if the parent fails to participate in a resolution meeting, the timelines for the process to resolve the due process complaint and the hearing will be delayed until such time as the parent participates in the meeting. The public agency shall make reasonable efforts to obtain the participation of the parent. The public agency shall be deemed to have made reasonable efforts if the agency provides written notice and makes additional attempts to notify the parent of the meeting, including, without limitation, attempts to notify the parent by telephone or through a visit to his or her home or place of employment. The public agency shall keep detailed records of any telephone calls, correspondence or visits made to the parent’s home or place of employment, including, without limitation, the results of the efforts of the public agency, if any. The parent and the public agency may agree to use alternative means of participation in a meeting by the use of a video conference, a telephone conference call or other means.

9. If the public agency is not able to obtain the participation of the parent in a resolution meeting and the agency has made and documented its reasonable efforts to obtain such participation, the public agency may, not less than 30 days after the public agency received the due process complaint, request that the hearing officer dismiss the due process complaint.

10. If the public agency fails to hold a resolution meeting within 15 days after receipt of a due process complaint or fails to participate in such a meeting, the parent may request that the hearing officer begin the timeline for a due process hearing.

11. If a resolution to the dispute which forms the basis of a due process complaint is reached during a resolution meeting, the parties shall execute a legally binding agreement which:

(a) Must be signed by the parent and a representative of the public agency who has the authority to bind the agency; and

(b) Is enforceable in any court in this State with competent jurisdiction or in a district court of the United States.

Ê A party may void such an agreement within 3 business days after the agreement is executed.

(Added to NAC by Bd. of Education by R058-07, eff. 10-31-2007; A by R017-18, 1-30-2019)

NAC 388.308 Expedited hearing. (NRS 385.080, 388.419, 388.5267)

1. A hearing requested by a parent pursuant to NAC 388.306 must be expedited pursuant to this section if the hearing is to resolve a dispute concerning:

(a) A determination of whether the conduct of the pupil is a manifestation of the disability of the pupil which is made pursuant to paragraph (b) of subsection 3 of NAC 388.265; or

(b) A determination regarding a disciplinary change of placement of a pupil pursuant to 34 C.F.R. §§ 300.530 and 300.531, including, without limitation, the services to be provided in the disciplinary placement or the interim alternative educational setting for services.

2. A hearing requested by a public agency pursuant to NAC 388.306 must be expedited pursuant to this section for a determination regarding the placement of a pupil in an appropriate interim alternative educational setting pursuant to 20 U.S.C. § 1415(k), if the public agency determines that the current placement of the pupil is substantially likely to result in injury to the pupil or others.

3. An expedited hearing must be conducted within 20 school days after the date on which the due process complaint requesting the hearing is filed and must result in a determination within 10 school days after the hearing. Except as otherwise provided in this section, such a hearing and any appeal must be conducted in a manner consistent with the provisions of NAC 388.306 to 388.315, inclusive. A continuance must not be granted if it would extend the time requirements set forth in this subsection.

4. A resolution meeting for an expedited hearing must occur in accordance with NAC 388.307 within 7 days after receipt of the due process complaint requesting the hearing unless the parent and the public agency that is a party to the hearing agree in writing to waive the meeting or to use the mediation process pursuant to NAC 388.305. If a resolution is not reached to the satisfaction of both parties within 15 days after receipt of the due process complaint for a hearing pursuant to this section, the hearing must proceed thereafter within the timelines prescribed in subsection 3.

5. Except as otherwise provided in 20 U.S.C. § 1415(k) or as otherwise agreed to by the parties, if a parent or public agency requests a hearing that is expedited pursuant to this section, the pupil must remain in the pupil’s interim alternative educational setting until:

(a) A decision is rendered by the hearing officer or, if an appeal is taken pursuant to NAC 388.315, the state review officer; or

(b) Expiration of the time period of removal ordered by school personnel in accordance with 34 C.F.R. § 300.530,

Ê whichever occurs first.

(Added to NAC by Bd. of Education by R085-99, eff. 2-16-2000; A by R071-05, 2-23-2006; R058-07, 10-31-2007; R017-18, 1-30-2019)

NAC 388.310 Resolution of dispute by hearing; payment of expenses; qualifications and list of hearing officers; final decision; request for recusal of hearing officer. (NRS 385.080, 388.419, 388.5267)

1. If a parent or public agency files a due process complaint pursuant to NAC 388.306, the public agency shall:

(a) Inform the parent of any free or inexpensive legal services and other relevant services available in the area;

(b) Inform the parent of the right to request a resolution of the dispute through a mediation process pursuant to NAC 388.305; and

2. At the hearing, a party to the hearing may:

(a) Be represented by counsel;

(b) Be accompanied by and advised by persons who have special knowledge of or training regarding the problems of pupils with disabilities;

(d) Object to the introduction of any evidence at the hearing that has not been disclosed to that party at least 5 business days before the hearing;

(e) Call, examine and compel the attendance of witnesses, including, without limitation, by requesting that the hearing officer ensure the issuance of a subpoena pursuant to NRS 388.469 to compel the attendance of witnesses, the giving of testimony and the production of books and papers at the hearing if such evidence is relevant to the issues in the due process complaint and will not be produced voluntarily; and

(f) Confront and cross-examine witnesses.

3. At the hearing, the parent has the right to:

(a) Have the pupil present; and

(b) Have the hearing open to the general public.

4. The parent may examine the education records of the pupil pursuant to NAC 388.287 before the hearing.

5. Not less than 5 business days before a hearing, each party shall disclose to all other parties all evidence, all evaluations completed by that date and all recommendations based on the evaluations that the party intends to use at the hearing. Unless the opposing party consents, a hearing officer:

(a) May prohibit any party that fails to comply with the requirements of this subsection to disclose an evaluation or recommendation from introducing evaluations or recommendations based on evaluations that have not been disclosed to the opposing party at least 5 business days before the hearing; and

(b) Shall prohibit any party that fails to comply with the requirements of this subsection to disclose any evidence, other than an evaluation or recommendation, from introducing such evidence that has not been disclosed to the opposing party at least 5 business days before the hearing.

6. The party who filed the due process complaint pursuant to NAC 388.306 may not raise an issue at the hearing if the issue was not included in the due process complaint unless the parties otherwise agree.

7. The public agency shall make a verbatim record of the hearing either in writing or, at the option of the parent, by electronic means. The record must be made available to any party to the hearing, and the public agency shall provide a copy of the record to the parent at no cost.

8. The public agency shall take whatever action is necessary to ensure that the parent understands the proceedings at the hearing, including arranging for an interpreter for a parent who is deaf or whose native language is not English.

9. The hearing officer shall transmit the written findings of fact and decision prepared pursuant to subsection 12 to the parties. After removing any personally identifiable information of the pupil, the Department shall transmit the findings of fact and decision to the Special Education Advisory Committee of the Department and make the findings of fact and decision available for public inspection by posting the findings of fact and decision on the Internet website maintained by the Department.

10. The hearing must be held at a time and place reasonably convenient to the parent and the pupil involved. The hearing officer shall notify the parties of the time and place of the hearing.

11. The hearing officer shall base the decision solely on the evidence admitted at the hearing. Subject to the limitations set forth in this subsection, a decision made by a hearing officer of whether a pupil received a free appropriate public education must be made on substantive grounds. In a matter alleging a procedural violation, a hearing officer may find that a pupil did not receive a free appropriate public education only if the procedural inadequacies:

(a) Impeded the pupil’s right to a free appropriate public education;

(b) Significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the pupil; or

Ê This subsection does not preclude a hearing officer from ordering a public agency to comply with the procedural requirements established in 34 C.F.R. §§ 300.500 to 300.536, inclusive.

12. Except as otherwise provided in this subsection and NAC 388.307, the hearing officer shall render the findings of fact and decision in writing and mail a copy of the decision to the parties within 45 days after the date on which one of the following occurs:

(a) The parties agree in writing to waive the resolution meeting required pursuant to NAC 388.307;

(b) The parties agree in writing that an agreement is not possible through mediation or a resolution meeting and such agreement is reached after the beginning of either the mediation or resolution meeting but before the end of the 30-day period for resolution; or

(c) The parties agree in writing to continue mediation upon the expiration of the 30-day period for resolution and a party subsequently withdraws from the mediation process.

Ê Except as otherwise provided in NAC 388.308 for expedited hearings, the hearing officer may extend the time for rendering a decision for a specific number of days upon the request of either party for good cause.

13. The Department shall make the written findings of fact and decision available to any party to the hearing. At the option of a parent, the findings of fact and decision must be made available to the parent by electronic means. The Department shall provide the findings of fact and decision to the parent at no cost.

14. The public agency shall pay the expenses of the hearing officer and any other expenses of the hearing, including, without limitation, any costs incurred pursuant to subsections 7 and 8, using a method that avoids a conflict of interest or the appearance thereof.

15. The hearing officer must:

(a) Not be an employee of the public agency that is involved in the education or care of the pupil;

(b) Not have a personal or professional interest which would conflict with the hearing officer’s objectivity;

(c) Possess knowledge of and the ability to understand the provisions of the Individuals with Disabilities Education Act, federal and state regulations pertaining to the Act and legal interpretations of the Act by federal and state courts;

(d) Possess the knowledge and ability to conduct hearings in accordance with the appropriate standards of the legal practice; and

(e) Possess the knowledge and ability to render and write decisions in accordance with the appropriate standards of the legal practice.

Ê A person who otherwise qualifies as a hearing officer is not an employee of the public agency solely because he or she is paid by the public agency to serve as a hearing officer.

16. The Department shall maintain a list of hearing officers and their qualifications. Each calendar year, the Department will provide a copy of the list to each public agency. To remain on the list, a hearing officer must:

(a) Meet the qualifications prescribed by 20 U.S.C. § 1415(f)(3)(A) and the regulations adopted pursuant thereto;

(b) Before being placed on the list or within the first year that the hearing officer appears on the list, complete at least 40 hours of training, including, without limitation, 24 hours of training concerning laws relating to special education which must include, without limitation:

(1) Part B of the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1411 et seq., and the regulations adopted pursuant thereto;

(2) NRS 388.417 to 388.5243, inclusive, and NAC 388.001 to 388.450, inclusive; and

(3) Legal interpretations of those laws and regulations by state and federal courts; and

(c) Complete annual training arranged by the Department, including, without limitation, training concerning laws relating to special education, the procedure for conducting a hearing and rendering and writing a decision.

17. The decision of a hearing officer pursuant to this section is final unless the decision is appealed pursuant to NAC 388.315. If the decision is rendered in favor of the public agency on a due process complaint, the public agency may proceed without the consent of the parents pursuant to the decision of the hearing officer.

18. A party to a pending due process complaint may request the recusal of a hearing officer on the basis of bias or a conflict of interest by motion to the hearing officer. The hearing officer shall timely rule on such a motion by written order.

NAC 388.315 Appeal from decision of hearing officer; transmittal and public availability of findings of fact and decision. (NRS 385.080, 388.419, 388.5267)

1. A party may appeal from the decision of a hearing officer made pursuant to NAC 388.310 by filing with the Superintendent a notice of appeal which identifies the specific findings and conclusions being appealed and forwarding a copy of the notice of appeal to the other parties within 30 days after receiving the decision. A party to the hearing may file a cross appeal by filing a notice of cross appeal with the Superintendent which identifies the specific findings and conclusions being appealed and forwarding a copy of the notice of cross appeal to the other parties within 10 days after receiving notice of the initial appeal. If an appeal is filed, a state review officer appointed by the Superintendent from a list of officers maintained by the Department shall conduct an impartial review of the hearing. The state review officer conducting the review shall:

(a) Examine the entire record of the hearing;

(b) Ensure that the procedures at the hearing were consistent with the requirements of due process;

(c) Seek any additional evidence necessary and, if a hearing is held to receive additional evidence, afford the parties the rights set forth in NAC 388.310;

(d) Afford the parties an opportunity for oral or written argument, or both, at the discretion of the reviewing officer;

(e) Schedule any oral arguments at a time and place which is reasonably convenient to the parent and pupil involved;

(f) Make an independent decision on the completion of the review; and

(g) Except as otherwise provided in this paragraph, mail copies of the written findings of fact and decision to the parties within 30 days after the notice of appeal was filed with the Superintendent. The state review officer may extend the time for rendering a decision for a specific number of days upon the request of either party for good cause. At the option of the parent, the findings of fact and decision must be made available to the parent by electronic means. The Department shall provide a copy of the findings of fact and decision to the parent at no cost.

2. The decision of the state review officer is final unless a party brings an action pursuant to subsection 3.

3. A party may appeal from the decision of the state review officer by initiating a civil action in a court of competent jurisdiction within 90 days after receipt of the decision of the state review officer.

4. After removing any personally identifiable information of the pupil, the Department shall transmit the written findings of fact and decision to the Special Education Advisory Committee of the Department and make the findings of fact and decision available for public inspection by posting the findings of fact and decision on the Internet website maintained by the Department.

(Added to NAC by Bd. of Education, eff. 2-7-83; A 7-14-88; 9-13-91; 11-23-93; 1-26-94; R039-98, 5-29-98; R085-99, 2-16-2000; R071-05, 2-23-2006; R058-07, 10-31-2007; R017-18, 1-30-2019)

NAC 388.318 State complaints to Department; final administrative decision. (NRS 385.080, 388.419)

1. A person, as the term is defined in NRS 0.039, including a person outside this State, may file a state complaint with the Superintendent alleging that a public agency has violated a provision of:

(a) Part B of the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1411 et seq., or the regulations adopted pursuant thereto; or

(b) NRS 388.417 to 388.5243, inclusive, or NAC 388.001 to 388.450, inclusive.

2. The state complaint must be:

(a) In writing and must be signed by the person filing the state complaint.

(b) Filed with the Superintendent not more than 1 year after the date on which the alleged violation occurred.

3. The Department shall develop a model form for filing a state complaint pursuant to this section. A person may use the model form to file a state complaint or may use any other form or document that meets the requirements of subsection 4.

4. The state complaint must include:

(a) A statement that a public agency has violated a provision described in subsection 1;

(b) The facts on which the statement is based;

(d) If alleging a violation regarding a specific pupil:

(1) The name of the pupil;

(2) The address of the residence of the pupil or, if the pupil is a homeless youth, any available contact information for the pupil;

(3) The name of the school the pupil is attending;

(4) A description of the nature of the problem of the pupil relating to the public agency’s alleged violation, including, without limitation, the facts relating to the problem; and

(5) A proposed resolution of the problem to the extent known and available to the party at the time the state complaint is filed.

Ê The party filing the state complaint shall forward a copy of the state complaint to the public agency at the same time that the state complaint is filed with the Superintendent.

5. As soon as practicable, the Superintendent shall forward the state complaint to the Department for review. Except as otherwise provided in subsection 6, within 60 days after receipt of the signed written state complaint, the Department shall:

(a) If the Department deems it necessary, carry out an independent on-site investigation of the allegations contained in the state complaint;

(b) Provide an opportunity for the complainant to submit additional information, either orally or in writing, regarding the allegations contained in the state complaint;

(1) At the discretion of the public agency, an opportunity to propose a resolution to the allegations contained in the state complaint; and

(2) An opportunity to engage the parent, if the parent is the complainant, in voluntary mediation pursuant to NAC 388.305;

(d) Review all relevant information and make an independent determination regarding the allegations contained in the state complaint as to whether the public agency is violating a requirement of a law or regulation described in subsection 1; and

(e) Issue a written decision to the complainant that addresses each allegation contained in the state complaint and that includes:

(1) Findings of fact and conclusions; and

(2) The reasoning of the Department for the decision.

6. The Department may extend the time period set forth in subsection 5 if:

(a) Exceptional circumstances exist with regard to a particular state complaint; or

(b) A complainant who is a parent of a pupil and the public agency agree to extend the time to allow for mediation or other means of alternative dispute resolution.

7. The Department shall maintain procedures for effective implementation of the final decision, including, without limitation, technical assistance activities, negotiations and corrective actions to achieve compliance.

8. In resolving a state complaint in which the Department has found that a public agency failed to provide appropriate services, the Department shall address the failure, including, without limitation, by requiring corrective action which is appropriate to address the needs of the pupil, such as compensatory services or monetary reimbursements, and by requiring that appropriate services are provided to all pupils with disabilities served by the public agency.

9. A public agency that receives an order pursuant to this section shall take the actions prescribed in the order and provide to the Department documentation of all actions taken in accordance with the order.

10. A written decision issued pursuant to subsection 5 is a final administrative decision of the Department. A person who files a state complaint pursuant to this section is not prohibited from filing a due process complaint pursuant to NAC 388.306.

(Added to NAC by Bd. of Education by R085-99, eff. 2-16-2000; A by R071-05, 2-23-2006; R058-07, 10-31-2007; R017-18, 1-30-2019)

NAC 388.319 Contingency Account for Special Education Services: Eligibility of school district or charter school for reimbursement of certain expenses for special education services. (NRS 385.080, 388.5243)

1. An expense incurred by a school district or charter school is eligible for reimbursement from the Contingency Account for Special Education Services pursuant to NRS 388.5243 if:

(a) The expense is for special education, related services, supplementary aids and services or transition services provided to a pupil with significant disabilities;

(b) The school district or charter school has determined that the pupil to whom the services are provided is eligible to receive special education and related services pursuant to NRS 388.417 to 388.515, inclusive;

(c) The Superintendent of Public Instruction determines that the total cost of special education, related services, supplementary aids and services and transition services provided to the pupil exceeds the total funding available to the school district or charter school for the pupil;

(d) The services are set forth in an individualized education program developed by the school district or charter school for the pupil in accordance with NRS 388.419; and

(e) The school district or charter school has not received reimbursement for the expense from any other source.

2. As used in this section and NRS 388.5243, “pupil with significant disabilities” means a pupil with a disability:

(a) To whom special education, related services, supplementary aids and services or transition services are provided; and

(b) For whom the Superintendent of Public Instruction determines pursuant to paragraph (c) of subsection 1 that the total cost of services described in paragraph (a) that are provided to the pupil exceeds the total funding available to the school district or charter school for the pupil.

3. As used in this section:

(a) “Pupil with a disability” has the meaning ascribed to it in NAC 388.093.

(b) “Related services” has the meaning ascribed to it in NAC 388.101.

(d) “Supplementary aids and services” has the meaning ascribed to it in NAC 388.132.

(e) “Transition services” has the meaning ascribed to it in NAC 388.133.

(Added to NAC by Bd. of Education by R032-16, eff. 9-9-2016)

NAC 388.323 Contingency Account for Special Education Services: Application for reimbursement of certain expenses; approval or denial of application; decision not subject to review. (NRS 385.080, 388.5243)

1. A school district or charter school may apply to the Department for reimbursement from the Contingency Account for Special Education Services pursuant to NRS 388.5243 by submitting an application in the form prescribed by the Department.

2. The application must:

(a) Clearly identify the services for which reimbursement is requested; and

(b) Include, without limitation, documentation of all such services and their respective expenses, and any other information required by the Department.

3. The Department shall review and approve or deny a completed application for reimbursement and give notice of its decision to the applicant. The Department may deny an application, wholly or in part, if it determines that the expense for which reimbursement is requested is excessive, unsubstantiated or not eligible for reimbursement pursuant to NAC 388.319.

