Procedural safeguards are at the heart of the Individuals With Disabilities Education Act. As we conduct a new informational series on procedural safeguards, what would you change about IDEA's scheme for protecting parent/student rights?
Monday, March 31, 2014
Monday, March 24, 2014
Weekly Question!
Procedural safeguards are at the heart of the Individuals With Disabilities Education Act. As we conduct a new informational series on procedural safeguards, what would you change about IDEA's scheme for protecting parent/student rights?
Friday, March 21, 2014
Procedural Safeguards - The Series Part V
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| Seal of the United States Court of Appeals for the Eleventh Circuit. (Photo credit: Wikipedia) |
This is the fifth installment in a multi-part series on procedural safeguards under the federal special education law, the Individuals With Disabilities Education Act. I work a lot in this area, so it is near and dear to my heart. Despite the importance of procedural safeguards. however, many issues in this area are misunderstood. I hope that all of the different types of special education stakeholders who read this blog find the information in this series helpful. Be sure to tell me what you think about the series.
Prior Written Notice
A school district must provide prior written notice to the parents whenever it proposes to, or refuses to, initiate or change the: identification, evaluation, placement, or FAPE. IDEASection 615(b)(3). See 34 CFR Section 300.503(a). The notice must contain the following: a description of the action; an explanation of why the district proposes or refuses the action; a description of each evaluation procedure, assessment, record or report relied upon; a statement that the parents have protections under the procedural safeguards; sources for the parents to contact to obtain assistance; a description of other options considered and why they were rejected; and a description of the factors that are relevant to the district’s proposal or refusal. IDEA Section 615(c)(1). See 34 CFR Section 300.503(b).
“Prior” written notice is an unfortunate choice of words. This does not mean that the notice must be given before the decision is made. Indeed, OSEP has pointed out that the notice must be given a reasonable amount of time before the school district implements the proposal, or refusal, described in the notice. The proposal triggers an obligation to convene an IEP team meeting, but providing prior written notice before the meeting could suggest that the district’s action was made without parent input and participation. 71 Fed. Register No. 156 at page 46690 (August 14, 2006).
OSEP has published a model form for prior written notice consistent with current statutory and regulatory requirements. The model form is available on the website
In KA v Fulton County Sch Dist 741 F.3d 1195, 62 IDELR 161 (11th Cir. 12/20/2013) the parents argued that the school district should have filed for a due process hearing when the parents refused to consent to changes to the student's educational program at an IEP team meeting. IDEA does not require that, however. As the Eleventh Circuit pointed out in its decision, a school district must provide prior written notice, and in this case it did so even if the notice was not up to snuff. The parents' remedy was to file for due process or invoke other procedural safeguards after receiving the prior written notice. Because there are so few published circuit court of appeal decisions, you should read it, and you can do so here.
Wednesday, March 19, 2014
Kids With Disabilities Are Disproportionately Subject to School Discipline
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| discipline (Photo credit: ckaroli) |
OK the title is nothing new. Kiddos with disabilities get disciplined more than others...we know that.
But last week a respected group of experts, for law, education and the social sciences, got together and compiled a bunch of resources that call for reform to student discipline systems. The group found clear evidence that students of color, particularly African-Americans, and students with disabilities are suspended at hugely disproportionate rates compared to white students, perpetuating racial and educational inequality across the country. For example, a study published this year found that three out of every four African-American middle school boys with disabilities in Chicago had received an out-of-school suspension.
“And we are never going to close the achievement gap until we close this discipline gap,” added Daniel J. Losen, a member of the Collaborative and the director of the Center for Civil Rights Remedies at UCLA. “All schools see a wide range of adolescent misbehavior, but school responses vary dramatically. Some schools see an educational mission in teaching appropriate behavior and are successful at improving behavior without resorting to suspension and expulsion.”
A collection of resources and three briefing papers compiled by the group are available here. A post on the Council for Exceptional Children Policy Blog can be found here. If your work involves discipline of children with disabilities, you should take a look at these resources.
