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Oregon Bulletin

December 1, 2012

Oregon Department of Education, Chapter 581

Rule Caption: Repeals duplicative rules and corrects cross reference in special education rules.

Adm. Order No.: ODE 29-2012

Filed with Sec. of State: 11-7-2012

Certified to be Effective: 11-9-12

Notice Publication Date: 9-1-2012

Rules Amended: 581-015-2425

Rules Repealed: 581-015-0133, 581-015-0710

Subject: The 2004 Amendment to the IDEA and corresponding regulations, effective October 2006, required changes to existing state regulations. In addition, the state regulations had been reorganized in 2007 and renumbered in a more logical sequence so that information is easier to find. Regulations had also been updated to reflect more current language, and some regulations had been amended for clarity or to align more closely with the federal statutes and regulations. Obsolete rules were repealed, and reorganization prompted repeal of some rules that have been combined with new or amended rules.

 Two rules intended for repeal at this time, 581-015-0133 and 581-015-0710, were missed through this extensive Division 15 rewrite. These rules are: 581-015-0133 which was renumbered to 581-015-2295 and 581-015-0710 which was renumbered to 581-015-2260. These two renumbered rules need to be removed and repealed.

 Finally, 581-015-2425(5)(b), on disciplinary removals, was also modified at this time. It currently reads “provide services to the student in an interim alternative educational setting, determined by the IEP team, in accordance with OAR 581-015-2345.” The reference to 581-015-2345 incorrectly refers back to due process hearing request and response. This is a typo. Subsection (5)(b) of 581-015-2425 should refer to OAR 581-015-2435 which appropriately references the requirements of an interim alternative educational setting as needed in this rule.

Rules Coordinator: Cindy Hunt—(503) 947-5651

581-015-2425

Removal to an Interim Alternative Educational Setting by School District

(1) Definitions:

(a) “Drug” means illegal drug or controlled substance but does not include a substance that is legally possessed or used under the supervision of a licensed health-care professional or otherwise legally possessed. It does not include alcohol or tobacco.

(b) “Drug violation” means the use, possession, sale or solicitation of drugs at school or a school function.

(c) “Serious bodily injury” means bodily injury, which involves substantial risk of death; extreme physical pain; protracted and obvious disfigurement; or protracted loss or impairment of the function of a bodily member, organ or mental faculty.

(d) “Weapon” means a weapon, device, instrument, material or substance, animate or inanimate, that is used for, or is readily capable of causing death or serious bodily injury, except that it does not include a pocket knife with a blade of less than 2 1/2 inches in length.

(e) “Weapon violation” means carrying a weapon to school or to a school function or acquiring a weapon at school.

(2) School districts may remove a child with disabilities from their current educational placement to an appropriate interim alternative educational setting for the same amount of time that a child without a disability would be subject to discipline, but for not more than 45 school days in a school year without regard to whether the behavior is determined to be a manifestation of the child’s disability for:

(a) A drug or weapon violation as defined in subsection (1); or

(b) If the child has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of the Department or a school district.

(3) A removal for a drug or weapon violation, or for inflicting serious bodily injury, is considered a change in placement.

(4) School personnel may consider any unique circumstances on a case-by-case basis when determining whether to order a removal under subsection (2) for a child with a disability who violates a code of conduct.

(5) For removals described in subsection (2) of this rule, school districts must:

(a) On the date on which the decision is made to remove the student under subsection (2), notify the parents of that decision and provide the parents with notice of procedural safeguards under OAR 581-015-2315;

(b) Provide the services to the student in an interim alternative educational setting, determined by the IEP team, in accordance with OAR 581-015-2435;

(c) Within 10 school days of any decision to remove a child under subsection (2), determine whether the child’s behavior is a manifestation of the child’s disability in accordance with OAR 581-015-2420; and

(d) Provide, as appropriate, a functional behavioral assessment, and behavior intervention services and modifications that are designed to address the behavior violation so that it does not recur.

(6) Placement pending due process hearing. If a parent requests a due process hearing because of a disagreement with the manifestation determination, removal to the interim alternative educational setting, or any decision about placement related to a disciplinary removal under section (2) of this rule, the child remains in the interim alternative educational setting pending the decision of the administrative law judge under OAR 581-015-2445, or until the end of the removal under section (2), whichever occurs first, unless the parent and school district agree otherwise.

Stat. Auth.: ORS 343.041, 343.045 & 343.155
Stats. Implemented: ORS 343.155, 34 CFR 300.504(a)(3), 300.530; 300.533, 300.536
Hist.: ODE 35-1999, f. 12-13-99, cert. ef. 12-14-99; ODE 2-2003, f. & cert. ef. 3-10-03; Renumbered from 581-015-0555, ODE 10-2007, f. & cert. ef. 4-25-07; ODE 29-2012, f. 11-7-12, cert. ef. 11-9-12


 

Rule Caption: Makes rules relating to dispute resolution and payment compliant with federal IDEA.