4. If the Department approves an application for reimbursement, the Department shall clearly identify each expense or category of expenses for which reimbursement is approved. For any expense that has not been incurred as of the date the application is approved, the Department shall disburse the reimbursement as the expense is actually incurred.

5. A decision of the Department approving or disapproving an application for reimbursement, including, without limitation, that part of a decision establishing the amount of an approved reimbursement, is not subject to administrative or judicial review.

(Added to NAC by Bd. of Education by R032-16, eff. 9-9-2016)

Determination of Eligibility for Placement of Pupils With Disabilities and Gifted and Talented Pupils

NAC 388.325 Provision of targeted scientific, research-based intervention for pupil with academic or behavioral difficulty; intervention plan; notice to parents concerning right to request evaluation to determine eligibility for special education. (NRS 385.080, 388.419, 388.433)

1. If a pupil is experiencing an academic or behavioral difficulty but is not suspected of having a disability by the public agency, the public agency may attempt to remediate such a difficulty through targeted scientific, research-based intervention.

2. If the public agency determines that a pupil should be provided targeted scientific, research-based intervention, the public agency shall develop an intervention plan for the pupil which must include, without limitation:

(a) An identification of the academic or behavioral concerns which describes the degree of discrepancy between the demands of the educational setting and the performance of the pupil;

(b) The targeted scientific, research-based intervention to be provided which must be:

(1) Based upon an examination of the characteristics of the pupil as a learner, the instruction being provided and the curricular tasks to be accomplished by the pupil; and

(2) Targeted to improve the level of performance and increase the rate of learning of the pupil;

(c) A description of the progress-monitoring data which will be collected over time to measure the level of performance and rate of learning of the pupil; and

(d) A description of the frequency at which the data will be collected, the strategies which will be used to summarize and evaluate the data, the criteria for evaluating the effectiveness of the intervention and the schedule for evaluating the effectiveness of the intervention.

Ê A copy of the intervention plan must be provided to the parents of the pupil.

3. The public agency shall notify the parents of the pupil concerning the right of the parent to request an evaluation to determine whether the pupil is eligible for special education and related services.

4. Based in part on the results of the targeted scientific, research-based intervention, the public agency shall determine whether the pupil is suspected of having a disability and should be evaluated in accordance with NAC 388.330 to 388.440, inclusive.

5. During the period in which targeted scientific, research-based intervention is being provided, a parent of the pupil may ask for an initial evaluation of the pupil if the parent suspects that the pupil has a disability and may qualify for special education and related services pursuant to NAC 388.330 to 388.440, inclusive. If the public agency suspects the pupil has a disability, the public agency shall not refuse to conduct the initial evaluation or delay the initial evaluation until the targeted scientific, research-based intervention is completed and shall promptly request parental consent to evaluate the pupil. If the public agency disagrees with the parent and does not suspect the pupil has a disability, it may refuse to conduct an evaluation. The public agency shall provide to the parent prior written notice of this refusal in accordance with NAC 388.300, and the parent may request mediation pursuant to NAC 388.305, file a due process complaint pursuant to NAC 388.306 or file a state complaint pursuant to NAC 388.318 to resolve the dispute.

6. If the public agency determines that the academic difficulty or behavior of the pupil is resistant to the targeted scientific, research-based intervention, or if the public agency determines that the targeted scientific, research-based intervention requires continued and substantial effort and may require the provision of special education and related services to be effective, the public agency shall promptly request parental consent and conduct an initial evaluation of the pupil to determine whether the pupil is eligible for special education and related services. Informed parental consent in accordance with subsection 1 of NAC 388.300 must be obtained before the public agency may conduct such an evaluation.

(Added to NAC by Bd. of Education by R085-99, eff. 2-16-2000; A by R058-07, 10-31-2007; R017-18, 1-30-2019)

NAC 388.330 Credentials required to administer or interpret assessment. (NRS 385.080, 388.419, 388.433) Any person responsible for administering or interpreting an assessment pursuant to NAC 388.330 to 388.440, inclusive, must:

1. Possess a license or certificate in the area of the person’s professional discipline; and

2. Be trained in the area of assessment in question.

(Added to NAC by Bd. of Education, eff. 7-14-88; A by R085-99, 2-16-2000)

NAC 388.335 Tests and devices for assessment. (NRS 385.080, 388.419, 388.433) Any test or other device for assessment used pursuant to NAC 388.330 to 388.440, inclusive, must comply with the evaluation procedures set forth in 34 C.F.R. §§ 300.304 to 300.311, inclusive, and NAC 388.340 and 388.420.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 9-13-91; 11-23-93; R071-05, 2-23-2006; R017-18, 1-30-2019)

NAC 388.336 Review of evaluation data; determination of need for additional data. (NRS 385.080, 388.419, 388.433) As part of an initial evaluation if data is available, and as part of any reevaluation, a group that includes the committee that developed or will develop the pupil’s individualized educational program pursuant to NAC 388.281, the members of the eligibility team and any other qualified professionals appointed shall, in accordance with 34 C.F.R. § 300.305:

1. Conduct a review of data from existing evaluations, including, without limitation:

(a) Evaluations and information provided by the parents of the pupil;

(b) Current local or state assessments and classroom-based assessments and observations; and

2. Based upon the review and input from the pupil’s parents, identify the additional data, if any, that is required to determine:

(a) The educational needs of the pupil and whether the pupil has a particular category of disability or, in case of a reevaluation of a pupil, whether the pupil continues to have such a disability;

(b) The present levels of academic achievement and related developmental needs of the pupil;

(c) Whether the pupil needs special education and related services or, in the case of a reevaluation of a pupil, whether the pupil continues to need special education and related services; and

(d) Whether any additions or modifications to the special education and related services are needed to enable the pupil to meet the measurable annual goals set out in the individualized educational program of the pupil and to participate, as appropriate, in the general education curriculum.

Ê The group may conduct its review without a meeting.

(Added to NAC by Bd. of Education by R085-99, eff. 2-16-2000; A by R071-05, 2-23-2006; R058-07, 10-31-2007; R017-18, 1-30-2019)

NAC 388.337 Deadlines for conducting initial evaluations; request for extension; exception. (NRS 385.080, 388.419, 388.433)

1. Except as otherwise provided by subsections 2 and 3, when a public agency determines that good cause exists to evaluate a pupil pursuant to NAC 388.330 to 388.440, inclusive, it shall conduct the initial evaluation within:

(a) Forty-five school days after the parent provides informed written consent;

(b) Forty-five school days after receipt of the decision of a hearing officer pursuant to NAC 388.310 ordering the evaluation or the time set forth in the decision, whichever is shorter; or

2. Upon the request of a public agency, the Superintendent may extend the deadline for conducting initial evaluations for not more than 15 school days.

3. The deadline for conducting an initial evaluation does not apply to a public agency if:

(a) A pupil enrolls in a school served by the public agency after the 45 school day timeframe has begun and before a determination by the pupil’s previous public agency as to whether the pupil is a pupil with a disability, but only if the succeeding public agency is making sufficient progress to ensure a prompt completion of the evaluation and the parent and subsequent public agency agree to a specific time when the evaluation will be completed; or

(b) The parent of the pupil repeatedly fails or refuses to deliver the pupil for the evaluation.

4. For the purposes of this section, “school day” means any day in which pupils enrolled in a school are scheduled to be engaged in registration, classes, other instructional activities or testing during the required minimum daily period for each grade or department.

(Added to NAC by Bd. of Education, eff. 11-23-93; A by R085-99, 2-16-2000; R071-05, 2-23-2006; R017-18, 1-30-2019)

NAC 388.340 Determination of eligibility of pupil and appropriate individualized educational program; termination of eligibility; written report of eligibility team; minority report. (NRS 385.080, 388.419, 388.433)

1. In conducting an evaluation pursuant to NAC 388.330 to 388.440, inclusive, the public agency shall comply with the provisions of 34 C.F.R. §§ 300.304, 300.305 and 300.306 and shall use a variety of assessment tools and strategies to gather relevant functional, developmental and academic information concerning the pupil, including, without limitation, information provided by the parent that may assist in determining:

(a) Whether the pupil is a pupil with a disability; and

(b) The educational needs of the pupil and the content of the pupil’s individualized educational program, including, without limitation, information related to enabling the pupil to be involved in and progress in the general education curriculum or, for preschool children, to participate in appropriate activities.

2. No single measure or assessment may be used as the sole or controlling criterion for determining whether a pupil is a pupil with a disability pursuant to NAC 388.330 to 388.440, inclusive, or for determining an appropriate individualized educational program for the pupil.

3. The public agency shall use technically sound instruments that assess the relative contribution of cognitive, behavioral, physical or developmental factors.

4. The public agency shall ensure that:

(a) Assessments and other evaluation materials used to assess a pupil pursuant to this section are:

(1) Selected and administered so as not to be discriminatory on a racial or cultural basis;

(2) Provided and administered in the language or other communication mode normally used by the pupil in the home or in his or her learning environment and in the form most likely to yield accurate information on what the pupil knows and can do academically, developmentally and functionally, unless it is clearly not feasible to so provide or administer;

(3) Used for purposes for which the assessments or measures are valid and reliable;

(4) Administered by trained and knowledgeable personnel; and

(5) Administered in accordance with any instructions provided by the producer of such assessments;

(b) The pupil is assessed in all areas of suspected disability;

(c) Assessments and other evaluation materials used to assess a pupil pursuant to this section include those tailored to assess specific areas of educational need and not merely those that are designed to provide a single general intelligence quotient;

(d) Assessments are selected and administered in a manner to ensure that, if an assessment is administered to a pupil with impaired sensory, manual or speaking skills, the assessment results accurately reflect the pupil’s aptitude or achievement level or any other factors the test purports to measure rather than reflecting the pupil’s impaired sensory, manual or speaking skills unless those skills are the factors that the test purports to measure;

(e) Assessment tools and strategies that provide relevant information which directly assists persons in determining the educational needs of the pupil are provided; and

(f) Assessments of pupils with disabilities who transfer from one public agency to another public agency in the same academic school year are coordinated with the pupil’s prior and subsequent schools, as necessary and as expeditiously as possible consistent with the provisions of NAC 388.337, to ensure prompt completion of full evaluations.

5. When interpreting evaluation data to determine the eligibility of a pupil for special education and related services pursuant to NAC 388.325 to 388.450, inclusive, and to determine the educational needs of the pupil, the public agency shall:

(a) Draw upon information from a variety of sources, including, without limitation, aptitude and achievement tests, input from the parent of the pupil, recommendations from the teacher of the pupil and any other information about the physical condition, social or cultural background of the pupil and the adaptive behavior of the pupil; and

(b) Ensure that the information obtained from sources pursuant to paragraph (a) is properly documented and carefully considered.

6. In making a determination of the eligibility of the pupil for special education and related services pursuant to NAC 388.330 to 388.440, inclusive, a pupil may not be determined to be a pupil with a disability if the controlling factor for such a determination is one of the following:

(a) Lack of appropriate instruction in reading, including, without limitation, the essential components of reading instruction which includes explicit and systematic instruction in:

(1) Phonemic awareness;

(2) Phonics;

(3) Vocabulary development;

(4) Reading fluency, including, without limitation, oral reading skills; and

(5) Reading comprehension strategies.

(b) Lack of appropriate instruction in math.

7. The screening of a pupil by a teacher or specialist to determine appropriate instructional strategies for curriculum implementation, including, without limitation, an early literacy screening assessment, must not be considered as an evaluation of the pupil pursuant to this section.

8. Except as otherwise provided in this subsection, the public agency must evaluate a pupil with a disability pursuant to NAC 388.330 to 388.440, inclusive, before determining that the pupil is no longer a pupil with a disability. An evaluation is not required to terminate a pupil’s eligibility if the pupil graduates from secondary school with a standard high school diploma or the pupil is no longer under the age of 22 years. The public agency shall provide such a pupil with a written summary of the pupil’s academic achievement and functional performance, including, without limitation, recommendations to assist the pupil in meeting postsecondary goals.

9. Any decision of the eligibility team concerning the eligibility of a pupil for special education and related services pursuant to NAC 388.330 to 388.440, inclusive, must be justified in a written report, to be kept in the records of the pupil maintained by the public agency. The public agency shall provide a copy of the report and any other documentation relating to the determination of the pupil’s eligibility pursuant to this section to the parents of the pupil at no cost.

10. If the members of the eligibility team disagree about the determination of eligibility, a minority report must be prepared if required by paragraph (j) of subsection 8 of NAC 388.420 and may be prepared in any other case.

11. As used in this section, “essential components of reading instruction” means explicit and systematic instruction in:

(a) Phonemic awareness;

(b) Phonics;

(d) Reading fluency, including, without limitation, oral reading skills; and

(e) Reading comprehension strategies.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 11-23-93; R039-98, 5-29-98; R085-99, 2-16-2000; R071-05, 2-23-2006; R058-07, 10-31-2007; R017-18, 1-30-2019)

NAC 388.345 Assessment of cognitive abilities. (NRS 385.080, 388.419, 388.433)

1. An individually administered, standardized test of cognitive ability must be used in assessing the cognitive abilities of a pupil with a disability. If a score other than the total score of the pupil on such a test is used to assess the pupil’s cognitive abilities, the procedure must be justified, on the basis of professionally recognized criteria, in the records of the pupil maintained by the public agency.

2. Except as otherwise provided in this subsection, any interpretation of an assessment of cognitive abilities must be made by a licensed school psychologist or licensed or certified psychologist. In the case of a pupil under the age of 6 years, any such interpretation may be made by a licensed school psychologist or a licensed or certified psychologist with documented training in the assessment of preschool pupils with disabilities.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 11-23-93; R085-99, 2-16-2000)

NAC 388.350 Assessment of social and emotional condition; interpretation of assessment. (NRS 385.080, 388.419, 388.433)

1. Except as otherwise provided in this subsection, if the social and emotional condition of a pupil with a disability is assessed, the assessment may include:

(a) Observation of the pupil;

(b) An interview of the pupil or of any person having personal knowledge of the pupil;

(d) The use of:

(1) A behavior rating scale;

(2) An adaptive behavior scale; and

(3) A self-report inventory.

Ê A pupil may not be identified as a pupil with an emotional disturbance unless a variety of these techniques is used to assess the social and emotional condition of the pupil.

2. Any interpretation of an assessment of social and emotional condition must be made by a psychologist or another certified or licensed mental health professional.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 11-23-93; R085-99, 2-16-2000; R017-18, 1-30-2019)

NAC 388.360 Assessment of adaptive skills. (NRS 385.080, 388.419, 388.433)

1. If the adaptive skills of a pupil with a disability are assessed, the person conducting the assessment must use a validated adaptive behavior scale. The assessment must include an assessment of any six or more of the following:

(a) Communication;

(b) Self-care;

(d) Social skills;

(e) Community use;

(f) Self-direction;

(g) Health and safety;

(h) Functional academics; and

(i) Leisure and work.

2. Any interpretation of an assessment of adaptive skills must be made by a person qualified to assess adaptive skills through the use of an adaptive behavior scale.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 11-23-93; R085-99, 2-16-2000)

NAC 388.365 Assessment of health. (NRS 385.080, 388.419, 388.433)

1. If the health of a pupil with a disability is assessed, the assessment may include:

(a) A review of the developmental history;

(b) Hearing and vision screening;

(d) An audiological assessment;

(e) A physical therapy assessment; and

(f) An occupational therapy assessment,

Ê of the pupil.

2. Any interpretation of an assessment of health must be made by a person qualified to assess the condition in issue.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 11-23-93; R085-99, 2-16-2000)

NAC 388.370 Assessment of speech, language or other communication skills. (NRS 385.080, 388.419, 388.433)

1. If the speech, language or other communication skills of a pupil with a disability are assessed, the assessment may include:

(a) The use of a standardized test of speech, language or other communication skills;

(b) An interview of the pupil or of any person having personal knowledge of the pupil;

(d) The use of information from a parent or teacher of the pupil.

2. Any interpretation of an assessment of speech, language or other communication skills must be made by a speech and language specialist.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 11-23-93; R085-99, 2-16-2000)

NAC 388.375 Assessment of academic achievement; interpretation of assessment. (NRS 385.080, 388.419, 388.433)

1. Except as otherwise provided in subsection 2, if the academic achievement of a pupil with a disability is assessed, the person conducting the assessment may use:

(a) A standardized test of academic achievement;

(b) Curriculum-based assessment; and

2. If the assessment of academic achievement is required to determine the eligibility of the pupil for special education and related services pursuant to NAC 388.330 to 388.440, inclusive, the assessment must be based upon the use of a standardized test.

3. Any interpretation of an assessment of academic achievement must be made by a person qualified to administer individually standardized tests of academic achievement to pupils.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 11-23-93; R085-99, 2-16-2000; R017-18, 1-30-2019)

NAC 388.380 Assessment of performance in current educational setting; interpretation of assessment. (NRS 385.080, 388.419, 388.433)

1. If the performance of a pupil with a disability in the pupil’s current educational setting is assessed, the assessment may include:

(a) Except as otherwise limited by subsection 2, observation of the pupil in that setting;

(b) Review of any report from a parent or teacher of the pupil;

(d) Curriculum-based assessment.

2. If the assessment of performance is required to determine the eligibility of the pupil for special education and related services for pupils with specific learning disabilities, any observation must be conducted as provided in subsection 6 of NAC 388.420.

3. Any interpretation of an assessment of performance in the current educational setting must be made by one or more members of the eligibility team having personal knowledge of the performance of the pupil.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 11-23-93; R085-99, 2-16-2000; R064-08, 9-18-2008; R017-18, 1-30-2019)

NAC 388.385 Assessment of evidence of intervention. (NRS 385.080, 388.419, 388.433) If, with respect to a pupil with a disability, evidence of any intervention is assessed, the assessment may include consideration of the feasibility of:

1. Adapting curriculum materials to the needs of the pupil;

2. Variations in the techniques employed in teaching the pupil;

3. Tutoring of the pupil;

4. Using behavior management programs;

5. Counseling of the pupil; and

6. A change in the educational environment.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 11-23-93; R058-07, 10-31-2007)

NAC 388.386 Assessment of functional behavior; informed parental consent. (NRS 385.080, 388.419, 388.433)

1. If the functional behavior of a pupil is assessed, the assessment must include:

(a) Systematic observation of the occurrence of the targeted behavior for an accurate definition and description of the frequency, duration and intensity of the behavior.

(b) Systematic observation of the events that immediately precede each display of the targeted behavior and are associated with the display of the behavior.

(c) Systematic observation and analysis of the consequences following the display of the targeted behavior to identify the specific environmental or physiological outcomes produced by the behavior in order to determine the function that the behavior serves for the pupil. The communicative intent of the targeted behavior must be identified in terms of what the pupil is either requesting or protesting through the display of the behavior.

(d) Analysis of the settings in which the targeted behavior occurs most frequently. Factors that may be considered include the physical setting, the social setting, the activities and the nature of instruction, scheduling, the quality of communication between the pupil and staff and other pupils, the degree of participation of the pupil in the setting, the amount and quality of social interaction, the degree of choice and the variety of activities.