Monday, March 17, 2014
New Weekly Question!
Procedural safeguards are at the heart of the Individuals With Disabilities Education Act. As we conduct a new informational series on procedural safeguards, what would you change about IDEA's scheme for protecting parent/student rights?
Friday, March 14, 2014
Procedural Safeguards The Series- Part IV
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| (Photo credit: Wikipedia) |
This is the fourth installment in a multi-part series on procedural safeguards under the federal special education law, the Individuals With Disabilities Education Act. I work a lot in this area, so it is near and dear to my heart. Despite the importance of procedural safeguards. however, many issues in this area are misunderstood. I hope that all of the different types of special education stakeholders who read this blog find the information in this series helpful. Be sure to tell me what you think about the series.
Independent Educational Evaluations
The parents of a child with a disability have the right to an independent educational evaluation (hereafter sometimes referred to as “IEE.”) IDEA Section 615(b)(1). The IEE must be provided by theschool district at public expense unless the LEA files a due process complaint and shows that its evaluation was appropriate. 34 CFR Section 300.502(b). The U. S. Supreme Court found the right to an IEE to be a very important safeguard for parents, and relied on it in part, in rejecting the argument that school districts had an advantage in terms of expertise and knowledge. Schaffer v. Weast ___ U.S.____, 126 S.Ct. 528, 44 IDELR 150 (2005).
Parents may obtain only one IEE at public expense each time the school district conducts an evaluation with which the parents disagree. 34 CFR Section 300.502(b)(5). The purpose of this regulation is to protect the parents’ right to an IEE (OSEP rejected a suggestion limiting a parent to one IEE in a child’s school career) while ensuring that a school district does not have to bear the cost of multiple IEEs concerning a single disagreement. 71 Fed. Register No. 156 at page 46690 (August 14, 2006).
OSEP has noted that where a hearing officer orders an IEE, parental consent is needed for the release of education records to the independent evaluator. If the parent refuses to consent, the hearing officer could decide to dismiss the parent’s complaint. 71 Fed. Register No. 156 at page 46690 (August 14, 2006).
If a parent obtains an IEE at public expense, but disagrees with the result, the school district could introduce it as evidence in a due process hearing. 71 Fed. Register No. 156 at page 46690 (August 14, 2006).
In Phillip & Angie C ex rel AC v.
Jefferson County Bd of Educ 112 LRP 56693 (11th Cir 2012) the Eleventh Circuit held that although
IDEA does not expressly require public funding of IEEs, US DOE had the
authority to require them by regulation. Under Chevron principles, DOE is
entitled to deference and IDEA §606(b) adopts all regs by DOE protecting
parents in effect in 1983.
In GJ v Muscogee Sch Dist 668 F.3d 1251, 58 IDELR 61 (11th Cir 1/31/12) the
Eleventh Circuit held that because the parent’s refused to sign a consent form
and instead attached a lengthy seven point addendum with conditions for the
eval, resulted in no underlying evaluation, the parents were not entitled to an
IEE because there was no district evaluation first.
In Letter to Inzelbuch 113 LRP 32485
(OSEP 8/1/13) OSEP opined that where an IEE is conducted at public expense, it
would be inconsistent with IDEA for a school district to limit the IEE in any
way that would prevent the evaluator from fulfilling its purposes
(eligibility/continued eligibility and child’s needs). Whether an IEE evaluator must be allowed to
observe the student in the classroom must be decided on a case by case
basis.
Monday, March 10, 2014
New Weekly Question!
Procedural safeguards are at the heart of the Individuals With Disabilities Education Act. As we conduct a new informational series on procedural safeguards, what would you change about IDEA's scheme for protecting parent/student rights?
Friday, March 7, 2014
Procedural Safeguards The Series - Part III
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| (Photo credit: Wikipedia) |
This is the third installment in a multi-part series on procedural safeguards under the federal special education law, the Individuals With Disabilities Education Act. I work a lot in this area, so it is near and dear to my heart. Despite the importance of procedural safeguards. however, many issues in this area are misunderstood. I hope that all of the different types of special education stakeholders who read this blog find the information in this series helpful. Please be sure to tell me what you think about the series.