Adm. Order No.: ODE 30-2012

Filed with Sec. of State: 11-7-2012

Certified to be Effective: 11-9-12

Notice Publication Date: 9-1-2012

Rules Adopted: 581-015-2786

Rules Amended: 581-015-2865, 581-015-2870, 581-015-2885, 581-015-2890

Subject: As required by the U.S. Department of Education, the proposed new OAR and OAR amendments add specific IDEA content related to the system of payments and dispute resolution options, primarily for early intervention services. A summary statement for each OAR is listed below:

 New

 OAR 581-015-2786 Dispute Resolution Within and Between Public Agencies – Early Intervention (EI) Services Specifies that each public agency responsible for providing early intervention services may use its internal procedures to timely resolve intra-agency disputes about providing or paying for these services and that early intervention services may not be denied or delayed during the pendency of disputes between agencies regarding payment for services.

 Amend

 581-015-2865 Mediation

 581-015-2870 Due Process Hearings

 Adds to each OAR a provision that a parent of a child in early intervention may use the specified dispute resolution procedures (due process or mediation) to challenge the imposition of insurance fees and costs related to a public agency’s use of public or private insurance to provide early intervention.

 581-015-2885 Preschool Children with Disabilities Covered by Public Insurance

 581-015-2890 Preschool Children with Disabilities Covered by Private Insurance

 Adds to each rule provisions that a public agency using a parent’s public or private insurance in conjunction with early intervention services must pay parents’ out-of-pocket costs (e.g., co-payments, deductibles) resulting from this use; may use Part C funds to pay for these costs; and must notify parents that parents may use IDEA’s dispute resolution procedures to contest any imposition of these insurance fees by the public agency.

Rules Coordinator: Cindy Hunt—(503) 947-5651

581-015-2786

Dispute Resolution Within and Between Public Agencies — Early Intervention (EI) Services

(1) Each public agency involved in providing early intervention services may use its own internal dispute resolution procedures to resolve, in a timely manner, internal disagreements about payments for a particular service or other matters related to providing early intervention services.

(2) A public agency’s internal dispute resolution procedures may not result in delaying the provision of early intervention services.

(3) Public agencies may not delay or deny the timely provision of early intervention services during the pendency of dispute resolution between public agencies regarding financial responsibilities.

Stat. Auth.: ORS 343.475, 343.511
Stats. Implemented: ORS 343.475, 343.495, 343.511, 34 CFR 303.120, 303.511, 303.520, 303.521
Hist.: ODE 30-2012, f. 11-7-12, cert. ef. 11-9-12

581-015-2865

Mediation

(1) The Department offers mediation, in accordance with OAR 581-015-2335, at no cost to the parties to resolve disputes involving any EI/ECSE matter, including matters arising before the filing of a complaint or hearing request. For EI families, such matters may include a public agency’s choices regarding insurance related decisions or fees, such as: copayments or deductibles, incurred as part of a child’s early intervention services.

(2) For the purposes of OAR 581-015-2335, “school district” means contractors and subcontractors for disputes involving any EI/ECSE matter.

Stat. Auth.: ORS 343.475, 343.531
Stats. Implemented: ORS 343.475, 343.531, 34 CFR 303.431, 303.521(e)
Hist.: EB 23-1992, f. & cert. ef. 6-23-92; EB 4-1995, f. & cert. ef. 1-24-95; ODE 24-2000, f. & cert. ef. 10-16-00; Renumbered from 581-015-1020, ODE 10-2007, f. & cert. ef. 4-25-07; ODE 30-2012, f. 11-7-12, cert. ef. 11-9-12

581-015-2870

Due Process Hearings

OARs 581-015-2340 through 581-015-2385 apply for EI and ECSE programs with the following exceptions:

(1) “School District” means contractors and subcontractors;

(2) Parents may not seek reimbursement or attorney fees under ORS 343.175 for EI hearings;

(3) The Department must submit a copy of the hearing decision to the State Advisory Council for Special Education and the State Interagency Coordinating Council; and

(4) EI parents may use the State Due Process system established in OAR 581-015-2340 through 581-015-2385 to contest the imposition of fees, or a public agency’s decisions about a parent’s ability to pay costs, such as co-payments or deductibles, incurred as a part of a child’s early intervention services.