(e) Review of records for health and medical factors which may influence the targeted behavior, including, without limitation, levels of medication, sleep cycles, health and diet.

(f) Review of the history of the targeted behavior to include the effectiveness of any intervention previously used.

2. Informed written consent must be obtained from the parents of the pupil before conducting an assessment of the functional behavior of a pupil to determine:

(a) Whether the pupil is a pupil with a disability; or

(b) If the pupil is a pupil with a disability, the nature and extent of the needs of the pupil for special education and related services.

3. As used in this section, “targeted behavior” means the particular adaptive or inappropriate behavior of the pupil that the person conducting the assessment monitors in order to promote adaptive behavior and reduce the occurrence of inappropriate behavior.

(Added to NAC by Bd. of Education by R085-99, eff. 2-16-2000; A by R017-18, 1-30-2019)

NAC 388.387 Eligibility of pupil with autism spectrum disorder. (NRS 385.080, 388.419, 388.433)

1. A pupil is eligible for special education and related services if the eligibility team, comprised of the persons set forth in subsection 2, determines that the pupil has an autism spectrum disorder and, by reason thereof, needs special education and related services.

2. The eligibility team must consist of:

(a) A school psychologist.

(b) A teacher of special education or a person with a specialized knowledge of autism spectrum disorder.

(d) A specialist of speech and language.

(e) A parent of the pupil.

(f) If not otherwise a member of the team, one or more persons who have sufficient knowledge of the pupil to interpret information relating to the pupil’s social, emotional, developmental and familial condition. Such persons may include, without limitation, a school administrator, school nurse, school counselor, school psychologist or any other certificated or licensed professional.

3. The eligibility team shall conduct an evaluation of the pupil to determine whether the pupil is eligible for special education and related services pursuant to this section. Such an evaluation must:

(a) Assess the:

(1) Health and medical status;

(2) Developmental history, including, without limitation, the rate and sequence of development and a clear statement of strengths and weaknesses;

(3) Cognitive abilities;

(4) Social and emotional condition in multiple settings;

(5) Academic achievement;

(6) Adaptive skills; and

(7) Speech, language and other communication skills,

Ê of the pupil; and

(b) Consider the:

(1) Sensory regulation;

(2) Self-help and independent living skills;

(3) Behavior problems;

(4) Symbolic and imaginative play;

(5) Activities and special interests; and

(6) Motor skills,

Ê of the pupil.

(Added to NAC by Bd. of Education, eff. 11-23-93; A by R039-98, 5-29-98; R085-99, 2-16-2000; R064-08, 9-18-2008; R017-18, 1-30-2019)

NAC 388.390 Eligibility of pupil with hearing impairment. (NRS 385.080, 388.419, 388.433)

1. Except as otherwise provided in subsection 3, a pupil with a hearing impairment who is deaf is eligible for special education and related services if the eligibility team, comprised of the persons described in subsections 5 and 6, concludes that:

(a) The pupil has a hearing impairment and, by reason thereof, needs special education and related services;

(b) Routine auditory communication is impossible for the pupil, or nearly so, because of the pupil’s inability to discriminate among and understand the sounds that reach the pupil;

(c) The sense of hearing of the pupil is nonfunctional for the ordinary purposes of life, whether as the result of congenital or postlingual deafness; and

(d) The pupil has an average hearing threshold level, at 500, 1,000 and 2,000 Hz, of 92 decibels or more.

Ê As used in this subsection, “nonfunctional for the ordinary purposes of life” means that the pupil does not receive speech sounds clearly enough through hearing, with or without amplification and notwithstanding the fact that he or she may be aware of loud or random noises, to develop language.

2. Except as otherwise provided in subsection 3, a pupil with a hearing impairment who is hard-of-hearing is eligible for special education and related services if the eligibility team concludes that:

(a) The pupil is hard-of-hearing and, by reason thereof, needs special education and related services;

(b) The pupil has the ability, if aided, to hear and understand most spoken words;

(c) The hearing mechanism of the pupil, though defective, is sufficiently functional with or without the use of a hearing aid to allow a receptive flow of information; and

(d) The pupil has an average hearing threshold level of 30 decibels or more.

3. A pupil with a hearing impairment who is deaf or hard-of-hearing is eligible for special education and related services if the eligibility team concludes that the pupil meets the criterion set forth in paragraph (d) of subsection 1 or paragraph (d) of subsection 2, whichever applies, notwithstanding the pupil’s failure to meet the other criteria set forth in subsection 1 or 2.

4. A pupil under the age of 6 years is not ineligible, because of the pupil’s age, for the special education and related services referred to in this section.

5. The eligibility team may include a teacher or specialist in the field of hearing impairment and must consist of a parent of the pupil and not fewer than three persons with expertise in one or more of the following areas:

(a) Audiology or the interpretation of an audiological report.

(b) Hearing impairment.

(1) Health.

(2) Communication skills and disorders.

(3) Academic achievement.

6. If the requirements of subsection 5 are satisfied, one or more of the following persons may serve on the eligibility team:

(a) A regular classroom teacher of the pupil or, if none, a person qualified to teach the pupil.

(b) If not otherwise a member of the team, one or more persons qualified to interpret an assessment of the social or emotional condition of the pupil or of the cognitive abilities of the pupil.

7. The conclusions of the eligibility team concerning the eligibility of the pupil for the special education and related services referred to in this section must be based upon an evaluation of the pupil. The evaluation must include:

(a) A comprehensive audiological examination, including pure tone and speech discrimination tests, performed by an audiologist; and

(b) An assessment of the:

(1) Health of the pupil, which must include a comprehensive examination of vision of the pupil;

(2) Academic achievement of the pupil; and

(3) Speech and language of the pupil.

8. If the requirements of subsection 7 are satisfied, the evaluation of the pupil may include an assessment of the pupil’s cognitive abilities and social and emotional condition.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 11-23-93; R039-98, 5-29-98; R085-99, 2-16-2000; R064-08, 9-18-2008; R017-18, 1-30-2019)

NAC 388.395 Eligibility of pupil with visual impairment. (NRS 385.080, 388.419, 388.433)

1. A pupil with a severe visual impairment is eligible for special education and related services if the eligibility team, comprised of the persons described in subsections 4 and 5, concludes that the pupil has a severe visual impairment and, by reason thereof, needs special education and related services and:

(a) The visual acuity of the pupil does not exceed 20/200 in the better eye;

(b) The vision of the pupil in the better eye is restricted to a field which subtends an arc of not more than 20 degrees; or

(c) The pupil suffers from a progressive deterioration of the pupil’s vision, the probable result of which will be one or both of the conditions described in paragraphs (a) and (b).

2. A pupil with a moderate visual impairment is eligible for special education and related services if the eligibility team concludes that the pupil can use vision as the main channel of learning, that the pupil has a moderate visual impairment and, by reason thereof, needs special education and related services and that:

(a) The visual acuity of the pupil is 20/70 or less in the better eye with the best possible correction; or

(b) The pupil suffers from a progressive deterioration of the pupil’s vision, the probable result of which will be the condition described in paragraph (a).

3. A pupil under the age of 6 years is not ineligible, because of the pupil’s age, for the special education and related services referred to in this section.

4. The eligibility team may include a teacher or specialist in the field of vision impairment and must consist of a parent of the pupil and not fewer than three persons with expertise in one or more of the following areas:

(a) Vision.

(b) Vision impairment.

5. If the requirements of subsection 4 are satisfied, one or more of the following persons may serve on the eligibility team:

(a) A regular classroom teacher of the pupil or, if none, a person qualified to teach the pupil.

(b) If not otherwise a member of the team, one or more persons qualified to interpret an assessment of the social or emotional condition of the pupil or of the cognitive abilities of the pupil.

6. The conclusions of the eligibility team concerning the eligibility of the pupil for the special education and related services referred to in this section must be based upon an evaluation of the pupil. The evaluation must include:

(a) A comprehensive examination of vision of the pupil, performed by an eye specialist; and

(b) An assessment of the health and academic achievement of the pupil.

7. If the requirements of subsection 6 are satisfied, the evaluation of the pupil may include an assessment of the pupil’s cognitive abilities and social and emotional condition.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 11-23-93; R039-98, 5-29-98; R085-99, 2-16-2000; R064-08, 9-18-2008; R017-18, 1-30-2019)

NAC 388.400 Eligibility of pupil with orthopedic impairment. (NRS 385.080, 388.419, 388.433)

1. A pupil with an orthopedic impairment is eligible for special education and related services if the eligibility team, comprised of the persons described in subsection 3, concludes that the pupil suffers from a severe orthopedic impairment which adversely affects the pupil’s educational performance and, by reason thereof, needs special education and related services.

2. To determine whether an orthopedic impairment adversely affects the pupil’s educational performance, an analysis must be conducted of the pupil’s impairment to determine whether he or she can function in a regular classroom.

3. The eligibility team must consist of:

(a) A school nurse or other person qualified to interpret an assessment of the health of the pupil;

(b) A regular classroom teacher of the pupil or, if none, a person qualified to teach the pupil;

(d) One of the following:

(1) A physical therapist;

(2) An occupational therapist; or

(3) Any other specialist whose presence on the team is deemed appropriate; and

(e) If not otherwise a member of the team, one or more persons having personal knowledge of the pupil. Such persons may include, without limitation, a school administrator, school nurse, school counselor, school psychologist or any other certificated or licensed professional.

4. The conclusions of the eligibility team concerning the eligibility of the pupil for the special education and related services referred to in this section must be based upon an evaluation of the pupil. The evaluation must include an assessment of:

(a) The health of the pupil, which must include a physical examination; and

(b) The pupil’s functional limitations in relation to the demands of a regular classroom.

5. If the requirements of subsection 4 are satisfied, the evaluation of the pupil may include an assessment of the need for physical therapy, occupational therapy and an assessment of the pupil’s:

(a) Cognitive abilities;

(b) Social and emotional condition; and

(Added to NAC by Bd. of Education, eff. 7-14-88; A 11-23-93; R039-98, 5-29-98; R085-99, 2-16-2000; R064-08, 9-18-2008; R017-18, 1-30-2019)

NAC 388.402 Eligibility of pupil with health impairment other than orthopedic impairment. (NRS 385.080, 388.419, 388.433)

1. A pupil is eligible for special education and related services if the eligibility team, comprised of the persons described in subsection 3, concludes that the pupil has a health impairment other than an orthopedic impairment which could reasonably be interpreted as adversely affecting the educational performance of a pupil and, by reason thereof, needs special education and related services.

2. As used in subsection 1, “adversely affecting the educational performance of a pupil” includes, without limitation, difficulty concentrating, chronic fatigue and impulsiveness which interfere with a pupil’s ability to be educated.

3. The eligibility team must consist of:

(a) A school psychologist;

(b) A teacher of special education;

(d) A school nurse or other person qualified to interpret an assessment of the health of the pupil;

(e) A parent of the pupil; and

(f) If not otherwise a member of the team, one or more persons with sufficient knowledge of the pupil to interpret information relating to the pupil’s social, emotional, developmental and familial condition. Such persons may include, without limitation, a school administrator, school nurse, school counselor, school psychologist or any other certificated or licensed professional.

4. The eligibility team shall conduct an evaluation of the pupil to determine eligibility for special education and related services pursuant to this section. Such an evaluation must:

(a) Assess the health of the pupil; and

(b) Analyze the ability of the pupil to perform in a regular classroom.

5. The evaluation conducted pursuant to subsection 4 may also include an assessment of the:

(a) Developmental history;

(b) Cognitive abilities;

(d) Academic achievement; and

(e) Language and motor skills,

Ê of the pupil.

(Added to NAC by Bd. of Education, eff. 11-23-93; A by R039-98, 5-29-98; R085-99, 2-16-2000; R064-08, 9-18-2008; R017-18, 1-30-2019)

NAC 388.405 Eligibility of pupil with speech and language impairment. (NRS 385.080, 388.419, 388.433)

1. A pupil with a speech and language impairment is eligible for special education and related services if the eligibility team, comprised of the persons described in subsection 5, concludes that:

(a) The pupil has a speech and language impairment and, by reason thereof, needs special education and related services;

(b) The pupil has demonstrated the ability to profit from speech and language therapy; and

(c) The pupil requires a program of instruction, because of the nature or severity of the pupil’s impairment, which is not feasible in the current educational setting of the pupil because:

(1) Intensive remedial techniques or strategies, which can only be implemented in a clinical or therapeutic setting, are required to improve the communication skills of the pupil;

(2) The nature of the pupil’s impairment requires that the pupil receive the services of a teacher of the speech and language impaired; or

(3) The pupil’s impairment is of such severity or multiplicity that individual or small group management, available only in a speech and language program, is required.

2. For the purposes of this section, an impairment exists if the pupil suffers from a deficit or disorder with respect to:

(a) Phonology or articulation, as indicated by the presence of three or more of the following conditions:

(1) The pupil has the physiological potential to make the neuromuscular adjustments necessary for oral expression;

(2) The communicative ability of the pupil is interfered with by the pupil’s lack of intelligibility;

(3) The pupil cannot adequately discriminate, imitate or sequence sound patterns;

(4) The ability of the pupil to articulate is significantly less than that which is expected in view of the cognitive abilities and level of development of the pupil; or

(5) The deficit or disorder has an adverse social, emotional or academic effect upon the pupil;

(b) The use and comprehension of language, as indicated by the presence of two or more of the following conditions:

(1) The ability of the pupil to comprehend language is significantly less than that which is expected in view of the cognitive abilities and level of development of the pupil;

(2) The use of expressive language by the pupil is significantly less than that which is expected in view of the cognitive abilities and level of development of the pupil;

(3) Pragmatic use of language by the pupil is inappropriate; or

(4) The deficit or disorder has an adverse social, emotional or academic effect upon the pupil;

(1) The speech of the pupil is observed to be dysfluent;

(2) The severity of the deficit or disorder is such that it interferes with communication by the pupil; or

(3) The deficit or disorder has an adverse social, emotional or academic effect upon the pupil; or

(d) The quality, pitch or intensity of the pupil’s voice, as indicated by the presence of two or more of the following conditions:

(1) Voice therapy is recommended by:

(I) A physician; or

(II) Another person certified as a specialist in the identification and treatment of oral, nasal or laryngeal anomalies;

(2) The severity of the deficit or disorder is such that it interferes with communication by the pupil; or

(3) The deficit or disorder has an adverse social, emotional or academic effect upon the pupil.

3. A pupil with limited proficiency in English is eligible for the special education and related services referred to in this section, on the same basis as other pupils, if the pupil’s impairment:

(a) Manifests itself in the pupil’s native language and in English; and

(b) Is not attributable to the phonological system of the pupil’s native language, or to dialectical differences of articulation and language form between that language and English.

4. A pupil under the age of 6 years is not ineligible, because of the age of the pupil, for the special education and related services referred to in this section.

5. The eligibility team must consist of:

(a) A speech and language specialist;

(b) A regular classroom teacher of the pupil or, if none, a person qualified to teach the pupil;

(c) If the pupil has another disability in addition to the pupil’s speech and language impairment, a special education teacher;

(d) A parent of the pupil; and

(e) If not otherwise a member of the team, a person having personal knowledge of the pupil. This person may be, without limitation, a school administrator, school nurse, school counselor, school psychologist or any other certificated or licensed professional.

(a) The performance of the pupil relating to language, articulation, fluency or voice, as relevant to the pupil’s impairment;

(b) The health of the pupil; and

(c) If relevant to the pupil’s eligibility for the special education and related services referred to in this section, the cognitive abilities, academic achievement, and social and emotional condition of the pupil.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 11-23-93; R039-98, 5-29-98; R085-99, 2-16-2000; R064-08, 9-18-2008; R017-18, 1-30-2019)

NAC 388.407 Eligibility of pupil with traumatic brain injury. (NRS 385.080, 388.419, 388.433)

1. A pupil is eligible for special education and related services if the eligibility team, comprised of the persons described in subsection 2, concludes that the pupil has a traumatic brain injury and, by reason thereof, needs special education and related services.

2. The eligibility team must consist of:

(a) A school psychologist;

(b) A teacher of special education or a person with a specialized knowledge of traumatic brain injuries;

(d) A specialist of speech and language;

(e) A school nurse or other person who is qualified to assess the health of the pupil;

(f) A parent of the pupil; and

(g) If not otherwise a member of the team, one or more persons with sufficient knowledge of the pupil to interpret information relating to the social, emotional, developmental and familial condition of the pupil. Such persons may include, without limitation, a school administrator, school nurse, school counselor, school psychologist or any other certificated or licensed professional.

3. In making a determination pursuant to subsection 1, the eligibility team shall consider, without limitation:

(a) Medical documentation of the injury;

(b) The pupil’s educational performance relative to a normative population;

(d) If possible, the pupil’s educational performance before and after the pupil acquired the injury.

4. In addition to the considerations required pursuant to subsection 3, the eligibility team shall conduct an evaluation of the pupil to determine whether the pupil is eligible for special education and related services pursuant to this section. Such an evaluation must assess the:

(a) Health;

(b) Developmental history;

(d) Social and emotional condition;

(e) Academic achievement;

(f) Language and motor skills;

(g) Sensory and perceptual abilities; and

(h) Attention, comprehension, judgment and problem-solving skills,

Ê of the pupil.

(Added to NAC by Bd. of Education, eff. 11-23-93; A by R039-98, 5-29-98; R085-99, 2-16-2000; R064-08, 9-18-2008; R017-18, 1-30-2019)

NAC 388.410 Eligibility of pupil with intellectual disability. (NRS 385.080, 388.419, 388.433)

1. A pupil with a mild intellectual disability is eligible for special education and related services if the eligibility team, comprised of the persons described in subsections 5 and 6, concludes that:

(a) The pupil has a mild intellectual disability and, by reason thereof, needs special education and related services;

(b) The measured cognitive abilities of the pupil, as determined by an acceptable individual standardized test, are at least two standard deviations below the mean score for that test;

(c) The adaptive skills of the pupil, in comparison with those of members of the pupil’s chronological peer group, indicate that the pupil is experiencing difficulty; and

(d) The academic achievement of the pupil is generally consistent with the cognitive abilities and adaptive skills of the pupil.

2. A pupil with a moderate intellectual disability is eligible for special education and related services if the eligibility team concludes that:

(a) The pupil has a moderate intellectual disability and, by reason thereof, needs special education and related services;

(b) The measured cognitive abilities of the pupil, as determined by an acceptable individual standardized test, are at least three standard deviations below the mean score for that test;

(c) The adaptive skills of the pupil, in comparison with those of members of the pupil’s chronological peer group, indicate that the pupil has markedly lower capabilities; and

(d) The academic achievement and speech and language development of the pupil is generally consistent with the cognitive abilities and adaptive skills of the pupil.

3. A pupil with a severe intellectual disability is eligible for special education and related services if the eligibility team concludes that:

(a) The pupil has a severe intellectual disability and, by reason thereof, needs special education and related services;

(b) The measured cognitive abilities of the pupil, as determined by an acceptable individual standardized test, are at least four standard deviations below the mean score for that test;

(c) The adaptive skills of the pupil, in comparison with those of members of the pupil’s chronological peer group, indicate that the pupil has extensively lower capabilities; and

(d) The developmental functioning of the pupil is generally consistent with the cognitive abilities and adaptive skills of the pupil.

4. A pupil with a profound intellectual disability is eligible for special education and related services if the eligibility team concludes that:

(a) The pupil has a profound intellectual disability and, by reason thereof, needs special education and related services;

(b) The measured cognitive abilities of the pupil, as determined by an acceptable individual standardized test, are at least five standard deviations below the mean score for that test;

(c) The adaptive skills of the pupil, in comparison with those of members of the pupil’s chronological peer group, indicate that the pupil has extremely limited capabilities; and

(d) The developmental functioning of the pupil is generally consistent with the cognitive abilities and adaptive skills of the pupil.

5. The eligibility team must consist of:

(a) A school psychologist;

(b) A special education teacher or specialist in the field of intellectual disabilities;

(d) A parent of the pupil; and

(e) If not otherwise a member of the team, one or more persons qualified, because of personal knowledge of the pupil, to interpret:

(1) Assessments of the health and adaptive skills of the pupil; and

(2) Information relating to the family of the pupil.

Ê The person or persons described in this paragraph may be one or more of the persons described in paragraphs (a), (b) and (c) and may, without limitation, be a school administrator, school nurse, school counselor, school psychologist or any other certificated or licensed professional.

6. If the requirements of subsection 5 are met, one or more of the following persons may serve on the eligibility team:

(a) The principal of the school attended by the pupil;

(b) A regular classroom teacher of the pupil or, if none, a person qualified to teach the pupil;

(d) A physical therapist; and

(e) Any other specialist whose presence on the team is deemed appropriate.

(a) The cognitive abilities of the pupil;

(b) The adaptive skills of the pupil, including prevocational and vocational assessments if appropriate;

(d) The academic achievement of the pupil; and

(e) The performance of the pupil relating to speech and language.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 11-23-93; R039-98, 5-29-98; R085-99, 2-16-2000; R064-08, 9-18-2008; R017-18, 1-30-2019)

NAC 388.415 Eligibility of pupil with emotional disturbance. (NRS 385.080, 388.419, 388.433)

1. A pupil with an emotional disturbance is eligible for special education and related services if the eligibility team, comprised of the persons described in subsection 4, concludes that:

(a) The pupil has an emotional disturbance and, by reason thereof, needs special education and related services;

(b) The pupil exhibits one or more of the characteristics described in subsection 2;

(d) The characteristics adversely affect the ability of the pupil to perform developmental tasks appropriate to the pupil’s age:

(1) Within the educational environment, despite the provision of intervention strategies; or

(2) In the case of a pupil under school age, in the home, child care or preschool setting; and

(e) Special education support is required to alleviate these adverse effects.

2. The requirement of paragraph (b) of subsection 1 is satisfied by the consistent manifestation of any of the following characteristics:

(a) An inability of the pupil to build or maintain satisfactory interpersonal relationships within the school environment, including:

(1) Withdrawal and isolation of the pupil from others.

(2) Efforts by the pupil to obtain negative attention from others through punishment, ostracism or excessive approval.

(b) Inappropriate behavior or feelings under normal circumstances, including atypical behavior such as outbursts of anger, crying or head banging, without apparent cause or reason.

(d) Fears or a tendency to develop physical symptoms associated with personal or school problems.

3. A pupil is not eligible for the special education and related services referred to in subsection 1 solely because:

(a) The pupil exhibits the characteristics described in subsection 2 because of sensory, intellectual or health factors; or

(b) The pupil is socially maladjusted or has a conduct problem.

Ê A pupil who is socially maladjusted or has a conduct problem may not be determined to be eligible for special education and related services unless the eligibility team concludes, based upon an evaluation of the pupil, that the pupil meets the criteria of eligibility set forth in NAC 388.330 to 388.440, inclusive.

4. The eligibility team must consist of:

(a) A school psychologist;

(b) A regular classroom teacher of the pupil or, if none, a person qualified to teach the pupil;

(d) A parent of the pupil; and

(e) If not otherwise a member of the team, one or more persons qualified, because of personal knowledge of the pupil, to interpret information relating to the health, development, family, and social and emotional condition of the pupil. This person may be, without limitation, a school administrator, school nurse, school counselor, school psychologist or any other certificated or licensed professional.

5. The conclusions of the eligibility team concerning the eligibility of the pupil for the special education and related services referred to in this section must be based upon an evaluation of the pupil. The evaluation must include an assessment of:

(a) The social and emotional condition of the pupil, based in part upon information from the pupil;

(b) The health and cognitive abilities of the pupil;

(d) Any intervention on behalf of the pupil.

6. As used in this section, “socially maladjusted” and “conduct problem” mean behavior characterized by knowledge of social expectations and intentional disregard of those expectations.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 11-23-93; R039-98, 5-29-98; R085-99, 2-16-2000; R058-07, 10-31-2007; R064-08, 9-18-2008; R017-18, 1-30-2019)

NAC 388.420 Eligibility of pupil with specific learning disabilities; determination of severe discrepancy between achievement and intellectual ability. (NRS 385.080, 388.419, 388.433)

1. A pupil with specific learning disabilities is eligible for special education and related services if the eligibility team, comprised of the persons described in subsection 4, concludes that:

(a) The pupil has a specific learning disability and, by reason thereof, needs special education and related services;

(b) The pupil does not achieve adequately for the pupil’s age or to meet the state-approved grade level standards when provided with learning experiences and instruction appropriate for the age of the pupil in one or more of the following areas:

(1) Oral expression;

(2) Listening comprehension;

(3) Written expression;

(4) Basic reading skills;

(5) Reading fluency skills;

(6) Reading comprehension;

(7) Mathematics calculation; or

(8) Mathematics problem solving;

(1) Does not make sufficient progress to meet the age appropriate standards or the state-approved grade level standards in one or more of the areas set forth in paragraph (b) when using a process based on the pupil’s response to scientific, research-based intervention; or

(2) Exhibits a pattern of strengths and weaknesses in performance or achievement, or both, relative to the pupil’s age, the state-approved grade level standards or intellectual development, that is determined by the eligibility team to be relevant to the identification of a specific learning disability using appropriate assessments;

(d) The findings in this subsection are not primarily the result of:

(1) A visual, hearing or motor disability;

(2) An intellectual disability;

(3) An emotional disturbance;

(4) Cultural factors;

(5) Environmental or economic disadvantage; or

(6) Limited English proficiency;

(e) Interventions implemented in general education classrooms have not remedied any identified underachievement; and

(f) Any identified underachievement or severe discrepancy between achievement and intellectual ability is not correctable without special education and related services.

2. If the public agency determines that a pupil exhibits a pattern of strengths and weaknesses in performance or achievement, or both, relative to the pupil’s age, the state-approved grade level standards or intellectual development, the public agency shall determine whether the pupil has a severe discrepancy between achievement and intellectual ability in the areas set forth in paragraph (b) of subsection 1. Except as otherwise provided in this subsection, if the public agency considers the existence of a discrepancy between achievement and intellectual ability, the discrepancy must be determined through the use of a statistically valid formula, as prescribed by the Department, which takes into account the age and level of ability of the pupil, the correlation between tests of ability and achievement, and the reliability of each test used. The Department shall prescribe this formula on the basis of consultation with an appropriate representative of each public agency affected. In the case of a pupil under the age of 6 years, a discrepancy may be identified through the use of one or more tests of language concepts or academic readiness skills. If the public agency considers the existence of a severe discrepancy between achievement and intellectual ability, the discrepancy between achievement and intellectual ability must be corroborated by classroom-based assessment. If the public agency considers the continuing existence of a severe discrepancy between achievement and intellectual ability in a reevaluation of the pupil, the determination of a severe discrepancy may be made based upon information other than the statistically valid formula prescribed by the Department pursuant to this subsection.

3. If the public agency determines that a pupil has not made sufficient progress to meet the age appropriate standards or the state-approved grade level standards in one or more of the areas set forth in paragraph (b) of subsection 1 when using a process based on the pupil’s response to scientific, research-based intervention, the public agency shall document:

(a) The instructional strategies used and the pupil-centered data collected; and

(b) The notice provided to the parents of the pupil concerning:

(1) The policies of the Department regarding the amount and nature of the data relating to the performance of the pupil that will be collected and the general educational services that will be provided;

(2) Strategies to increase the rate of learning of the pupil; and

(3) The right of the parents to request an evaluation to determine whether the pupil is eligible for special education and related services.

4. The eligibility team must consist of:

(a) A regular classroom teacher of the pupil or, if the pupil does not have a regular teacher, a teacher qualified to teach a pupil of the pupil’s age;

(b) A special education teacher or specialist with knowledge in the area of the suspected disability;

(d) A parent of the pupil; and

(e) If not otherwise a member of the team, one or more persons qualified, because of personal knowledge of the pupil, to interpret information relating to the pupil’s health, family, and social and emotional condition. This person may be, without limitation, a school administrator, school nurse, school counselor, school psychologist or any other certificated or licensed professional.

5. The conclusions of the eligibility team concerning the eligibility of the pupil must be based upon an evaluation of the pupil. The evaluation must include:

(a) An assessment of:

(1) The cognitive abilities of the pupil, if the public agency determines the existence of a severe discrepancy between achievement and intellectual ability;

(2) The social and emotional condition of the pupil;

(3) The academic achievement of the pupil;

(4) The performance of the pupil in the pupil’s current educational setting;

(5) Any scientific, research-based intervention provided to the pupil; and

(6) The health and developmental history of the pupil;

(b) An observation of the academic performance of the pupil as provided in subsection 6; and

(1) Confirmed that the pupil has indicators for dyslexia;

(2) Provided targeted scientific, research-based intervention to the pupil in addition to the early literacy screening assessment required by NRS 388.441; and

(3) Determined that the pupil needs additional screening to determine whether the pupil has a specific learning disability.

6. In determining whether a pupil has a specific learning disability, the eligibility team shall:

(a) Use information from an observation in routine classroom instruction and monitoring of the performance of the pupil that was conducted before the pupil was referred for an evaluation; or

(b) Have at least one member of the eligibility team conduct an observation of the academic progress of the pupil in the regular classroom after the pupil was referred for an evaluation and parental consent is obtained pursuant to NAC 388.300.

Ê If a pupil is less than school age or out of school, an eligibility team member shall observe the pupil in an environment appropriate for a pupil of that age.

7. To ensure that the underachievement of a pupil who is suspected of having a specific learning disability is not due to lack of appropriate instruction in reading or math, the eligibility team shall consider as part of the evaluation:

(a) Data that demonstrates that before, or as part of, the referral process, the pupil was provided appropriate instruction in regular educational settings, delivered by qualified personnel; and

(b) Data-based documentation of repeated assessments of achievement at reasonable intervals that reflects formal assessments of the progress of the pupil during instruction. The documentation must be provided to the parents of the pupil.

8. The eligibility team shall document the determination of eligibility of the pupil which must include:

(a) A statement as to whether the pupil has a specific learning disability;

(b) The basis for making that determination, including an assurance that the determination has been made in accordance with NAC 388.340;

(d) A statement of the relationship of that behavior to the academic functioning of the pupil;

(e) Any educationally relevant medical findings;

(f) A statement as to whether the pupil does not achieve adequately for the pupil’s age or to meet the state-approved grade level standards and whether the pupil:

(1) Has not made sufficient progress to meet the age appropriate standards or the state-approved grade level standards when a process based on the pupil’s response to scientific, research-based intervention is used; or

(2) Exhibits a pattern of strengths and weaknesses in performance or achievement, or both, relative to the pupil’s age, the state-approved grade level standards or intellectual development;

(g) A statement that any identified underachievement or severe discrepancy between achievement and intellectual development is not correctable without special education and related services;

(h) The conclusion of the team concerning the effect upon the achievement of the pupil of any visual disability, hearing disability, motor disability, intellectual disability, emotional disturbance, cultural factors, environmental or economic disadvantage, or limited English proficiency;

(i) If the pupil has participated in a process that assesses the response of the pupil to scientific, research-based intervention:

(1) The instructional strategies used and the pupil-centered data that was collected; and

(2) Documentation that the parents of the pupil were notified about:

(I) The policies of the Department regarding the amount and nature of the data relating to the performance of a pupil that will be collected and the general educational services that will be provided;

(II) Strategies to increase the rate of learning of the pupil; and

(III) The right of the parents to request an evaluation to determine whether the pupil is eligible for special education and related services; and

(j) A certification by each member of the team that the report reflects the member’s conclusions or, if the report does not reflect the conclusions of a member, a minority report of the conclusions of that member.

9. If the public agency considers the continuing existence of a severe discrepancy between predicted and actual achievement in a reevaluation of the pupil, the determination of a severe discrepancy may be made based upon information other than the statistically valid formula prescribed by the Department pursuant to subsection 2.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 11-23-93; R039-98, 5-29-98; R085-99, 2-16-2000; R071-05, 2-23-2006; R058-07, 10-31-2007; R064-08, 9-18-2008; R017-18, 1-30-2019)

NAC 388.425 Eligibility of pupil with multiple impairments. (NRS 385.080, 388.419, 388.433)

1. A pupil with multiple impairments is eligible for special education and related services if the pupil meets the requirements for eligibility set forth in NAC 388.410 for pupils with intellectual disabilities and the eligibility team, comprised of the persons described in subsection 2, concludes that the pupil meets the requirements for eligibility for any additional disabling condition, other than a specific learning disability, developmental delay, deaf-blindness or a speech and language impairment, set forth in NAC 388.330 to 388.440, inclusive.

2. The eligibility team must consist of:

(a) The persons described in subsection 5 of NAC 388.410; and

(b) To the extent their presence on the team is not provided for by paragraph (a), the persons included on the team pursuant to:

(1) Subsection 2 of NAC 388.387;

(2) Subsections 5 and 6 of NAC 388.390;

(3) Subsections 4 and 5 of NAC 388.395;

(4) Subsection 3 of NAC 388.400;

(5) Subsection 3 of NAC 388.402;

(6) Subsection 2 of NAC 388.407; or

(7) Subsection 4 of NAC 388.415,

Ê whichever applies.

3. The conclusions of the eligibility team concerning the eligibility of the pupil for the special education and related services referred to in this section must be based upon an evaluation of the pupil. The evaluation must include an assessment of:

(a) The information described in subsection 7 of NAC 388.410; and

(b) To the extent its assessment is not provided for by paragraph (a), the information included in the assessment pursuant to:

(1) Subsection 3 of NAC 388.387;

(2) Subsections 7 and 8 of NAC 388.390;

(3) Subsections 6 and 7 of NAC 388.395;

(4) Subsections 4 and 5 of NAC 388.400;

(5) Subsections 4 and 5 of NAC 388.402;

(6) Subsections 3 and 4 of NAC 388.407; or

(7) Subsection 5 of NAC 388.415,

Ê whichever applies.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 11-23-93; R039-98, 5-29-98; R085-99, 2-16-2000; R017-18, 1-30-2019)

NAC 388.427 Eligibility of pupil with deaf-blindness. (NRS 385.080, 388.419, 388.433)

1. A pupil with deaf-blindness is eligible for special education and related services if the eligibility team, comprised of the persons described in subsections 4 and 5, concludes that:

(a) The pupil has a hearing impairment which satisfies any one or more of the following criteria:

(1) The pupil has an average hearing threshold level, at 500, 1,000 and 2,000 Hz, of 26 decibels or more; or

(2) The pupil suffers from a progressive deterioration of the pupil’s hearing, the probable result of which will be the condition described in subparagraph (1);

(b) The pupil has a visual impairment which satisfies one or more of the following criteria:

(1) The visual acuity of the pupil does not exceed 20/70 in the better eye with the best possible correction;

(2) The vision of the pupil in the better eye is restricted to a field which subtends an arc of not more than 20 degrees; or

(3) The pupil suffers from a progressive deterioration of the pupil’s vision, the probable result of which will be one or more of the conditions described in subparagraphs (1) and (2); and

2. A pupil under the age of 6 years is not ineligible, because of the pupil’s age, for the special education and related services referred to in this section.

3. A pupil with deaf-blindness may have other disabling conditions in addition to deaf-blindness.

4. The eligibility team must consist of:

(a) A teacher of special education or a regular classroom teacher of the pupil or, if none, a person qualified to teach the pupil;

(b) A speech and language specialist;

(d) A parent of the pupil; and

(e) If not otherwise a member of the team, one or more persons qualified to interpret the comprehensive audiological and vision examinations required by subsection 6.

5. If the requirements of subsection 4 are satisfied, the eligibility team may include one or more persons qualified to interpret an assessment of the social or emotional condition of the pupil or of the cognitive abilities of the pupil.

(a) A comprehensive audiological examination, including pure tone and speech discrimination tests, performed by an audiologist;

(b) An assessment of the:

(1) Health of the pupil;

(2) Academic achievement of the pupil; and

(3) Speech and language of the pupil; and

7. If the requirements of subsection 6 are satisfied, the evaluation of the pupil may include an assessment of the pupil’s cognitive abilities and social and emotional condition.

(Added by NAC by Bd. of Education by R017-18, eff. 1-30-2019)

NAC 388.430 Identification of certain pupils with developmental delays; termination of services. (NRS 385.080, 388.419, 388.433)

1. Except as otherwise provided in subsection 5, a pupil under the age of 6 years may be identified with a developmental delay if the eligibility team, comprised of the persons described in subsections 2 and 3, concludes that the pupil has a developmental delay and, by reason thereof, needs special education and related services and that the pupil demonstrates a delay of at least two standard deviations in one, or at least one standard deviation in two or more, of the following areas:

(a) Receptive or expressive language.

(b) Cognitive abilities.

(d) Self-help.

(e) Social or emotional condition.

2. In a case governed by this section, the eligibility team must consist of:

(a) A special education teacher or specialist in the field of early childhood education;

(b) A licensed school psychologist or a licensed or certified psychologist with documented training in the assessment of preschool pupils with disabilities;

(d) If not otherwise a member of the team, one or more persons qualified, because of personal knowledge of the pupil, to interpret information relating to the pupil’s health, family, and social and emotional condition. This person may be, without limitation, a school administrator, school nurse, school counselor, school psychologist or any other certificated or licensed professional.

3. If the requirements of subsection 2 are satisfied, the eligibility team may include, if not otherwise a member of the team, one or more persons who provide related services, including speech and language therapy, physical or occupational therapy, and psychological services.

4. The conclusions of the eligibility team concerning the identification of the pupil with a developmental delay must be based upon an evaluation of the pupil. The evaluation must include an assessment of the health, developmental functioning, and social and emotional condition of the pupil.