Stat. Auth.: ORS 343.475, 343.531
Stats. Implemented: ORS 343.475, 343.531, 34 CFR 303.521(e)
Hist.: EB 23-1992, f. & cert. ef. 6-23-92; EB 4-1995, f. & cert. ef. 1-24-95; EB 10-1996, f. & cert. ef. 6-26-96; ODE 24-2000, f. & cert. ef. 10-16-00; Renumbered from 581-015-1030, ODE 10-2007, f. & cert. ef. 4-25-07; ODE 14-2012, f. 3-30-12, cert. ef. 4-2-12; ODE 30-2012, f. 11-7-12, cert. ef. 11-9-12

581-015-2885

Preschool Children with Disabilities Covered by Public Insurance

(1) Applicability: For purposes of OAR 581-015-2885, IDEA Part C requirements apply to children ages birth through two; IDEA Part B requirements apply to children ages three and above.

(2) For purposes of this rule the term “public benefits” means public insurance including but not limited to Medicaid.

(3) The contractor or subcontractor may use a child or family’s public benefits to provide or pay for early intervention or a Free Appropriate Public Education, as permitted under the public insurance program and the requirements of this rule.

(4) The contractor or subcontractor may not require a parent to sign up for, or enroll in, public benefits to receive early intervention services under Part C or a free appropriate public education (FAPE) under Part B.

(5) For a child under age three, the contractor or subcontractor:

(a) Must obtain, prior to using public benefits, parent consent if the child or family is not enrolled in the public benefits program or if that use would:

(A) Decrease available lifetime coverage or any other insured benefit;

(B) Result in the family paying for services that would otherwise be covered by the public benefits;

(C) Increase premiums or lead to the discontinuation of insurance; or

(D) Risk loss of eligibility for home and community-based waivers, based on aggregate health-related expenditures.

(b) Must provide, if the parent does not consent to use of their public benefits, the early intervention services on the IFSP for which the parent has provided consent.

(c) Must provide written notification, prior to using public benefits, to the parents that includes:

(A) A statement that parental consent must be obtained before the contractor or subcontractor discloses a child’s personally identifiable information to the State Medicaid Agency for billing purposes;

(B) A statement of the no-cost protection provision in subsection (5)(a)–(b) that early intervention services on the IFSP must still be made available if the parent has consented to these services;

(C) A statement that the parents have the right to withdraw their consent to disclose personally identifiable information to the public agency responsible for the administration of public benefits or insurance program (e.g., Medicaid) at any time; and

(D) A statement of the general cost categories that the parent would incur as a result of participating in a public benefits program.

(d) Must pay any costs incurred as a result of using public benefits for early intervention services, such as a deductible or copayment.

(e) May use its Part C funds to pay fees and costs (e.g., the deductible or co-pay amounts) the parents otherwise would have to pay to use public benefits.

(f) May use its Part C funds to pay for early intervention services;

(g) Must notify EI parents that they may use any of the state’s dispute resolution procedures including, but not limited to, the state complaint system under OAR 581-015-2030, and mediation, due process and related resolution sessions under 581-015-2865 through 581-015-2870 to contest the imposition of an insurance-related fee or cost, such as co-payments or deductibles, to provide early intervention services for a child who may have a disability.

(6) For a child over age three, the contractor or subcontractor:

(a) Must obtain parent consent for releasing information to the state Medicaid agency necessary to access public insurance for the period of time covered by the child’s IFSP;

(b) Must notify parents that the parents’ refusal to allow access to their public benefits does not relieve the contractor or subcontractor of responsibility to ensure that all required services are provided at no cost to the parents;

(c) Must not require parents to incur an out-of-pocket expense such as the payment of deductible or co-pay amount incurred in filing a claim for services, and must pay the cost that the parent otherwise would be required to pay;

(d) Must not use a child’s benefits under a public insurance program if that use would:

(A) Decrease available lifetime coverage or any other insured benefit;

(B) Result in the family paying for services that would otherwise be covered by the public benefits;

(C) Increase premiums or lead to the discontinuation of insurance; or

(D) Risk loss of eligibility for home and community-based waivers, based on aggregate health-related expenditures.

(e) May use its Part B funds to pay for the service to ensure FAPE; and

(f) May use its Part B funds to pay the cost the parents otherwise would have to pay to use public benefits (e.g., the deductible or co-pay amounts).

(7) Proceeds from public benefits are not treated as program income for purposes of 34 CFR 80.25.

(8) If a contractor or subcontractor spends reimbursements from federal funds (e.g., Medicaid) for early intervention or special education and related services, those funds will not be considered “state or local” funds for purposes of the maintenance of effort provisions.

(9) Nothing in this section should be construed to alter the requirements imposed on a state Medicaid agency, or any other agency administering a public insurance program by federal statute, regulations or policy under applicable titles of the Social Security Act, or any other public insurance program.