5. In a case governed by this section, a pupil may no longer be identified with a developmental delay if the pupil maintains appropriate developmental functioning in all developmental areas for 6 months or more and the eligibility team concludes that special education services are no longer necessary.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 11-23-93; R039-98, 5-29-98; R085-99, 2-16-2000; R058-07, 10-31-2007; R064-08, 9-18-2008; R017-18, 1-30-2019)

NAC 388.435 Eligibility of pupil who is gifted and talented. (NRS 385.080, 388.5259, 388.5267)

1. Except as otherwise provided in subsection 2, a pupil who is gifted and talented is eligible for special services and programs of instruction if a team, comprised of persons selected by the public agency, concludes that the pupil has:

(a) General intellectual ability or academic aptitude in a specific area that is demonstrated by a score at or above the 98th percentile:

(1) On a test of cognitive ability that is individually administered;

(2) In a major content area on a nationally standardized achievement test that is individually administered in kindergarten through eighth grade; or

(3) In a major content area on a nationally standardized achievement test,

Ê the Preliminary Scholastic Aptitude Test (PSAT), the Scholastic Aptitude Test (SAT) or the American College Test (ACT) that is administered to a group of students for grades 9 through 12, inclusive; or

(b) An area of talent, including, but not limited to, creative thinking, productive thinking, leadership, ability in the visual arts or ability in the performing arts, as determined by the local public agency of the pupil.

2. In determining the eligibility of a pupil for the special services and programs of instruction referred to in this section, the team may use alternative assessment procedures for a pupil from another culture, a pupil who is environmentally or economically deprived or a pupil who has a disability.

3. A pupil under the age of 6 years is not ineligible, because of the pupil’s age, for the special services and programs referred to in this section.

4. The conclusions of the team concerning the eligibility of the pupil for the special services and programs of instruction referred to in this section must be based upon an assessment of the talent, cognitive abilities or academic achievement of the pupil.

5. Unless the pupil’s individualized educational program otherwise provides, a pupil who is gifted and talented must participate in not less than 150 minutes of differentiated educational activities each week during the school year.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 9-13-91; 11-23-93; R085-99, 2-16-2000)

NAC 388.440 Periodic reevaluation of pupil; written report of eligibility team. (NRS 385.080, 388.419, 388.433)

1. A public agency shall ensure that a reevaluation of each pupil with a disability is conducted if the public agency determines that the needs of the pupil for educational or related services, including, without limitation, improved academic achievement and functional performance, warrant a reevaluation or if the parent or teacher of the pupil requests a reevaluation. A reevaluation conducted pursuant to this section shall occur:

(a) Not more than once a year, unless the parent and the authorized representative of the public agency otherwise agree; and

(b) At least once every 3 years, unless the parent and the authorized representative of the public agency agree that a reevaluation is not necessary.

2. If the members of the committee who developed a pupil’s individualized educational program pursuant to NAC 388.281 and other qualified personnel, including, without limitation, members of the eligibility team, determine in accordance with NAC 388.336 that no additional data is needed to determine whether the pupil continues to have a disability and to determine the educational needs of the pupil, the public agency shall notify the parents of the pupil of the public agency’s decision not to conduct additional assessments and the reasons for the decision. The notice must include a statement informing the parents that they may request that an assessment be conducted.

3. Each reevaluation of a pupil must be conducted in the manner prescribed by the committee that developed the individualized educational program for the pupil pursuant to NAC 388.281 and other qualified personnel in accordance with the needs of the pupil. Such a reevaluation also must comply with the requirements set forth in NAC 388.300, 388.330, 388.335, 388.336, 388.340 and 388.420, as appropriate.

4. Upon the completion of the reevaluation, the eligibility team shall issue a written report which includes a statement of any disability found to exist and the basis for any determination of continued eligibility. The public agency shall provide a copy of the report and any other documentation relating to the determination of the eligibility of a pupil pursuant to this section to the parents of the pupil at no cost.

(Added to NAC by Bd. of Education, eff. 7-14-88; A 9-13-91; 11-23-93; R039-98, 5-29-98; R085-99, 2-16-2000; R071-05, 2-23-2006; R058-07, 10-31-2007; R017-18, 1-30-2019)

NAC 388.450 Independent educational evaluation of pupil. (NRS 385.080, 388.419, 388.433)

1. A parent may request that a public agency pay for an independent educational evaluation of a pupil if the parent disagrees with the results of an evaluation obtained by the public agency. The public agency shall, without unnecessary delay, either file a due process complaint pursuant to NAC 388.306 if it believes that its evaluation of the pupil is appropriate, or ensure that an independent educational evaluation is provided at public expense.

2. If, at a hearing conducted pursuant to NAC 388.310, the hearing officer decides that an independent educational evaluation is necessary because the agency’s evaluation was not appropriate, the public agency shall ensure that an independent educational evaluation is provided at public expense. If the hearing officer decides that the evaluation is not necessary because the agency’s evaluation was appropriate, the parent may obtain an independent educational evaluation, but the evaluation will not be provided at public expense.

3. If the parent requests an independent educational evaluation, the public agency shall provide the parent with information as to where an independent educational evaluation may be obtained and the criteria of the agency relating to independent evaluations as set forth in subsection 8.

4. If a parent requests an independent educational evaluation, the public agency may inquire into the reason of the parent for objecting to the public evaluation. The public agency shall not require the parent to provide an explanation and shall not unreasonably delay the independent educational evaluation or delay in filing a due process complaint to request a hearing to defend the public evaluation.

5. A parent is entitled to only one independent educational evaluation at public expense for each time a public agency conducts an evaluation with which the parent disagrees.

6. If an independent educational evaluation is obtained at the personal expense of the parent or at public expense, the public agency shall consider the results of an evaluation if the evaluation meets the criteria of the public agency in any decision made with respect to the provision of a free appropriate public education to the pupil. The results may be presented as evidence at a hearing regarding that pupil in accordance with the provisions of NAC 388.310 which relate to the introduction of evidence.

7. If a hearing officer requests an independent educational evaluation as part of a hearing, the cost of the evaluation must be paid by the public agency pursuant to subsection 14 of NAC 388.310.

8. Whenever an independent educational evaluation is obtained at the public agency’s expense, the criteria established by the public agency for the circumstances under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, must be the same as the public agency uses when it initiates an evaluation, to the extent those criteria are consistent with the parent’s right to such an evaluation. Except as otherwise provided in this subsection, a public agency may not impose conditions or timelines on obtaining an independent educational evaluation at public expense.

(Added to NAC by Bd. of Education, eff. 2-7-83; A 7-14-88; 9-15-89; 9-13-91; 11-23-93; R085-99, 2-16-2000; R058-07, 10-31-2007; R017-18, 1-30-2019)

Program for Persons With Disabilities With Unique Needs

NAC 388.460 Definitions. (NRS 385.080, 388.419) As used in this chapter, unless the context otherwise requires:

1. “Person with a disability” means a person who has:

(a) A hearing impairment;

(b) A visual impairment;

(d) A health impairment;

(e) A speech and language impairment;

(f) An intellectual disability;

(g) An emotional disturbance;

(h) Multiple impairments;

(i) Learning disabilities;

(j) Traumatic brain injury;

(k) An autism spectrum disorder; or

(l) Developmental delays.

2. “Residential school” means an institution, a foster home or other facility which is located in or outside the county school district of a person with a disability and in which he or she receives room and board and special education for his or her particular disability.

3. “Special education program” has the meaning ascribed to it in NRS 388.5219.

[Bd. of Education, Handicapped Persons § 2, eff. 2-12-81] — (NAC A 3-14-96; A by Bd. of Education by R017-18, 1-30-2019) — (Substituted in revision for NAC 395.010)

NAC 388.462 Psychological and educational evaluation of persons with disabilities. (NRS 385.080)

1. A county school district shall conduct a comprehensive psychological and educational evaluation of each person with a disability whom it considers for placement outside the district pursuant to NRS 388.5211 to 388.5243, inclusive.

2. Such an evaluation must be conducted every 3 years or more frequently if conditions warrant or if requested by the person with a disability, his or her parents, parent, guardian or residential school.

[Bd. of Education, Handicapped Persons § 3, eff. 2-12-81] — (NAC A 3-14-96) — (Substituted in revision for NAC 395.020)

NAC 388.464 Individualized educational programs: Preparation; purpose; review or revision. (NRS 385.080)

1. The county school district shall prepare an individualized educational program for each person with a disability whom it considers for placement outside the district.

2. The individualized program aids in determining the person’s eligibility for benefits under NRS 388.5211 to 388.5243, inclusive, and in identifying an appropriate educational program for the person.

3. In any meeting for review or revision of the individualized program, the county school district shall provide for representation from the residential school concerning its special program of education.

[Bd. of Education, Handicapped Persons § 4, eff. 2-12-81] — (NAC A 3-14-96) — (Substituted in revision for NAC 395.030)

NAC 388.466 Determination by administrative staff; application to board of trustees. (NRS 385.080) The administrative staff of a county school district shall determine whether an appropriate educational program is available within the district. If it is determined that there is not a program available, the staff shall verify that all requirements for eligibility set forth in NRS 388.5223 have been met and submit the application to the board of trustees of the district.

[Bd. of Education, Handicapped Persons § 6, eff. 2-12-81] — (NAC A 2-1-85) — (Substituted in revision for NAC 395.040)

NAC 388.468 Submission of documents by board of trustees to Superintendent of Public Instruction. (NRS 385.080) The board of trustees of the county school district shall send the following documents to the Superintendent of Public Instruction:

1. The individualized educational program for the person with a disability.

2. Parental agreement to accept responsibility for the medical, dental and personal expenses of the person with a disability.

3. A signed authorization from the person with a disability, his or her parents, parent or guardian allowing the Department of Education to obtain and release confidential information about the person to other residential schools.

4. The comprehensive evaluation of the person with a disability provided by the school district.

5. A summary of the previous actions taken by the school district to provide an appropriate education for the person with a disability.

[Bd. of Education, Handicapped Persons § 9, eff. 2-12-81] — (NAC A 3-14-96) — (Substituted in revision for NAC 395.060)

NAC 388.470 Receipt of application; Superintendent of Public Instruction authorized to request further evaluation. (NRS 385.080) After receiving the application and supporting documents, the Superintendent of Public Instruction may request that a further evaluation of the person with a disability be conducted at state expense.

[Bd. of Education, Handicapped Persons § 10, eff. 2-12-81] — (NAC A 3-14-96) — (Substituted in revision for NAC 395.080)

NAC 388.472 Confidentiality of records by Department of Education. (NRS 385.080) The Department of Education will keep confidential all records of transactions pertaining to the person with a disability. All information which can be identified as related to the person with a disability will be treated in a secure and confidential manner.

[Bd. of Education, Handicapped Persons § 16, eff. 2-12-81] — (NAC A 3-14-96) — (Substituted in revision for NAC 395.090)

NAC 388.474 Rejection of application. (NRS 385.080) If the Superintendent of Public Instruction does not approve an application, he or she shall return it to the board of trustees of the county school district for reevaluation.

[Bd. of Education, Handicapped Persons § 11, eff. 2-12-81] — (Substituted in revision for NAC 395.100)

NAC 388.476 Approval of application; selection of educational program. (NRS 385.080) Upon approval of an application by the Superintendent of Public Instruction, the Department of Education will select an educational program based on the following criteria:

1. The person must be educated in the least restrictive environment which is appropriate for him or her.

2. The placement must be the least expensive to the State of those possible placements which are equally appropriate.

[Bd. of Education, Handicapped Persons § 12, eff. 2-12-81] — (Substituted in revision for NAC 395.110)

NAC 388.478 Procedure when appropriate educational program not readily available. (NRS 385.080) If an appropriate educational program is not readily available for the person with a disability, the Superintendent of Public Instruction shall so notify the person, his or her parents, parent or guardian and the county school district. The Department of Education will search for an appropriate educational placement for the person until:

1. The person’s placement is accomplished in an appropriate program;

2. The person’s application is withdrawn by his or her parents, parent or guardian; or

3. The person is no longer eligible to receive benefits under NRS 388.5223 to 388.5243, inclusive.

[Bd. of Education, Handicapped Persons § 13, eff. 2-12-81] — (NAC A 3-14-96) — (Substituted in revision for NAC 395.120)

NAC 388.480 Transportation expenses. (NRS 385.080) The Department of Education will provide, by reimbursement, for the expenses of transportation:

1. Of the person with a disability and his or her parents, parent or guardian for the initial trip to a residential school and their return trip home; and

2. Of the person with a disability and one parent or an escort for subsequent trips to and from the residential school at the beginning and ending of each school year and during holidays and recesses scheduled by the school which are of 2 days duration or longer.

[Bd. of Education, Handicapped Persons § 14, eff. 2-12-81] — (NAC A 3-14-96) — (Substituted in revision for NAC 395.130)

NAC 388.482 Annual assessment and report of progress; visit by staff member; license of residence or school required. (NRS 385.080)

1. Each county school district shall, at least annually, determine the progress of each person with a disability from the school district who has received placement pursuant to NRS 388.5223 to 388.5243, inclusive. The school district shall:

(a) Review, at least annually and in accordance with subsection 3 of NAC 388.464, the individualized educational program for the person;

(b) Examine the person’s report cards and other reports of his or her progress; and

2. Staff members of the Department or county school district shall, to review the educational program and placement of such persons with disabilities, conduct a visit at least annually to each place of residence or education in which a person with a disability from the district has been assigned for special education and shall submit to the Superintendent of Public Instruction a report of the visit. The Superintendent shall send a copy of the report to the school district of the person with a disability and to the person’s parents, parent or guardian.

3. No person with a disability will be placed in a residence or school which does not maintain appropriate licenses from the state in which it is located.

[Bd. of Education, Handicapped Persons § 17, eff. 2-12-81] — (NAC A 3-14-96) — (Substituted in revision for NAC 395.140)

NAC 388.484 Proposal of school district to return person with disability to school district; federal money for proposal; restriction on use of money in subsequent years. (NRS 385.080)

1. Each school district shall submit a proposal to the Department of Education describing special education and related services designed to return a person with a disability to the school district and the cost of such services.

2. If federal money is sufficient to pay the cost of the proposal, the Superintendent of Public Instruction shall make the necessary arrangements for the school district to provide the services described in its proposal.

3. Unless authorized by law, federal money provided pursuant to subsection 2 must not be used to pay for special education and related services offered by the school district in subsequent years.

(Added to NAC by Bd. of Education, eff. 3-14-96) — (Substituted in revision for NAC 395.145)

NAC 388.486 Change of address, telephone number or marital status. (NRS 385.080) Each such parent or guardian shall immediately notify the county school district and the Department of Education of any change in his or her address, telephone number or marital status.

[Bd. of Education, Handicapped Persons § 15, eff. 2-12-81] — (Substituted in revision for NAC 395.150)

NAC 388.488 Continuation of benefits: Annual certification and notification by superintendent of school district; determination by Superintendent of Public Instruction; notice of ineligibility. (NRS 385.080)

1. The superintendent of each school district shall annually certify, and notify the board of trustees of the district, with regard to each person with a disability from the school district who is receiving benefits pursuant to NRS 388.5223 to 388.5243, inclusive, that:

(a) The person has an individualized educational program developed in accordance with chapter 388 of NAC; and

(b) After a review of the educational needs of the person and a review of the available resources of the local school district, it has been determined that an appropriate educational program is not available locally and, therefore, the person requires the continuation of benefits.

2. A determination concerning the continued eligibility of a person with a disability for benefits must be made by the Superintendent of Public Instruction based upon the following considerations:

(a) A current individualized educational program that is submitted to the Department of Education by a school district; and

(b) Information provided by the residential school or program attended by the person.

3. Written notification must be provided to the school district if the Superintendent of Public Instruction determines that the person with a disability is no longer eligible for benefits.

[Bd. of Education, Handicapped Persons § 5, eff. 2-12-81] — (NAC A 3-14-96) — (Substituted in revision for NAC 395.160)

Alternative Programs for Pupils at Risk of Dropping Out of School

NAC 388.500 “Alternative program” defined. (NRS 385.080, 388.537) As used in NAC 388.510 and 388.520, unless the context otherwise requires, “alternative program” means a program operated by a school district in accordance with NRS 388.537 for the education of pupils at risk of dropping out of school.

(Added to NAC by Bd. of Education, eff. 11-14-94; A by R134-07, 6-17-2008)

NAC 388.510 General requirements; effective period. (NRS 385.080, 388.537)

1. A plan for an alternative program submitted for approval pursuant to NRS 388.537 must be on a form approved by the Department of Education and must address the considerations set forth in NRS 388.537.

2. A plan for an alternative program that is approved pursuant to NRS 388.537 remains in effect for 5 years after the date of approval. The board of trustees of a school district shall update its plan for an alternative program at least once annually if a substantive change is made to the plan.

(Added to NAC by Bd. of Education, eff. 11-14-94; A by R134-07, 6-17-2008)

NAC 388.520 Plan to provide for independent study. (NRS 385.080, 388.537)

1. An alternative program may include a plan to provide for independent study pursuant to NAC 389.710 to 389.750, inclusive.

2. A plan to provide for independent study must include:

(a) A description of the pupils targeted for enrollment in courses of independent study.

(b) A list of the intended instructors, including an identification of the subject areas that each instructor will teach.

(d) A plan for maintaining the records of each pupil placed for independent study in accordance with the requirements set forth in NAC 389.720.

(e) A statement of the maximum period allowed to complete the courses of independent study.

(f) A statement of the maximum number of credits that a pupil may earn in courses of independent study.

(Added to NAC by Bd. of Education, eff. 11-14-94; A by R134-07, 6-17-2008)

Policy for the Instruction to Teach English to Pupils Who are English Learners

NAC 388.525 “A policy for the instruction to teach English to pupils who are English learners” defined. (NRS 385.080, 388.405) As used in NAC 388.525 to 388.555, inclusive, “a policy for the instruction to teach English to pupils who are English learners” means the policy developed pursuant to NRS 388.407.

(Added to NAC by Bd. of Education by R106-15, eff. 2-27-2018)

NAC 388.530 Required actions of board of trustees in developing policy. (NRS 385.080, 388.405)

1. The board of trustees of each school district shall evaluate relevant research and consult with teachers, administrators, parents, legal guardians and pupils when developing a policy for the instruction to teach English to pupils who are English learners.

2. Such a policy must include, without limitation, the content set forth in NAC 388.535 to 388.555, inclusive.

(Added by NAC Bd. of Education by R106-15, eff. 2-27-2018)

NAC 388.535 Contents and requirements of policy. (NRS 385.080, 388.405) A policy for the instruction to teach English to pupils who are English learners must, without limitation:

1. Include a mission statement that:

(a) Is consistent with state and federal statutes, regulations, policies and guidelines;

(b) Describes the comprehensive approach that will be used by the school district to serve pupils who are English learners; and

(c) Addresses the manner in which services provided to pupils who are English learners are aligned and integrated with the priorities, goals and plans of the school district.

2. Delineate the desired outcomes and expectations of the school district concerning the proficiency in English and academic achievement of pupils who are English learners.

3. Use data, including, without limitation, data reported pursuant to state and federal accountability measures for current and former pupils who are English learners, to:

(a) Design the program for the instruction to teach English to pupils who are English learners;

(b) Allocate resources; and

4. Ensure equitable access to and participation by pupils who are English learners in programs of special education for pupils with disabilities or gifted and talented pupils and include safeguards to ensure the accurate identification of pupils who are English learners for participation in such programs.

5. Provide for an evaluation of the efficacy of specific practices and accommodations used to provide services to pupils who are English learners, including, without limitation, assessment practices.

6. Use definitions of terms and acronyms in a manner which is consistent with state and federal statutes, regulations, policies and guidelines.

7. Identify any existing plan or guide for the delivery of services by the school district to pupils.

(Added to NAC by Bd. of Education by R106-15, eff. 2-27-2018)

NAC 388.540 Identification, assessment and reassessment of pupils. (NRS 385.080, 388.405) A policy for the instruction to teach English to pupils who are English learners must, without limitation:

1. Provide for the initial identification of pupils who are English learners using the standardized statewide entrance and exit procedures for identifying such pupils that are adopted by the Department and approved by the State Board.

2. Provide for the periodic assessment of pupils who are English learners by:

(a) Formally evaluating the proficiency in English and academic achievement of pupils who are English learners, including, without limitation, by annually administering the assessment prescribed by the State Board pursuant to subsection 3 of NRS 390.810; and

(b) Informally evaluating the proficiency in English and academic achievement of pupils who are English learners.

3. Provide for the reassessment of a pupil who is identified as an English learner pursuant to standardized statewide procedures for reassessing such pupils that are adopted by the Department and approved by the State Board.

(Added to NAC by Bd. of Education by R106-15, eff. 2-27-2018)

NAC 388.545 Requirements of provisions relating to human resources decisions and professional development. (NRS 385.080, 388.405) A policy for the instruction to teach English to pupils who are English learners must, without limitation:

1. Ensure that human resources decisions, including, without limitation, decisions concerning staffing, infrastructure and the delineation of roles and opportunities for collaboration, are made with the intent to eliminate gaps in achievement between those pupils who are English learners and pupils who are proficient in English.

2. Identify professional development for teachers and administrators relating to pupils who are English learners.

(Added by NAC by Bd. of Education by R106-15, eff. 2-27-2018)

NAC 388.550 Curriculum; models of instruction and methods of delivering instruction. (NRS 385.080, 388.405) A policy for the instruction to teach English to pupils who are English learners must, without limitation:

1. Provide for the selection of content and English language development curriculum that are based on peer-reviewed research and consider the language development needs of pupils who are English learners. Such content and curriculum must include, without limitation, high quality, rigorous instructional materials and practices that:

(a) Align with the standards of content and performance adopted by the State Board pursuant to NRS 389.520 and any model of instruction or method of delivering instruction identified by the school district; and

(b) Facilitate the development and acquisition of English and provide access to instruction appropriate for pupils who are English learners at each grade level through the use of culturally relevant materials designed to help students build background knowledge.

2. Identify the models of instruction and methods of delivering instruction that are used by the school district to eliminate gaps in achievement between pupils who are English learners and pupils who are proficient in English.

(Added to NAC by Bd. of Education by R106-15, eff. 2-27-2018)

NAC 388.555 Parents and legal guardians: Opportunities for participation; provision of notice and certain information. (NRS 385.080, 388.405) A policy for the instruction to teach English to pupils who are English learners must, without limitation:

1. Provide opportunities for the parent or legal guardian of a pupil who is an English learner to participate in a bilingual program of instruction or a program of instruction that teaches English language acquisition and specify the manner in which the school district will ensure family engagement and participation of parents and legal guardians.

2. Require, to the extent practicable, that any notification to the parent or legal guardian of a pupil who is an English learner prescribed by state or federal law or a policy adopted by the State Board be provided in a language understood by the parent or legal guardian.

3. Provide the parents or legal guardians of pupils who are English learners with information regarding other programs that are designed to improve the language acquisition and academic achievement and proficiency of pupils who are English learners and assist such parents and legal guardians in enrolling those pupils in such programs.

(Added to NAC by Bd. of Education by R106-15, eff. 2-27-2018)

Instruction of Certain Pupils Whose Primary Language Is Not English

NAC 388.600 Definitions. (NRS 385.080, 388.405) As used in NAC 388.600 to 388.655, inclusive, unless the context otherwise requires, the words and terms defined in NAC 388.605, 388.610 and 388.615 have the meanings ascribed to them in those sections.

(Added to NAC by Bd. of Education by R063-97, eff. 12-10-97)

NAC 388.605 “Bilingual program of instruction” defined. (NRS 385.080, 388.405) “Bilingual program of instruction” means a program of instruction for English learners in which pupils are taught the English language and the content of other courses of study is taught using the pupils’ primary language.

(Added to NAC by Bd. of Education by R063-97, eff. 12-10-97)

NAC 388.610 “English learner” defined. (NRS 385.080, 388.405) “English learner” has the meaning ascribed to it in 20 U.S.C. § 7801(20).

(Added to NAC by Bd. of Education by R063-97, eff. 12-10-97; A by R106-15, 2-27-2018)

NAC 388.615 “Program of instruction that teaches English language acquisition” defined. (NRS 385.080, 388.405) “Program of instruction that teaches English language acquisition” means a program of instruction for an English learner which:

1. Provides instruction in the English language and other courses of study using instruction designed for acquiring academic English; and

2. Incorporates the cultural aspects of the pupil’s experiences in his or her instruction.

(Added to NAC by Bd. of Education by R063-97, eff. 12-10-97; A by R106-15, 2-27-2018)

NAC 388.630 Assessment of pupil’s proficiency in his or her primary language. (NRS 385.080, 388.405)

1. Except as otherwise provided in this subsection, each school district shall administer to a pupil who is identified as an English learner pursuant to the policy developed pursuant to NAC 388.540 and who is enrolled in a bilingual program of instruction an examination approved by the Department of Education to assess the proficiency of the pupil to comprehend, speak, read and write his or her primary language. A school district is not required to assess the proficiency of a pupil to read and write his or her primary language if the pupil is enrolled in kindergarten or the first grade or his or her primary language is not commonly written.

2. An assessment administered pursuant to this section must be completed within 60 days after the date on which the pupil enrolls in a school in the district for the first time.

3. An assessment of a pupil’s proficiency to comprehend, speak, read and write his or her primary language must be conducted by a person who is proficient in the primary language of the pupil and who has successfully completed training in the administration and scoring of the examination required for the assessment.

(Added to NAC by Bd. of Education by R063-97, eff. 12-10-97; A by R106-15, 2-27-2018)

NAC 388.635 Assessment and identification of proficiency in English and primary language of pupils with disabilities. (NRS 385.080, 388.405)

1. A school district shall assess and identify a pupil whose primary language is not English and whose eligibility for special services and programs of instruction for pupils with disabilities is being assessed pursuant to NAC 388.330 to 388.440, inclusive, in the manner required by NAC 388.630 and the policy developed pursuant to NAC 388.540. If the multidisciplinary team that is determining the eligibility of the pupil pursuant to NAC 388.330 to 388.440, inclusive, determines that the procedures for the assessments administered pursuant to NAC 388.630 and the policy developed pursuant to NAC 388.540 are inappropriate because of the nature of the disability of the pupil, the district shall use alternative procedures for assessing the proficiency of the pupil to comprehend, speak, read and write English and his or her primary language. The person administering the assessment shall cooperate with the multidisciplinary team to determine the identification of the pupil.

2. A school district shall assess and identify a pupil whose primary language is not English and who is receiving special services and programs of instruction for pupils with disabilities in the manner required by NAC 388.630 and the policy developed pursuant to NAC 388.540. If the committee that develops the individualized educational program for the pupil pursuant to NAC 388.281 determines that the procedures for the assessments are inappropriate because of the nature of the disability of the pupil, the district shall use alternative procedures for assessing the proficiency of the pupil to comprehend, speak, read and write English and his or her primary language. The person administering the assessment shall cooperate with the committee to determine the identification of the pupil.

(Added to NAC by Bd. of Education by R063-97, eff. 12-10-97; A by R106-15, 2-27-2018)

NAC 388.640 Programs of instruction: Availability; notice of eligibility; consent for participation; standards. (NRS 385.080, 388.405)

1. A school district shall make available to each pupil identified as an English learner in accordance with the policy developed pursuant to NAC 388.540 a bilingual program of instruction or a program of instruction that teaches English language acquisition.

2. The school district shall notify the parents or legal guardian of such a pupil of the eligibility of the pupil to participate in such a program of instruction. The notification must be given in the primary language of the parents or legal guardian of the pupil. The pupil may not participate in such a program of instruction without the consent of his or her parents or legal guardian.

3. A bilingual program of instruction or a program of instruction that teaches English language acquisition must:

(a) Be based on a sound educational theory for acquiring English;

(b) Use procedures and allocate resources that are reasonably calculated to carry out that educational theory in an effective manner; and

(Added to NAC by Bd. of Education by R063-97, eff. 12-10-97; A by R106-15, 2-27-2018)

NAC 388.645 Periodic reassessment of pupils; limitations on reidentification. (NRS 385.080, 388.405)

1. A school district may, at any time, but shall, at least once each school year, reassess a pupil who is identified as an English learner pursuant to the policy developed pursuant to NAC 388.540 to determine whether the pupil’s proficiency in English is fluent and the:

(a) Pupil is able to succeed in courses of study that are taught only in English; and

(b) Pupil’s performance on the examinations administered pursuant to NRS 390.105 or the college and career readiness assessment administered pursuant to NRS 390.610 is impacted by his or her level of English proficiency.

2. A pupil may be reidentified pursuant to this section only if:

(a) The pupil’s academic performance and his or her proficiency to comprehend, speak, read and write English is assessed by the pupil’s teacher and the teacher documents his or her rationale for recommending the pupil for courses of study which are taught only in English without further instruction in the English language;

(b) The parents or legal guardian of the pupil is:

(1) Notified, in the primary language of the parents or legal guardian, that the pupil is being considered for reidentification;

(2) Given an opportunity to review the data relating to the performance of the pupil; and

(3) Allowed to participate in the determination of whether the pupil should be reidentified; and

(c) The school district administers to the pupil the assessment prescribed by the State Board pursuant to subsection 3 of NRS 390.810.

3. A reassessment of a pupil’s proficiency to comprehend, speak, read and write English must be administered by a person who is proficient in the language in which the examination is given and who has successfully completed training in the administration and scoring of the examination required for the reassessment.

(Added to NAC by Bd. of Education by R063-97, eff. 12-10-97; A by R042-05, 10-31-2005; R106-15, 2-27-2018)

NAC 388.650 Periodic reassessment of pupils with disabilities; use of alternative procedures for reassessment. (NRS 385.080, 388.405)

1. A school district shall reassess a pupil who is identified as an English learner pursuant to the policy developed pursuant to NAC 388.540 and who is receiving special services and programs of instruction for pupils with disabilities in the manner required by NAC 388.645. The reassessment must be conducted in conjunction with a review of the individualized educational program of the pupil conducted pursuant to NAC 388.281.

2. If the committee that develops the individualized educational program for the pupil pursuant to NAC 388.281 determines that the procedures for the reassessment are inappropriate because of the nature of the disability of the pupil, the district shall use alternative procedures for reassessing the proficiency of the pupil to comprehend, speak, read and write English.

3. The person administering the reassessment shall cooperate with the committee to determine whether the pupil will be reidentified.

(Added to NAC by Bd. of Education by R063-97, eff. 12-10-97; A by R106-15, 2-27-2018)

NAC 388.655 Waiver from certain provisions. (NRS 385.080, 388.405) A school district may apply, in writing, to the Department of Education for a waiver from the provisions of NAC 388.630 to 388.650, inclusive. Upon a showing of good cause and circumstances that are unique to the district, the Department may grant a waiver from any of those provisions.

(Added to NAC by Bd. of Education by R063-97, eff. 12-10-97; A by R106-15, 2-27-2018)

INSTRUCTION IN SUBJECT AREA OF READING IN KINDERGARTEN AND ELEMENTARY SCHOOLS

NAC 388.660 Approved assessments for assessing pupil’s proficiency in subject area of reading. (NRS 385.080, 388.157) For the 2017-2018 school year and each school year thereafter, the State Board hereby approves the following as assessments for assessing a pupil’s proficiency in the subject area of reading:

1. The Brigance Early Childhood Screen III: K & 1 published by Curriculum Associates; and

2. The Measures of Academic Progress (MAP) assessment published by the Northwest Evaluation Association.

(Added to NAC by Bd. of Education by R037-16, eff. 9-9-2016)

NAC 388.662 Required training or professional development for learning strategist. (NRS 385.080, 388.159) A learning strategist shall complete training or professional development concerning:

1. The standards for English language arts for kindergarten and grades 1, 2 and 3 adopted by reference in NAC 389.232, 389.2418, 389.2431 and 389.247;

2. The Nevada State Literacy Plan, in the form most recently published by the Department, which may be obtained free of charge at the Internet address http://www.doe.nv.gov/;

3. Evidence-based best practices for instruction and intervention concerning literacy, including, without limitation, the instruction and intervention required by NRS 392.750 to 392.770, inclusive;

4. Methods for screening for and intervention concerning dyslexia and other reading disabilities, including, without limitation, the screening and intervention described in NRS 388.439, 388.441 and 388.443, the minimum standards prescribed by the State Board for the special education of pupils with dyslexia pursuant to NRS 388.419 and the Dyslexia Resource Guide published by the Department pursuant to NRS 388.447;

5. Using the assessments approved by the State Board in NAC 388.660;

6. Methods for effectively delivering and receiving constructive feedback;

7. Methods for assisting the board of trustees of a school district or the governing body of a charter school, as applicable, to prepare a plan to improve the literacy of pupils enrolled in kindergarten and grades 1, 2 and 3, as required by NRS 388.157, that aligns with the Nevada State Literacy Plan;

8. The statewide performance evaluation system adopted by the State Board pursuant to NRS 391.465; and

9. The national standards for coaching concerning literacy.

(Added to NAC by Bd. of Education by R037-16, eff. 9-9-2016)

NAC 388.664 Required professional development for teachers employed to teach kindergarten or grade 1, 2, 3 or 4. (NRS 385.080, 388.159) A teacher who is employed by a school district or charter school to teach kindergarten or grade 1, 2, 3 or 4 shall complete professional development provided by a learning strategist concerning:

1. The standards for English language arts for kindergarten and grades 1, 2 and 3 adopted by reference in NAC 389.232, 389.2418, 389.2431 and 389.247;

2. The Nevada State Literacy Plan, in the form most recently published by the Department, which may be obtained free of charge at the Internet address http://www.doe.nv.gov/;

3. Evidence-based best practices for instruction and intervention concerning literacy, including, without limitation, the instruction and intervention required by NRS 392.750 to 392.770, inclusive;

5. Using the assessments approved by the State Board in NAC 388.660;

6. Methods for effectively delivering and receiving constructive feedback;

7. Using data concerning pupils to improve instruction concerning literacy; and

8. Methods for maintaining collaborative and reflective communication.

(Added to NAC by Bd. of Education by R037-16, eff. 9-9-2016)

NAC 388.666 Duties of learning strategist. (NRS 385.080, 388.159) A learning strategist shall:

1. Assist and provide leadership to the board of trustees of a school district or the governing body of a charter school, as applicable, in preparing a plan to improve the literacy of pupils enrolled in kindergarten and grades 1, 2 and 3, as required by NRS 388.157;

2. Provide the professional development prescribed by NAC 388.664 for teachers;

3. Provide any necessary additional instruction to teachers and administrators concerning the assessments approved in NAC 388.660; and

4. Provide instruction and support for the parents and guardians of pupils who have been identified as deficient in the subject area of reading.

(Added to NAC by Bd. of Education by R037-16, eff. 9-9-2016)

PROGRAMS OF EDUCATION FOR INCARCERATED PERSONS

NAC 388.670 Definitions. [Replaced in revision by NAC 388H.010.]

NAC 388.672 “Incarcerated persons” defined. [Replaced in revision by NAC 388H.020.]

NAC 388.674 “Program of education” defined. [Replaced in revision by NAC 388H.030.]

NAC 388.676 Establishment of Statewide Program; general requirements for and eligibility to participate in program. [Replaced in revision by NAC 388H.040.]

NAC 388.678 Transfer of incarcerated person to another facility or institution within State; credit for successful completion of course. [Replaced in revision by NAC 388H.050.]

NAC 388.680 Duties of Superintendent of Public Instruction when interagency panel is required to be convened. [Replaced in revision by NAC 388H.060.]

EDUCATIONAL TECHNOLOGY

General Provisions

NAC 388.700 Definitions. (NRS 388.805) As used in NAC 388.700 to 388.780, inclusive, unless the context otherwise requires, the words and terms defined in NAC 388.710, 388.720 and 388.730 have the meanings ascribed to them in those sections.

(Added to NAC by Dep’t of Education by R035-99, eff. 11-3-99)

NAC 388.710 “Commission” defined. (NRS 388.805) “Commission” means the Commission on Educational Technology created pursuant to NRS 388.790.

(Added to NAC by Dep’t of Education by R035-99, eff. 11-3-99)

NAC 388.720 “Department” defined. (NRS 388.805) “Department” means the Department of Education.

(Added to NAC by Dep’t of Education by R035-99, eff. 11-3-99)

NAC 388.730 “Trust Fund” defined. (NRS 388.805) “Trust Fund” means the Trust Fund for Educational Technology created pursuant to NRS 388.800.

(Added to NAC by Dep’t of Education by R035-99, eff. 11-3-99)

Grants of Money From Trust Fund

NAC 388.740 Submission of applications. (NRS 388.805)

1. The Commission will establish the period during which applications may be submitted to the Department by school districts each year for grants of money from the Trust Fund. The deadline for submission of applications must be at least 30 days before the review of the applications by the Commission.

2. For each period during which applications may be submitted, the Commission will establish guidelines for the consideration of applications, including, without limitation, a description of the:

(a) Proposed uses of money for educational technology by school districts that the Commission will consider for approval pursuant to NRS 388.800; and

(b) Terms and conditions of a gift or grant of money accepted by the Superintendent of Public Instruction for deposit in the Trust Fund, if any.

3. The Department will:

(a) Notify each school district of the period for submission of applications and the guidelines established by the Commission; and

(b) Provide, upon the request of a school district, an application for a grant of money from the Trust Fund.

(Added to NAC by Dep’t of Education by R035-99, eff. 11-3-99)

NAC 388.750 Review of applications; notice of approval or denial; distribution of grant. (NRS 388.805)

1. Each year, the Commission will review all applications that are submitted by the deadline established by the Commission pursuant to NAC 388.740.

2. Not later than 10 working days after the review of the applications by the Commission, the Department will provide notice to each school district that submitted an application of the approval or denial of the application.

3. Not later than 30 working days after the review of the applications by the Commission, the Department will distribute a grant of money to each school district whose application was approved.

(Added to NAC by Dep’t of Education by R035-99, eff. 11-3-99)

NAC 388.760 Submission and contents of written report. (NRS 388.805) If a school district receives a grant of money from the Trust Fund, the school district shall, within 1 year after the receipt of money, submit to the Department and the Commission a written report in the format prescribed by the Department. The report must include, without limitation:

1. A statement of the amount of money distributed to the school district;

2. A record of the manner in which the money was expended and the purpose of each such expenditure;

3. All other expenditures made by the school district for similar purposes from money other than the money received from the Trust Fund; and

4. An evaluation of the benefit provided to the teachers and pupils within the school district as a result of the money.

(Added to NAC by Dep’t of Education by R035-99, eff. 11-3-99)

NAC 388.770 Accounting for and use of money. (NRS 388.805) A school district that receives a grant of money from the Trust Fund shall:

1. Account for the money separately; and

2. Use the money to supplement and not replace the money that the school district would otherwise expend for educational technology.