Stat. Auth.: ORS 343.475
Stats. Implemented: ORS 343.475, 343.495, 34 CFR 303.430, 303.520, 303.521
Hist.: ODE 2-2003, f. & cert. ef. 3-10-03; Renumbered from 581-015-1051, ODE 10-2007, f. & cert. ef. 4-25-07; ODE 14-2012, f. 3-30-12, cert. ef. 4-2-12; ODE 30-2012, f. 11-7-12, cert. ef. 11-9-12

581-015-2890

Preschool Children with Disabilities Covered by Private Insurance

(1) With regard to services required to provide FAPE to a preschool child or EI services to a child under the age of three, a contractor or subcontractor may access a parent’s private insurance proceeds only if the parent provides informed consent consistent with this rule and applicable federal requirements related to confidentiality of personally identifiable information.

(2) For a child under the age of three, when the contractor or subcontractor proposes to access the parent’s private insurance to pay for the initial provision of early intervention services, it must:

(a) Obtain parent consent in accordance with this rule; and whenever personally identifiable information is released due to an increase in frequency, length, duration, or intensity in the provision of services on the child’s IFSP.

(b) Inform the parents of any of the State’s payment policies and identify potential costs that the parent may incur when their private insurance is used to pay for services.

(c) Not permit use of private insurance to:

(A) Count towards or result in a loss of benefits due to the annual or lifetime insurance coverage caps, to the parent, or the child’s family members who are covered by the policy;

(B) Negatively affect the availability of insurance to the child, the parent, or the child’s family members who are covered under the insurance policy, and insurance coverage may not be discontinued for these individuals due to the use of the insurance to pay for services; or

(C) Be the basis for increasing insurance premiums of the child, the parent, or the child’s family members covered under the insurance policy.

(3) For a child under the age of three, the contractor or subcontractor:

(a) Must not require parents to pay out-of-pocket expenses (e.g., co-payments, premiums, or deductibles), even if the parent has given consent for the use of private insurance.

(b) May use its Part C funds to pay the cost the parents otherwise would have to pay to use public benefits (e.g., the deductible or co-pay amounts);

(c) May use its Part C funds to pay for early intervention services;

(d) Must notify parents that they may use any of the state’s dispute resolution procedures including, but not limited to, the state complaint system under OAR 581-015-2030; mediation, due process, and related resolution sessions under 581-015-2865 through 581-015-2870, to contest the imposition of an insurance related fee or cost, such as co-payments or deductibles, to provide early intervention services.

(4) For a child above the age of three, the contractor or subcontractor must obtain consent each time it proposes to access the parents’ private insurance.

(a) If a public agency is unable to obtain parental consent to use the parent’s private insurance, to ensure the provision of FAPE, the public agency may use its Part B funds to pay for the service.

(b) To avoid financial cost to parents who otherwise would consent to use private insurance, if the parent would incur a cost, the public agency may use its Part B funds to pay the cost the parents otherwise would have to pay to use the parent’s insurance (e.g., the deductible or co-pay amounts).

(5) For all preschool children, the contractor or subcontractor must inform the parents that their refusal to permit the public agency to access their private insurance does not relieve the public agency of its responsibility to ensure that all required services are provided at no cost to the parents.

(6) Proceeds from private insurance will not be treated as program income.

Stat. Auth.: ORS 343.475
Stats. Implemented: ORS 343.475, 343.495, 34 CFR 300.154, 303.520(b)
Hist.: ODE 2-2003, f. & cert. ef. 3-10-03; Renumbered from 581-015-1052, ODE 10-2007, f. & cert. ef. 4-25-07; ODE 14-2012, f. 3-30-12, cert. ef. 4-2-12; ODE 30-2012, f. 11-7-12, cert. ef. 11-9-12


 

Rule Caption: Reduces fee charged to private career schools for criminal background checks.

Adm. Order No.: ODE 31-2012(Temp)

Filed with Sec. of State: 11-7-2012

Certified to be Effective: 11-9-12 thru 5-7-13

Notice Publication Date:

Rules Amended: 581-045-0003

Subject: Changes fees charged by Department of Education for processing criminal background checks for private career schools. The overall fee is being reduced from $62 to $59 to reflect a change in the fee charged by the FBI to the Department.

Rules Coordinator: Cindy Hunt—(503) 947-5651

581-045-0003

Fingerprinting of Subject Individuals in Schools Accepting Enrollment of Minors

(1) Pursuant to ORS 345.030(6), subject individuals include:

(a) Faculty, teachers, agents, and individuals who hold positions of authority and control in any career school accepting enrollment of persons under the age of 18 and

(b) Agents of career schools who have contact with persons under the age of 18 on behalf of a career school.

(2) Each application for a new school license or renewal of an existing school license shall be accompanied by:

(a) One completed FBI fingerprint card #USGPO 1990-262-201-2000 for each subject individual;

(b) A properly completed Department of Education criminal history information form; and

(c) A fee in an amount equal to the actual charges of conducting the criminal background check as allowed under ORS 181.534 (9)(f)(B)(g). Fee amount and distribution shall be as follows:

(A) Oregon State Police (OSP) — $28.00;

(B) Federal Bureau of Investigation (FBI) — $16.50;

(C) Oregon Department of Education (ODE) — $14.50;

(D) TOTAL — $59.00

(3) An applicant school is not required to submit fingerprints for subject individuals if the Department of Education has conducted a criminal records check on the subject individual within the three years preceding the date of application.

(4) For the purposes of criminal background checks pursuant to ORS 345.030, conducted in relation to individuals subject to such criminal background verification, the following definitions of a crime applies;

(a) Any adjudication in any criminal court of law, in this state or in any other jurisdiction, finding the individual committed a crime. A crime is an offense for which a sentence of imprisonment is authorized.

(b) Any adjudication in a juvenile proceeding, in this state or in any other jurisdiction, determining the individual committed a crime, which if done by an adult, would constitute a crime listed in ORS 342.143.

(c) Any conduct which resulted in mandatory registration reporting as a sex offender in this state or any other jurisdiction. A later court order or other action relieving the individual of the sex offender registration/reporting requirement does not affect the status of the conduct as a conviction for purposes of this rule.

(d) Any plea of guilty, no contest or nolo contendere in connection with a crime, in this state or in any other jurisdiction.

(e) A conviction exists for the purposes of this rule, regardless of whether a dismissal was later entered into the record in connection with diversion or on any sort of deferred adjudication or delayed entry of judgment.

(f) A conviction exists for purposes of this rule even if a crime was expunged or removed from the record of the individual under the laws of another jurisdiction if the crime would be ineligible under ORS 137.225 for expunction or removal from the record if the conviction had occurred in Oregon. A conviction does not exist where an Oregon court has expunged or otherwise removed a conviction from the record of an individual.

(g) A conviction does not exist, except as noted above, only where there was a judicial adjudication that the individual did not commit the offense in question, or when a conviction, adjudication or plea is overturned by an appellate court of record and no later conviction, adjudication or plea indicating the individual committed the offense in question is on the record.

(5) Fingerprints may be collected by a local or state law enforcement agency.

(6) The Oregon Department of Education shall:

(a) Request criminal information from the Department of State Police in the manner prescribed by law;

(b) Review the criminal records of subject individual upon the submission of the required FBI and state forms and the Superintendent shall issue a statement of criminal history status and related impact on employment or contract qualification.

(c) Not provide copies of criminal records to anyone except as provided by law. The subject individual may inspect his or her personal criminal records under the supervision of properly certified LEDS (Law Enforcement Data Systems) personnel at the Department of Education.

(7) Subject individuals who refuse to consent to the criminal records check or refuse to be fingerprinted shall be terminated from employment by the applicant school.

(8) Subject individuals who have been convicted of any of the crimes listed in ORS 342.143, or the substantial equivalent of any of those crimes if the conviction occurred in another jurisdiction or in Oregon under a different statutory name or number, shall be refused employment or continued employment, or have employment terminated upon notification from the Superintendent.

(9) Subject individuals who have been convicted of any of the crimes listed in ORS 161.405 or an attempt to commit any of the crimes listed in 324.143 shall be refused employment, continued employment, or have employment terminated by the applicant school upon notification from the Superintendent.

(10) Evaluations of crimes shall be based on Oregon laws in effect at the time of conviction, regardless of the jurisdiction in which the conviction occurred.

(11) Prior to making a determination that results in a notice and opportunity for hearing, as allowed under ORS 181.534, the Superintendent may cause an investigation to be undertaken. Subject individuals and applicant schools shall cooperate with the investigation and may be required to furnish oral or written statements by affidavit or under oath. If the Superintendent determines through investigation that a violation of this rule has not occurred, a written decision explaining the basis for the decision will be provided to the subject individual.

(12) Subject individuals may appeal a determination that prevents their employment or eligibility to contract with an applicant school as a contested case under ORS 183.413 to 183.470 to the Superintendent.

(13) Only cards and forms approved by the Department of Education will be accepted. The Department of Education will return any incomplete or incorrectly completed fingerprint cards and associated forms without taking any other action.