(Added to NAC by Dep’t of Education by R035-99, eff. 11-3-99)

NAC 388.780 Prohibited uses of money. (NRS 388.805) A school district that receives a grant of money from the Trust Fund shall not use the money to:

1. Settle or arbitrate disputes or negotiate settlements between an organization that represents licensed employees of the school district and the school district.

2. Adjust the schedules of salaries and benefits of the employees of the school district.

(Added to NAC by Dep’t of Education by R035-99, eff. 11-3-99)

DISTANCE EDUCATION

NAC 388.800 Definitions. (NRS 388.874) As used in NAC 388.800 to 388.860, inclusive, unless the context otherwise requires, the words and terms defined in NAC 388.805, 388.810 and 388.815 have the meanings ascribed to them in those sections.

(Added to NAC by Bd. of Education by R007-02, eff. 4-5-2002)

NAC 388.805 “Department” defined. (NRS 388.874) “Department” means the Department of Education.

(Added to NAC by Bd. of Education by R007-02, eff. 4-5-2002)

NAC 388.810 “Provider of a course of distance education” defined. (NRS 388.874) “Provider of a course of distance education” means a person or entity, located within this State or in another state, that provides a course of distance education which has been approved for inclusion on the list of approved distance education courses pursuant to NRS 388.834 and NAC 388.825.

(Added to NAC by Bd. of Education by R007-02, eff. 4-5-2002)

NAC 388.815 “Provider of a program of distance education” defined. (NRS 388.874) “Provider of a program of distance education” means a school district or charter school located in this State that provides a program of distance education which has been approved pursuant to NRS 388.838 and NAC 388.830.

(Added to NAC by Bd. of Education by R007-02, eff. 4-5-2002)

NAC 388.820 List of approved courses: Preparation and publication; submission of application for inclusion on list. (NRS 388.874)

1. On January 2 and July 1 of each year, the Department shall prepare and publish a list of approved distance education courses pursuant to NRS 388.834.

2. A person or entity that has developed a course of distance education may submit an application pursuant to NRS 388.834 and NAC 388.825 to the Department for inclusion of the course on the list of approved distance education courses prepared and published by the Department. The Department shall conduct reviews of applications for approval of courses for inclusion on the list twice each year. An application that is received by the Department on or before:

(a) April 1 will be considered for inclusion on the list published by the Department on July 1 of that same year.

(b) October 1 will be considered for inclusion on the list published by the Department on January 2 of the immediately succeeding year.

(Added to NAC by Bd. of Education by R007-02, eff. 4-5-2002)

NAC 388.825 Form and contents of application for inclusion on list of approved courses; approval or denial of application; renewal of application; modification of course. (NRS 388.874)

1. The Department shall prescribe the form for an application for inclusion of a course of distance education on the list of approved distance education courses prepared and published by the Department. The Department shall not accept or review an application for a course that contains a commercial advertisement. Each application must include:

(a) The name of the person or entity that is the provider of the course of distance education;

(b) The original signature of the person or authorized representative of the entity submitting the application;

(c) If applicable, the date on which the application was approved by the board of directors, board of regents, board of trustees or other governing body of the entity that submitted the application;

(d) If applicable, a description of the regional or national accreditation status attained by the entity that submitted the application and the date on which such accreditation was granted; and

(e) For each course identified in the application:

(1) The specific title of the course;

(2) The amount of credit to be awarded for successful completion of the course;

(3) The number of instructional hours provided as part of the course;

(4) A description of the course, including, without limitation, the syllabus for the course, a list of each textbook that will be used for the course and any supplemental materials that will be used for the course;

(5) A description of the method used for delivery of instruction, including, without limitation, the method by which a teacher will meet or otherwise communicate with each pupil enrolled in the course at least once each week to discuss the pupil’s progress;

(6) A description of the manner by which the academic achievement of pupils enrolled in the course will be assessed and the criteria that will be used to determine the grades assigned to pupils who complete the course;

(7) If the subject area offered by the course is a subject area for which the State Board of Education has:

(I) Adopted standards of content and performance pursuant to NRS 389.520, documentation which demonstrates that the course is aligned with those standards; or

(II) Otherwise adopted regulations setting forth the requirements for the subject area offered by the course, documentation which demonstrates that the course is aligned with those requirements;

(8) If available at the time the application is submitted, the name of the teacher who will provide instruction for the course and, if the course is a core academic subject, as defined in NRS 389.018, a copy of the license of the teacher;

(9) If a teacher has not been identified at the time the application is submitted, a description of the qualifications that will be used to employ a teacher for the course; and

(10) The name, address and telephone number of the person who will administer the course.

2. Not more than 45 calendar days after receipt of an application pursuant to this section, the Department shall provide written notice of its approval or denial of the application to the applicant. If an application is denied, the applicant may, not later than 30 calendar days after receipt of the notice of denial, correct the deficiencies identified in the notice of denial and resubmit the application to the Department.

3. Except as otherwise provided in NAC 388.860, if a course is approved pursuant to this section, the approval is valid for 3 years, commencing with the date on which the course is first included on the list of approved distance education courses published by the Department. The Department shall prescribe forms for the renewal of an application. A provider of a course of distance education must submit an application for renewal to the Department at least 60 days before the expiration of the approval to maintain the course on the list of approved distance education courses.

4. If a provider of a course of distance education intends to change or modify the course with regard to the items set forth in subparagraphs (1) to (10), inclusive, of paragraph (e) of subsection 1, the provider shall obtain the written approval of the Department before making such a change or modification. If the provider changes or modifies the course without the approval of the Department pursuant to this subsection, the Department may revoke its approval of the course.

(Added to NAC by Bd. of Education by R007-02, eff. 4-5-2002)

NAC 388.830 Submission and review of application for program; approval or denial of program; period of validity; renewal of application; modification of program; enrollment of pupils in program. (NRS 385.080, 388.874, 388A.105, 388A.110, 388A.168, 390.105, 390.600, 390.700)

1. The Department shall engage in the process of reviewing applications for programs of distance education not less than once per year. An application must be received by the Department from the board of trustees of a school district or a governing body of a charter school on or before January 15 for consideration of a program that will begin operation in the immediately succeeding school year. An application must be received by the Department from a committee to form a new charter school on or before September 1 for a program that will begin operation in the immediately succeeding school year.

2. The Department shall prescribe the form for the application. An application must include:

(a) The name of the school district or charter school submitting the application;

(b) The date on which the board of trustees of the school district, the governing body of the charter school or the committee to form a charter school, as applicable, reviewed and approved the application;

(c) The original signature of the president of the board of trustees, or his or her designee, a member of the governing body of the charter school or a member of the committee to form a charter school, as applicable, indicating approval of the application;

(d) The name, address and telephone number of the person who will administer the program of distance education;

(e) A list designating each course of distance education that will be offered through the program;

(f) If a course of distance education that will be offered through the program is included on the list of approved distance education courses prepared by the Department, an identification of each course, including, without limitation, the title of the course and the name of the provider of the course of distance education;

(g) If a course of distance education that will be offered through the program is not included on the list of approved distance education courses prepared by the Department, the information required by subparagraphs (1) to (10), inclusive, of paragraph (e) of subsection 1 of NAC 388.825;

(h) A description of the manner by which the school district or charter school will document the attendance and participation of each pupil who is enrolled in a course offered through the program, consistent with the provisions of NAC 387.193 and 387.294;

(i) A description of the criteria that will be used to enroll pupils in the program, including, without limitation, the manner by which the eligibility of each pupil for enrollment will be determined and documented in compliance with NRS 388.850;

(j) A description of the plan for assessing the academic achievement of pupils who are enrolled in the program, which must include, without limitation, the administration of the examinations required by NRS 390.105 and 390.700;

(k) A description of the manner by which the school district or charter school will document the completion of a course by a pupil enrolled in the program and award credit to each pupil who completes a course; and

(l) A description of the manner by which the school district or charter school will monitor the progress of each pupil enrolled in the program, including, without limitation:

(1) A method for identifying pupils who are experiencing difficulty with completing assignments or who are otherwise not demonstrating satisfactory progress; and

(2) The assistance or support that will be provided to pupils identified pursuant to subparagraph (1) in addition to any assistance or support offered by the provider of the course of distance education.

3. If a school district or charter school submits an application pursuant to this section to provide a program of distance education and the application is approved, the school district or charter school is not required to submit a separate application pursuant to NRS 388.834 and NAC 388.825 for approval of a course that is included in the approved program.

4. Not more than 45 calendar days after receipt of an application pursuant to this section, the Department shall provide written notice to the applicant of its approval or denial of the program. If an application is denied, the applicant may, not later than 30 calendar days after receipt of the notice of denial, correct the deficiencies identified in the notice of denial and resubmit the application to the Department. If the application is denied by the Department, the applicant may appeal the decision of the Department to the State Board of Education. The State Board may approve or deny the application upon appeal.

5. Except as otherwise provided in this subsection and NAC 388.860, if a program of distance education is approved pursuant to this section, the approval is valid for 3 years after the date of approval.

6. The Department shall prescribe the form for the renewal of an application. To continue providing a program of distance education, the provider of the program must submit an application for renewal to the Department at least 60 days before the expiration of the approval. If the Department approves a program of distance education submitted by a committee to form a new charter school and the committee’s application to form a charter school is denied by the Department, the board of trustees of a school district or the State Public Charter School Authority, as applicable, the approval of the program of distance education is automatically revoked and the procedure for revocation set forth in NAC 388.860 does not apply.

7. If a provider of a program of distance education intends to change or modify the program with regard to the items set forth in the application, the provider shall obtain the written approval of the Department before making such a change or modification. If the provider changes or modifies the program without the approval of the Department pursuant to this subsection, the Department may revoke its approval of the program.

8. A school district or charter school shall not enroll pupils in a program of distance education unless the Department has provided documentation indicating that the program has been approved pursuant to this section for operation in this State.

(Added to NAC by Bd. of Education by R007-02, eff. 4-5-2002; A by R134-07, 6-17-2008; A by Dep’t of Education by R035-14, 12-22-2014; A by Bd. of Education by R061-14, 12-22-2014; R061-14, 12-22-2014, eff. 8-1-2016; R097-17, 1-30-2019)

NAC 388.835 License requirements for teacher. (NRS 388.874) A licensed teacher designated by the provider of a program of distance education to fulfill the requirements of subsection 1 of NRS 388.866 for a course of distance education must hold a license that authorizes him or her to teach in the state in which the license was issued:

1. In the subject area offered by the course of the distance education; and

2. At the appropriate grade level for which the course of distance education is offered.

(Added to NAC by Bd. of Education by R007-02, eff. 4-5-2002)

NAC 388.840 Responsibility for certain costs. (NRS 388.874) If a program of distance education includes courses from a provider of a course of distance education, the provider of the program of distance education is responsible for any costs associated with the use of such courses for the program.

(Added to NAC by Bd. of Education by R007-02, eff. 4-5-2002)

NAC 388.845 Award of credit earned. (NRS 388.874) A provider of a program of distance education shall award the credit earned by pupils who complete a course of distance education on official transcripts of the school district or charter school, as applicable.

(Added to NAC by Bd. of Education by R007-02, eff. 4-5-2002)

NAC 388.850 Written agreement with board of trustees of school district. (NRS 388.874) The written agreement required by subsection 3 of NRS 388.854 authorizing a pupil to enroll in a program of distance education must, in addition to the information required by that subsection, include:

1. The name of the pupil and his or her school identification number;

2. The written permission of the board of trustees of the school district in which the pupil resides for the pupil to enroll full-time or part-time in a program of distance education provided by another school district or a charter school;

3. If the pupil is:

(a) Less than 18 years of age, the name and signature of the pupil’s parent or legal guardian; or

(b) At least 18 years of age, the signature of the pupil;

4. The name of the provider of the program of distance education;

5. A list indicating each course of distance education in which the pupil will be enrolled; and

6. An identification of the category pursuant to which the pupil is eligible to enroll in a program of distance education, as set forth in NRS 388.850.

(Added to NAC by Bd. of Education by R007-02, eff. 4-5-2002)

NAC 388.855 Written agreement with governing body of charter school. (NRS 388.874) The written agreement required by subsection 3 of NRS 388.858 authorizing a pupil to enroll in a program of distance education must, in addition to the information required by that subsection, include:

1. The name of the pupil and his or her school identification number;

2. The written permission of the governing body of the charter school in which the pupil is enrolled for the pupil to enroll part-time in a program of distance education provided by another charter school or a school district;

3. If the pupil is:

(a) Less than 18 years of age, the name and signature of the pupil’s parent or legal guardian; or

(b) At least 18 years of age, the signature of the pupil;

4. The name of the provider of the program of distance education;

5. A list indicating each course of distance education in which the pupil will be enrolled; and

6. An identification of the category pursuant to which the pupil is eligible to enroll in a program of distance education, as set forth in NRS 388.850.

(Added to NAC by Bd. of Education by R007-02, eff. 4-5-2002)

NAC 388.860 Revocation of approval for course or program: Grounds; procedure; effect. (NRS 388.874)

1. The State Board of Education may revoke approval for a course of distance education to be included on the list of approved distance education courses published by the Department or for a program of distance education to operate in this State if the State Board determines, by majority vote, that the provider of the course or program has failed to comply with:

(a) The terms and conditions of the application to provide the course or program, as approved by the Department pursuant to NAC 388.825 or 388.830;

(b) Subsection 4 of NAC 388.825 or subsection 7 of NAC 388.830, as applicable;

(d) The provisions of NRS 388.820 to 388.874, inclusive, or any other statute or regulation applicable to distance education.

2. If the Department receives a complaint concerning a course of distance education or a program of distance education, or otherwise has reason to believe that a provider of a course or program has failed to comply with paragraphs (a), (b), (c) or (d) of subsection 1, the Department may conduct a review of the course or program, including, without limitation, an audit of the course or program, to determine whether to recommend revocation of the course or program.

3. If the Department conducts a review pursuant to subsection 2, the Department shall provide written notice to the provider of the course or program that the Department will conduct a review of the course or program. The notice must include the scheduled dates for the review and the specific concerns that will be addressed during the review.

4. If the Department finds deficiencies in a course or program during a review that is conducted pursuant to subsection 2, the Department shall provide written notice to the provider of the course or program that includes a statement of the deficiencies and a timeline by which the provider may correct the deficiencies before the Department recommends revocation of the course or program to the State Board of Education. If the provider does not correct the deficiencies to the satisfaction of the Department within the time period prescribed in the written notice, the Department may recommend that the State Board revoke approval of the course or program. If the Department determines to recommend revocation, the Department shall present its recommendation to the State Board at the next regularly scheduled meeting of the State Board after the time period prescribed in the written notice has expired.

5. If the State Board of Education decides to proceed with revocation, it will provide written notice of the proposed revocation by certified mail to the provider of the course or program. The notice must:

(a) Include the time and location set by the State Board for a hearing concerning the proposed revocation, which will be conducted during a regularly scheduled meeting of the State Board;

(b) Identify the deficiencies in the course or program that have caused the State Board to proceed with revocation; and

6. Within 7 calendar days after a hearing is conducted pursuant to subsection 5, the State Board of Education will provide written notice by certified mail to the provider of the course or program of the decision of the State Board concerning the revocation.

7. If the State Board of Education revokes approval for a course of distance education to be included on the list of approved distance education courses published by the Department, the provider of the course shall cease to offer the course in this State immediately upon receipt of notice from the State Board pursuant to subsection 6. If the State Board revokes approval for a program of distance education to operate in this State, the provider of the program shall cease to operate the program immediately upon receipt of notice from the State Board pursuant to subsection 6.

(Added to NAC by Bd. of Education by R007-02, eff. 4-5-2002; A by R134-07, 6-17-2008)

PROVISION OF SAFE AND RESPECTFUL LEARNING ENVIRONMENT

General Provisions

NAC 388.875 Governing body of each school required to develop and carry out plan to ensure certain persons receive training in accordance with policy to provide safe and respectful learning environment; provision of certain laws, policies and plans to certain persons. (NRS 388.1327, 388.133) The governing body of each school shall:

1. Develop and carry out a plan to ensure that members of the governing body, administrators, teachers and all other personnel employed by the school district or school, as applicable, receive the training in accordance with the policy prescribed by the Department pursuant to paragraph (c) of subsection 2 of NRS 388.133, including, without limitation, the training materials developed by the Department.

2. Provide a copy of NAC 388.875 to 388.920, inclusive, and any policies adopted pursuant thereto to the parent or guardian of each pupil who is enrolled in a school within the school district or charter school, as applicable, and each teacher, administrator and other staff member of the school district or school, as applicable, at least once each school year.

3. Make the information described in subsection 1 available upon request to any person, including, without limitation, a community organization that has a cooperative agreement with a school within the school district or charter school, as applicable.

(Added to NAC by Bd. of Education by R111-15, eff. 1-27-2017; A by Dep’t of Education by R099-17, 10-25-2018)

NAC 388.880 Persons with diverse gender identities or expressions: School or school district required to address rights and needs; adoption of policy; individual plan for pupil; list of resources provided by Department. (NRS 388.133)

1. Each school or school district shall address the rights and needs of persons with diverse gender identities or expressions on an individualized basis to foster the safe and healthy development of the gender identity and expression of each pupil. When addressing the rights and needs of a person as they relate to the gender identity or expression of the person, a school or school district shall consider the individual characteristics and unique circumstances of the person.

2. The governing body of a school or school district shall adopt a policy that includes, without limitation:

(a) A requirement that each member of the governing body and each employee governed by the policy, including, without limitation, each administrator and teacher, receive annual training concerning the requirements and needs of persons with diverse gender identities or expressions. Such training must include, without limitation:

(1) Methods to support appropriate engagement of the parents or guardians of pupils with diverse gender identities or expressions;

(2) Developing and implementing an individualized plan to address the rights and needs of a pupil with a diverse gender identity or expression pursuant to paragraph (c), including, without limitation, the required contents of such a plan, as prescribed by subsection 3; and

(3) Instruction on appropriate definitions and terminology to describe the requirements, needs and experiences of persons with diverse gender identities or expressions.

(b) A limitation on discipline so that an employee, volunteer or pupil may only be disciplined for the failure to refer to a pupil using a name or pronoun identified by the parent or guardian of the pupil if that failure:

(1) Constitutes bullying or cyber-bullying; or

(2) Violates a policy or regulation of the governing body of the school or school district.

(c) A requirement that the administrator of a school in which a pupil who has a diverse gender identity or expression is enrolled convene a team to develop an individualized plan to address the rights and needs of the pupil. The team must consist of the pupil, the parent or guardian of the pupil, any representative of a community-based group chosen by the parent or guardian of the pupil and one or more members of the staff of the school. The team shall submit the plan for the approval of the administrator of the school.