(14) The Department of Education shall maintain a record of all properly submitted fingerprint cards. The record shall include at least the following:

(a) Card sequence number;

(b) Name of applicant school submitting the cards:

(c) Date cards and Department forms were received;

(d) Date incomplete cards returned to applicant school (if applicable);

(e) Date completed cards sent to Oregon State Police;

(f) Date denial or probationary approval sent to applicant schools;

(g) Date FBI card returned to Department; and

(h) Date denial or final approval sent to applicant school.

Stat. Auth.: ORS 345.020
Stats. Implemented: ORS 345.030
Hist.: ODE 3-2010, f. & cert. ef. 2-8-10; ODE 31-2012(Temp), f. 11-7-12, cert. ef. 11-9-12 thru 5-7-13


 

Rule Caption: Modifies rule relating to instruction at private career schools in barbering programs.

Adm. Order No.: ODE 32-2012(Temp)

Filed with Sec. of State: 11-7-2012

Certified to be Effective: 11-9-12 thru 5-7-13

Notice Publication Date:

Rules Amended: 581-045-0200

Subject: Allows licensed career schools that offer instructional programs in the field of barbering to employ individuals who possess licenses in both hair design and esthetics as instructors in those barbering programs.

Rules Coordinator: Cindy Hunt—(503) 947-5651

581-045-0200

Barbering, Hair Design, Esthetics, and Nail Technology

In addition to OAR 581-045-0001 through 581-045-0190, schools of barbering, hair design, esthetics, and nail technology shall comply with this rule and 581-045-0210.

(1) Minimum hourly training requirements:

(a) For hair design, 1,450 hours;

(b) For barbering, 1,100 hours;

(c) For esthetics, 250 hours;

(d) For nail technology, 350 hours; and

(e) In addition to the programs listed above, students are required to successfully complete the following requirements once:

(A) Safety and sanitation, 150 hours; and

(B) Career development, 100 hours.

(2) Individual progress records must be regularly maintained for the purpose of monitoring each student’s progress through the instructional program and verifying actual hours of instruction in each certifiable classification. Once a student completes the state minimum and the school program requirements, the school shall administer a Department-approved written and practical exam prior to the student taking the State Board exam for licensure. The time required to take the practical exam shall be included as part of the contracted program hours included in the tuition cost.

(3) The Department, with the assistance of a curriculum committee, will develop minimum standards for each certificated program or any combination of programs.

(4) No student shall perform any task in a clinic lab without first having achieved verifiable minimum competence. The following hours are recommended as a guideline for classroom and laboratory instruction that students should experience prior to any assignment in the clinic lab:

(a) Hair design, 160 hours;

(b) Esthetics, 40 hours;

(c) Nail technology, 40 hours; and

(d) Barbering, 100 hours.

(5) The instructional program shall determine the type of assignments students will receive in the clinic lab. Clinic lab assignments should, as nearly as possible, reflect the emphasis of the student’s current and cumulative theory and laboratory experiences. Schools shall establish a minimum and maximum number of clinic activities for each type of task required in the clinic lab. These minimums/maximums should show a comparable distribution of activities reflective of industry practice. Only when students have completed the minimum in all areas can they be assigned to clinic activities in excess of the maximums.

(6) As an alternative to section (1) of this rule a competency-based training program that is self-paced may be approved by the Superintendent when the school has developed written requirements which it administers for graduation including:

(a) Clearly defined student performance objectives that measure levels of performance at each level of instruction for each skill/task and knowledge required for students to successfully pass the appropriate practitioner certificate examination and successfully and safely perform on members of the public all services allowed in the certificate classifications;

(b) Individual progress records maintained for the purpose of monitoring each student’s progress through the instructional program and recording/verifying actual hours of instruction and performance achievement by each student;

(c) A curriculum design, which the Superintendent determines to be comparable to the Board adopted model curriculum, showing a logical progression of academic and practical training experiences leading to the levels of student performance required for graduation and certification;

(d) The identification of specific levels of competence to be achieved by each student prior to any clinic lab experience that will ensure students have achieved sufficient skill and knowledge to successfully and safely perform assigned tasks on members of the general public;

(e) A diagnosis of each student’s beginning level of competency and a prescriptive instructional program for specific competency completion with projected timelines resulting in an estimated program completion date; a copy to be given to the student on commencement of the program and on file in the student’s personal file. Revisions to the prescriptive program must be based on recorded performance evaluations and as a result of school/student negotiation. Copies of revisions must be given to the student and on file in the student’s academic file;

(f) Assurances that the instructional program will determine the type of assignments that students receive for the clinic lab; that, as nearly as possible, the clinic lab assignments reflect the emphasis of the student’s current and cumulative theory and laboratory experiences;

(g) School catalogs and/or student enrollment agreements, that show the average time for students to complete the requirements for the various certificate programs during the previous reporting period;

(h) An annual report at the time of relicensing to the Department showing the actual total hours of instruction received by each student who has completed or left the school during the previous reporting period;

(i) Assurances that no student’s competency-based prescriptive training program will be significantly altered or regulated in any way, once the student and the school administration have signed a competency-based agreement; and

(j) When the school informs a student that he/she is competent, the student may elect to leave the school with a diploma at that time or stay in school until he/she has been trained for an amount of time equal to the training hours listed in section (1) of this rule, and no additional tuition may be charged. The student shall notify the school of his/her decision within two weeks of notice of competency.

(7) With the exception of the teacher training program in section (24) of this rule, a school shall not conduct both fixed-hour and student competency-based training programs in the same school facility concurrently unless the school is in transition from one training program to another. The Department may set a time limit in which the transition must be completed.

(8) No school shall enroll a student wishing to transfer hours from a school of barbering, hair design, esthetics, and nail technology in Oregon or out-of-state without first receiving an official transcript properly signed and/or sealed directly from the previous school(s). A school may admit a student on a temporary basis without receiving an official transcript. In no event should a student be considered a graduate until an official transcript from a prior school(s) is in the graduating school’s student file. Schools shall evaluate and grant appropriate credit for any education and training students received at state regulated postsecondary schools.

(9) Schools shall validate only their own hours of instruction provided a student but not any hours provided by other schools.

(10) Upon receipt and evaluation of official transcripts from schools previously attended:

(a) Schools shall give full credit for hours earned within the last ten years; and

(b) Schools may grant credit for hours earned prior to the last ten years, if approved by the Superintendent.

(11) No school shall deny a student a record of hours earned. A record of hours does not infer or include the official transcript.

(12)(a) The school shall have as a minimum the following staff present at all times:

(A) 1–15 students present — one approved teacher;

(B) 16–30 students present — two approved teachers; and

(C) One additional approved teacher for each additional 20 students or part thereof.

(b) When only one teacher is present at the school, clinic lab operations and classroom instruction may not occur simultaneously. The lone teacher may conduct and supervise one or the other, but not both concurrently.

(c) Teachers who supervise the clinic lab or approve student practical performance must be certified in all areas they supervise or approve, except that an individual who is not certified in barbering may teach or supervise students enrolled in a barbering program if that teacher is certified in both hair design and esthetics.

(d) Exceptions to the student to teacher ratios in paragraph (a) of this subsection may only be granted for theory or lecture classes. All hands-on practical lab and clinic lab classes are required to maintain specified staffing ratios.

(13) The minimum teaching staff, as set forth in these rules, shall not perform administrative or financial aid or any other non-instructional duties during the time that the clinic lab and classroom instruction are taking place concurrently.

(14) A teacher or student teacher shall not perform any services in the school during school hours except for teaching purposes.

(15) Schools may use resource persons who are not approved teachers for enrichment of instruction.

(a) Maximum time limits for resource persons are:

(A) Hair design, 340 hours;

(B) Esthetics, 100 hours;

(C) Nail technology, 100 hours; and

(D) Barbering, 270 hours.

(b) Instruction by resource persons, if provided outside the school premises, must be supervised by a certified teacher.

(16) All services performed by students shall take place under the supervision and direction of a certified teacher.

(17) Premises shall be used during school hours only for instructing students and teacher trainees in barbering, hair design, esthetics, or nail technology.

(18) The school shall provide a minimum of 2,800 square feet of total floor space to be allocated as follows; one work station for each of the first twenty students; one additional work station for every five students in excess of twenty; and, where hair design is taught, one shampoo bowl for every five work stations. The superintendent must approve any exception to this requirement. Classroom and clinic space are in compliance with OAR 581-045-0022. Schools must comply with ORS 345.240 relative to accessibility of programs for persons with handicapping conditions.

(19) The Superintendent may approve a facility of less than 2,800 square feet of floor space for schools if the school presents a written plan as to how the number of students will be served in the space provided. The plan must include how the school meets the entire model curriculum standards.

(20) The school shall be separated from adjoining rooms used for another business or for domestic purposes, by means of walls or substantial partitions extending from floor to ceiling; all doors leading to the school from the aforesaid adjoining rooms must be kept closed. Access to the school shall be provided by means of an outside or separate entrance, or from a public passageway in a public building.