3. A plan developed pursuant to paragraph (c) of subsection 2:

(a) Must not conflict with any applicable regulations or policies of the Nevada Interscholastic Activities Association, the requirements of NRS 651.050 to 651.110, inclusive, or any policies of the school district concerning public use of district facilities;

(b) Must take into consideration the rights and needs of the pupil for whom the plan is developed, the ability of the school to comply with the requirements of the plan and the rights and needs of all pupils enrolled at the school; and

(1) Methods to ensure the protection of the privacy of each person governed by the plan;

(2) Methods to support the appropriate engagement of the parent or guardian of the pupil for whom the plan is developed;

(3) Measures to ensure that each person governed by the plan, including, without limitation, each employee, volunteer and pupil, uses only the names and pronouns to refer to the pupil for whom the plan is developed that have been designated by the parent or guardian of the pupil, as recorded through the registration and enrollment process or the pupil information system of the school or school district, in reference to or in any verbal or written communication with the pupil;

(4) Measures to ensure that the pupil for whom the plan is developed has access to academic courses and services that are appropriate for and supportive of the pupil, including, without limitation:

(I) Classroom activities that are relevant and meaningful to and appropriate for the pupil and do not discriminate or segregate according to gender identity or expression; and

(II) Physical education, assemblies, dances, ceremonies, intramural activities and other school activities that are appropriate for the pupil and do not discriminate or segregate according to gender identity or expression;

(5) Measures to ensure access to appropriate and supportive school clubs for the pupil for whom the plan is developed and support groups for the family of that pupil in accordance with NRS 393.071 to 393.0719, inclusive, any regulations adopted pursuant thereto and any other policy of the governing body concerning the use of school property by such clubs and groups;

(6) Measures necessary to ensure that the pupil for whom the plan is developed is able to dress and act in an appropriate manner in accordance with his or her gender expression or identity, including, without limitation:

(I) Any accommodations necessary to ensure that the pupil is able to comply with a dress code or uniform policy in a manner that is physically and emotionally comfortable for the pupil;

(II) Policies concerning yearbook photographs that allow the pupil to choose clothing that aligns with the gender identity or expression of the pupil and, if applicable, allows for a yearbook photograph that is not gender-specific; and

(III) Authorization for the pupil to select a cap and gown combination for graduation that aligns with the gender identity or expression of the pupil; and

(7) A requirement that the name of the pupil that has been designated by the parent or guardian of the pupil, as recorded through the registration and enrollment process or the pupil information system of the school or school district, be read during ceremonies and other events, including, without limitation, graduation ceremonies.

4. A plan developed pursuant to paragraph (c) of subsection 2 is not required to include an item listed in paragraph (c) of subsection 3 if the parent or guardian of the pupil for whom the plan is developed elects to omit the item.

5. To facilitate compliance with the provisions of NRS 388.133 and 388.134, the Department will, at least annually, provide to the governing body of each school or school district a list of resources that reflect nationally accepted best practices for addressing the rights and needs of persons with diverse gender identities or expressions.

6. As used in this section, “classroom activities” means activities that provide education or instruction to pupils but does not include field trips.

(Added to NAC by Dep’t of Education by R099-17, eff. 10-25-2018)

NAC 388.885 Compliance with regulatory provisions relating to safe and respectful learning environment by private school authorized. (NRS 388.1322, 388.133) A private school, as defined in NRS 394.103, and the governing body and administrator of the private school may comply with the provisions of NAC 388.875 to 388.920, inclusive, wholly or in part. Any such compliance is wholly voluntary and no liability attaches to any failure to comply on the part of the private school, governing body or administrator.

(Added to NAC by Dep’t of Education by R099-17, eff. 10-25-2018)

Reporting, Investigation and Adjudication of Violations of Prohibition of Bullying and Cyber-Bullying

NAC 388.890 Reporting of information regarding bullying or cyber-bullying by pupils; actions of administrator or designee when ensuring safety and well-being of reported victim. (NRS 388.1327, 388.133)

1. A pupil who is a victim of bullying or cyber-bullying in violation of NRS 388.135, witnesses a violation of NRS 388.135 or receives information that a violation of NRS 388.135 has occurred may report the violation:

(a) To any employee or volunteer in the school or school district in which the pupil is enrolled, including, without limitation, a teacher, counselor, coach or administrator;

(b) Through the 24-hour, toll-free statewide hotline or Internet website maintained by the Office for a Safe and Respectful Learning Environment pursuant to NRS 388.1323; or

(c) Through a hotline or Internet website maintained by the school district or school in which the pupil is enrolled, if the school district or school maintains such a hotline or website.

2. When ensuring the safety and well-being of a reported victim of bullying or cyber-bullying as required by NRS 388.1351, the administrator or the designee of the administrator:

(a) Shall not take any action that may cause harm to the reported victim, including, without limitation, requiring the reported victim to change classrooms or isolating the reported victim from his or her peers.

(b) Shall, to the extent practicable, talk privately and discreetly about the violation with the reported victim, without bringing undue attention to the reported victim.

(Added to NAC by Bd. of Education by R111-15, eff. 1-27-2017; A by Dep’t of Education by R099-17, 10-25-2018)

NAC 388.895 Initial notification to parents or guardians of pupils; maintenance of record regarding notification. (NRS 388.1327, 388.133)

1. The initial notification provided pursuant to NRS 388.1351 to the parents and guardians of pupils directly involved in a reported violation of NRS 388.135:

(a) Must include, without limitation, a statement that the administrator or the designee of the administrator will be conducting an investigation of the reported violation and that the parent or guardian may discuss with the administrator or designee any counseling or intervention services that are available to the pupil.

(b) Must not include any personally identifiable information of a pupil other than the pupil to whose parent or guardian the notification is provided.

2. An administrator or the designee of an administrator shall maintain a record of each notification made pursuant to subsection 1, including all good faith efforts to notify a parent or guardian if the contact information for the parent or guardian is not correct.

(Added to NAC by Bd. of Education by R111-15, eff. 1-27-2017; A by Dep’t of Education by R099-17, 10-25-2018)

NAC 388.900 Requirements of investigation of report; documentation of interviews conducted as part of investigation; deadline for completion of investigation. (NRS 388.1327, 388.133)

1. Each investigation of a report of bullying or cyber-bullying conducted pursuant to NRS 388.1351 must be conducted thoroughly and impartially in a manner that does not retraumatize or further traumatize the reported victim and must include, without limitation, an interview with:

(a) Each person involved in the reported bullying or cyber-bullying, including, without limitation, the reported aggressor, the reported victim and any relevant witnesses.

(b) The parent or guardian of the reported aggressor and the reported victim.

Ê To the extent practicable, the identities of the persons interviewed and the content of the interviews must remain confidential.

2. Each administrator or designee of an administrator who conducts an investigation pursuant to this section and NRS 388.1351 shall document the date, time, subject and content of each interview conducted and maintain such documentation in a manner that is consistent with the policy governing maintenance of disciplinary records for the school district in which the school is located or charter school, as applicable.

3. Each administrator or designee of an administrator who conducts an investigation must complete the investigation within the time prescribed by NRS 388.1351.

(Added to NAC by Bd. of Education by R111-15, eff. 1-27-2017; A by Dep’t of Education by R099-17, 10-25-2018)

NAC 388.905 Requirements of written report if violation found to have occurred; administrator or designee to develop and carry out plan to support well-being of victim and aggressor; follow-up with victim and aggressor. (NRS 388.1327, 388.133)

1. If an administrator or the designee of an administrator determines that a violation of NRS 388.135 has occurred, the written report of the findings and conclusions of the investigation completed pursuant to NRS 388.1351 and NAC 388.900 must include recommendations for the imposition of restorative disciplinary actions or other measures to be imposed as a result of the violation that the administrator or designee determines will assist the reported aggressor to see the harm that his or her actions have caused, to repair that harm and to not engage in bullying or cyber-bullying in the future. Such other measures may include, without limitation, the development of a plan to support the physical and emotional well-being of the reported aggressor that is aligned with the training provided by the Office for a Safe and Respectful Learning Environment.

2. The administrator or designee of the administrator shall develop and carry out a plan to support the physical and emotional well-being of the reported victim and the reported aggressor which is designed to ensure that the reported victim and the reported aggressor are not further harmed by the bullying or cyber-bullying, including, without limitation, by allowing the reported victim to make up any test or homework assignment that he or she missed or failed to submit as a result of the bullying or cyber-bullying.

3. The administrator or the designee of the administrator shall meet with each reported victim of bullying or cyber-bullying as required by subsection 8 of NRS 388.1351 and with each reported aggressor, regardless of the outcome of the investigation, to ensure that the bullying or cyber-bullying is not continuing. Each meeting must be conducted in a private and discreet manner that does not draw unnecessary attention to the reported victim.

(Added to NAC by Bd. of Education by R111-15, eff. 1-27-2017; A by Dep’t of Education by R099-17, 10-25-2018)

NAC 388.910 Required actions by administrator or designee upon completion of written report of investigation; adoption of policy by governing body of school that prescribes procedures to appeal outcome of investigation. (NRS 388.1327, 388.133)

1. Subject to the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g, and any regulations adopted pursuant thereto, an administrator or designee of an administrator who completes a written report of the findings and conclusions of an investigation of reported bullying or cyber-bullying pursuant to NRS 388.1351 and NAC 388.900 shall, within 24 hours after completing the report:

(a) Provide to the parent or guardian of the reported aggressor a copy of the written report that does not contain the personally identifiable information of any other pupil;

(b) Notify the parent or guardian of any other pupil directly involved in the incident of the outcome of the investigation and make available upon request to any such parent or guardian a copy of the report that does not contain the personally identifiable information of any pupil other than the pupil to whose parent or guardian the report is provided; and

(1) Submit to the administrator or designee a complaint or concern regarding the conduct or outcome of the investigation;

(2) Request a meeting with the administrator or designee to discuss the outcome of the investigation;

(3) Appeal the outcome of the investigation in the manner prescribed pursuant to subsection 2; and

(4) Appeal a disciplinary decision of the administrator or designee made against the pupil as a result of the incident.

2. The governing body of each school shall adopt a policy that prescribes procedures by which the parent or guardian of any pupil directly involved in a reported violation of NRS 388.135 may appeal the outcome of the investigation conducted pursuant to NRS 388.1351 and NAC 388.900 and any disciplinary decision made against the pupil.

(Added to NAC by Bd. of Education by R111-15, eff. 1-27-2017; A by Dep’t of Education by R099-17, 10-25-2018)

NAC 388.915 Complaint concerning outcome of appeal, violation of provisions of law or criminal conduct by staff member; preliminary report concerning whether to conduct further investigation; final report when further investigation is conducted; Department authorized to request school district or charter school to prepare plan of corrective action; employee subject to certain disciplinary action prohibited from administrative appeal of such action. (NRS 388.1327, 388.133, 388.1351)

1. Not later than 30 days after receiving notification of the final resolution of an appeal made pursuant to the policy adopted pursuant to NAC 388.910, the parent or guardian of a pupil directly involved in the reported violation of NRS 388.135 may submit a complaint to the Department concerning the outcome of the appeal or a violation of any provision of NRS 388.121 to 388.1395, inclusive, or NAC 388.875 to 388.920, inclusive, or criminal conduct by a teacher, administrator, coach, other staff member or member of the governing body of a school. Each complaint must be in writing and must include, without limitation:

(a) Contact information for the parent or guardian;

(b) A copy of the written report of the findings and conclusions of the investigation conducted pursuant to NRS 388.1351 and NAC 388.900;

(c) Any written record of the appeal prepared by or at the direction of the school or school district regarding the violation or, if there is not a written record, a narrative summation provided by the parent or guardian, including any contact information that will assist the Department in verifying the accuracy of the narrative summation;

(d) If the complaint concerns the outcome of an appeal, the outcome that the parent or guardian would have preferred;

(e) If the complaint alleges that a teacher, administrator, coach, other staff member or member of the governing body of a school has violated any provision of NRS 388.121 to 388.1395, inclusive, or NAC 388.875 to 388.920, inclusive, the specific provision that was allegedly violated and a description of the alleged violation;

(f) If the complaint alleges that a teacher, administrator, coach, other staff member or member of the governing body of a school has engaged in criminal conduct, a description of the alleged crime; and

(g) Any other information that the parent or guardian determines would be useful to the Department when resolving the complaint.

2. The Department shall not provide legal advice, including, without limitation, advice concerning whether a statute or regulation has been violated or whether a crime has been committed.

3. After a complaint is submitted pursuant to this section, the Department may request any additional information necessary to conduct an investigation. The Department shall make any such request for additional information within 5 working days after receipt of the initial complaint. The Department shall notify a parent or guardian who submits a complaint when the Department determines that the complaint is complete and requires no additional information for the purposes of making a preliminary determination pursuant to subsection 4.

4. After receiving a complaint that is complete, the Department shall determine whether it will conduct further investigation into the complaint and issue to the parent or guardian of each pupil directly involved in the incident described in the complaint, any other person involved in that incident and the superintendent of the school district or governing body of the charter school, as applicable, a preliminary report containing that determination. The Department shall issue the preliminary report not later than 10 working days after receipt of the completed complaint pursuant to subsection 3.

5. If the Department conducts further investigation after issuing a preliminary report pursuant to subsection 4, the Department shall issue to the parent or guardian of each pupil directly involved in the incident, any other person involved in that incident and the superintendent of the school district or governing body of the charter school, as applicable, a final report concerning the findings and conclusions of the investigation. The Department shall issue the final report not later than 45 working days after the preliminary report is issued unless the Department notifies the parent or guardian of each pupil directly involved in the incident, any other person involved in the incident and the superintendent of the school district or governing body of the charter school, as applicable, that the Department needs more time to conduct the investigation.

6. As a result of a complaint submitted pursuant to this section, the Department may request that a school district or charter school, as applicable, prepare a plan of corrective action, including any recommendations made by the Department.

7. An employee who is subject to disciplinary action pursuant to NRS 388.1354 may not appeal that disciplinary action to the Department pursuant to this section.

(Added to NAC by Bd. of Education by R111-15, eff. 1-27-2017; A by Dep’t of Education by R099-17, 10-25-2018)

NAC 388.920 Annual report of accountability to exclude personally identifiable information of pupil involved in reported violation; certain persons prohibited from interfering with reporting of statistics concerning violations. (NRS 388.1327, 388.133)

1. The annual report of accountability prepared pursuant to NRS 385A.070 must not include the personally identifiable information of any pupil involved in a reported violation of NRS 388.135 or any other incident of bullying or cyber-bullying.

2. A teacher, administrator, coach, other staff member or member of the governing body of a school shall not interfere with the reporting of statistics concerning violations of NRS 388.135.

(Added to NAC by Bd. of Education by R111-15, eff. 1-27-2017; A by Dep’t of Education by R099-17, 10-25-2018)

SafeVoice Program

NAC 388.921 “Program” defined. (NRS 388.1327, 388.1351, 388.1455) As used in NAC 388.921 to 388.924, inclusive, unless the context otherwise requires, “Program” has the meaning ascribed to it in NRS 388.1453.

(Added to NAC by Bd. of Education by R079-18, eff. 8-30-2018)

NAC 388.922 Circumstances under which person who reports information to Program deemed to have elected not to remain anonymous. (NRS 388.1327, 388.1351, 388.1455)

1. A person who reports information to the Program shall be deemed to have elected not to remain anonymous if the person:

(a) Reports information about himself or herself which may affect his or her own safety or well-being; and

(b) Includes his or her name or contact information in the report after being notified that such information is not required.

2. In addition to a person described in subsection 1, a person who reports information to the Program shall be deemed to have elected not to remain anonymous if:

(a) The person reports information about another person which could affect the safety or well-being of that person;

(b) The person includes his or her name or contact information in the report after being notified that such information is not required; and

(c) The name or contact information of the person making the report is necessary for an administrator or designee to comply with subsection 2 of NRS 388.1351.

3. In addition to a person described in subsections 1 and 2, a person who deliberately reports false information with the intent to cause harm shall be deemed to have elected not to remain anonymous.

(Added to NAC by Bd. of Education by R079-18, eff. 8-30-2018)

NAC 388.923 Information reported to Program subject to applicable state and federal laws relating to privacy of pupil information or health information. (NRS 388.1327, 388.1351, 388.1455) Information reported to the Program is subject to any applicable state or federal laws relating to the privacy of pupil information or health information, including, without limitation, subsection 1 of NRS 388.1455, NRS 392.029 and the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g, and any regulations adopted pursuant thereto.

(Added to NAC by Bd. of Education by R079-18, eff. 8-30-2018)

NAC 388.924 Duties of support center and team regarding information reported to Program; confidentiality of forwarded information. (NRS 388.1327, 388.1351, 388.1455)

1. Consistent with the legislative findings set forth in NRS 388.1454, the support center, as defined in NRS 388.14535 shall:

(a) Protect information which is reported to the Program by a person who is deemed to have elected not to remain anonymous pursuant to NAC 388.922 by methods and procedures to ensure the confidentiality of the information;

(b) Forward information which is reported to the Program by a person who is deemed to have elected not to remain anonymous pursuant to NAC 388.922 to the team appointed pursuant to NRS 388.14553 for the relevant public school; and

(c) If determined to be appropriate by the support center, forward information which is reported to the Program by a person who is deemed to have elected not to remain anonymous pursuant to NAC 388.922 to a law enforcement agency pursuant to subsection 9 of NRS 388.14557.

2. Upon receipt of information pursuant to paragraph (b) of subsection 1, the team appointed pursuant to NRS 388.14553 shall take appropriate action to respond to the incident or threat in accordance with the training received pursuant to NRS 388.1455 and NAC 388.875 to 388.920, inclusive.

3. A person to whom any information, including, without limitation, the identity of a person who is deemed to have elected not to remain anonymous pursuant to NAC 388.922, is forwarded pursuant to this section or NRS 388.1455 or 388.14557 shall keep such information confidential.

(Added to NAC by Bd. of Education by R079-18, eff. 8-30-2018)

Miscellaneous Provisions

NAC 388.925 Quarterly determination of amount of money in Bullying Prevention Account; required notification to school districts when grants from Account available; eligibility for grant; evaluation and approval of grants. (NRS 388.1327)

1. At least one time each calendar quarter, the Director of the Office for a Safe and Respectful Learning Environment shall determine the amount of money available in the Bullying Prevention Account created by NRS 388.1325. If the amount available in the Account is greater than $1,000, the Director must provide notice to each school district that the school district may apply for a grant from the Account. Such notice must set forth the required information to be included in the application, including, without limitation, the requirements set forth in subsection 2.

2. To be eligible to receive a grant, a school district that applies for a grant must include in the application the manner in which the applicant will measure the effectiveness of the programs for which the money will be used.

3. If the amount of money a school district seeks through an application is less than $10,000, the Director must evaluate each application submitted pursuant to subsection 1 and determine which applications to approve.

4. If the amount of money a school district seeks through an application is $10,000 or more, the Director must:

(a) Evaluate each application submitted pursuant to subsection 1; and

(b) Submit a recommendation regarding whether to approve each application to the State Board of Education.

5. As soon as practicable after the Director submits his or her recommendations pursuant to subsection 4, the State Board of Education shall:

(a) Consider each application and determine which applications to approve; and

(b) Inform the Director of each school district for which a grant is approved.

(Added to NAC by Bd. of Education by R112-15, eff. 9-9-2016)