(21) Currently, certified practitioners of barbering, hair design, esthetics, or nail technology may be approved by the Department to teach subjects or programs directly relating to their certified classification(s) if they:

(a) Have graduated from high school as evidenced by a photocopy of a transcript indicating graduation, diploma or its foreign equivalent. As an alternative, the teacher may show evidence of obtaining a General Education Development (GED) certificate. The Superintendent may grant a waiver upon written request from the school;

(b) Are at least 18 years of age as evidenced by a photocopy of a birth certificate, driver’s license, or baptismal certificate;

(c) Have completed the Standard Course of Study as set forth in section 24 (b) of this rule unless they meet the requirements as set forth in subsection (21)(d)–(f) of this rule;

(d) Hold all Oregon licenses, certificates, and ratings legally required for employment in the field in which they teach. The teacher requirements found in OAR 581-045-0012, apply, if the applicants:

(A) Have at least one year of work experience as a certified practitioner in the subject in which they instruct, following certification or licensure. The work experience and the training for certification or licensure must equal a minimum of two years; or

(B) Have completed an approved teacher training program, and

(e) Provide evidence to the satisfaction of the Superintendent that the requirements of this section have been met; and

(f) Submit the $50.00 registration fee.

(g) Notwithstanding any other provision of this subsection, a practitioner who is certified in both hair design and esthetics may be approved to teach a barbering program if that practitioner has at least one year or work experience and at least one year of training for certification or licensure, and otherwise satisfies the requirements of this subsection.

(22) Each school shall include the names of all actively employed (full-time or part-time) approved teachers on its annual license renewal application.

(23) Continuing education of teachers shall be required to maintain approval:

(a) A teacher may maintain registration status by completing 30 clock hours of continuing education approved by the Superintendent within every 36-month period following that teacher’s first date of common teacher registration (including any period of time from the actual date of registration until the first date of common teacher registration); and by completing 30 clock hours of approved continuing education within every 36-month period thereafter, even if the teacher is not teaching for all or a portion of each three-year period. The common teacher registration dates are from August 1 until July 31. Only 10 of the 30 clock hours may be from an authorized manufacturer or distributor show;

(b) The Department shall, in conjunction with the state advisory committee, approve courses for which continuing education credit will be allowed;

(c) Proof of completion of the requirements of subsection (23)(a) of this rule, and the $25.00 renewal of registration fee, must be submitted to the Superintendent prior to each teacher’s next date of registration; and

(d) An individual failing to comply with the requirements of subsection (23)(a) of this rule shall not be approved for registration renewal or for a new registration until such requirements have been met.

(24) A licensed school of barbering, hair design, esthetics, or nail technology may offer a teacher training program if it complies with the following:

(a) Courses of teacher training for instruction in barbering, hair design, esthetics, and nail technology may be offered only in a school of hair design licensed under the provisions of ORS Chapter 345 or Mt. Hood Community College. Courses of study must be submitted to the Superintendent for approval;

(b) The Standard Course of Study shall require 1,000 hours of instruction that shall include the following:

(A) Preparation and use of lesson plans,

(B) Use of audiovisual and other instructional aids,

(C) Development and administration of tests and evaluation of test results,

(D) Evaluation and recording of student progress, and recording of attendance,

(E) Observation of practical demonstrations,

(F) Assisting with practical demonstrations,

(G) Setting up and performance of practical demonstrations, and

(H) Practice teaching.

(c) The Superintendent shall approve teacher-training programs of 200 hours for:

(A) Teachers whose certification has lapsed more than three years, and

(B) Teachers from other states whose licensing requirements are less than the minimum requirements for Oregon.

(d) The school shall:

(A) Maintain daily records of the teacher trainee’s attendance, and the subject matter covered; and

(B) Conduct and record the results of periodic evaluations of each teacher trainee.

(e) The school may evaluate and give up to 500 hours credit for professional teaching experience or any academic training received in a community college or institution of higher education when that academic training contributes to achievement of the total approved Standard Course of Study. The Superintendent may grant a waiver to the 500 hour limitation if sufficient evidence is submitted;

(f) A school shall not have more than three approved teacher trainees at one time. The school shall designate who shall have the principal supervisory responsibility for the student in the teacher-training program. Each trainee, when in the clinic lab, must be under direct supervision of an approved teacher with a minimum of two years teaching experience;

(g) Teacher trainees shall evaluate students only under the direct supervision of a certified teacher; and

(h) Teacher training students must be registered with the Superintendent prior to commencement of their training.

Stat. Auth.: ORS 345.400
Stats. Implemented: ORS 345.400
Hist.: EB 13-1996, f. & cert. ef. 7-26-96; ODE 32-2000, f. 12-11-00 cert. ef. 1-1-01; ODE 21-2002, f. 9-26-02 cert. ef. 10-1-02; ODE 17-2003, f. 12-30-03, cert. ef. 1-1-04; ODE 15-2006, f. 12-11-06, cert. ef. 1-1-07; ODE 32-2012(Temp), f. 11-7-12, cert. ef. 11-9-12 thru 5-7-13

Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2011.

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