Today's post concerns parental consent.
Parental Consent
Where the parent does not provide consent for the initial evaluation, the school district may invoke procedural safeguards, such as mediation or a due process hearing, to pursue such evaluation. Section 614 (a)(1)(D)(ii)(I). If the parent refuses to consent to services for the child, however, the school district shall not provide special education and related services to the child and the district may not invoke mediation or the due process hearing system. Section 614 (a)(1)(D)(ii)(II). Where the parent refuses to consent to services or fails to respond to a request to provide such services, the school district is relieved of the obligation to provide FAPE to the student and is not required to convene an IEP team meeting or to develop an IEP for the child. Section 614 (a)(1)(D)(ii)(III)(aa) and (bb).
OSEP has clarified that a school district must make reasonable efforts to obtain the informed parental consent for an initial evaluation and document these efforts in the same manner as documenting efforts to obtain parent participation in IEP team meetings. 71 Fed. Register No. 156 at page 46631 (August 14, 2006). A school district may, but is not required to, utilize the procedural safeguards to obtain parental consent for an evaluation although OSEP believes the override procedures should be used only in rare circumstances. 71 Fed. Register No. 156 at page 46632 (August 14, 2006).
The reasonable efforts required of a school district do not require the convening of an IEP team meeting, although a school district may convene an IEP team meeting in order to obtain informed consent. 71 Fed. Register No. 156 at page 46634 (August 14, 2006).
Where a child is home schooled or placed by his parents in a private school at their own expense, the school district may not use the procedural safeguards to attempt an override of lack of consent. 34 CFR Section 300.300(d)(4); 71 Fed. Register No. 156 at page 46635 (August 14, 2006).
REVOCATION OF CONSENT
The federal Office of Special Education Programs made several changes to the federal IDEA regulations effective on December 31, 2008. The most significant change involved parental revocation of consent. 34 C.F.R. Sections 300.300 and 300.9 were amended to provide that parents are now permitted to revoke in writing their consent for the continued provision of special education and related services after having received services. School districts are no longer able to use mediation or a due process hearing to seek to override or challenge the parents’ lack of consent. School districts will not be deemed to be in violation of the ACT for denial of FAPE where the parent has revoked consent to the continued provision of special education and related services
Where a parent revokes consent, mediation may not be used to ensure that the revocation of consent was informed. Letter to Gerl 59 IDELR 200 (OSEP 6/6/2012)
Concerning the situation where a parent revokes consent and the student then gets disciplined, OSEP said the following in a June, 2009 Q & A document:
Question A-3: Do the discipline provisions apply if the child violates the school’s code of student conduct after a parent revokes consent for special education and related services under §300.300(b)?
Answer: No. Under §§ 300.9 and 300.300, parents are permitted to unilaterally withdraw their children from further receipt of special education and related services by revoking their consent for the continued provision of special education and related services to their children. When a parent revokes consent for special education and related services under §300.300(b), the parent has refused services as described in §300.534(c)(1)(ii); therefore, the public agency is not deemed to have knowledge that the child is a child with a disability and the child will be subject to the same disciplinary procedures and timelines applicable to general education students and not entitled to IDEA’s discipline protections. It is expected that parents will take into account the possible consequences under the discipline procedures before revoking consent for the provision of special education and related services. 73 Federal Register 73012-73013.
You can find the entire Q& A document here
Thursday, March 6, 2014
IES Issues Survey of Research on Reading Disabilities
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| English: National Center for Education Statistics logo. (2010, U.S. Department of Education. Institute of Education Sciences, National Center for Education Statistic). (Photo credit: Wikipedia) |
Are you interested in the body of research on children with reading disabilities? If so, you should read the study released last month by the National Center for Special Education Research, Institute of Education Sciences concerning this body of research.
The study reviews four areas: Assessment: What have we learned about effective identification and assessment of students who have or are at risk for reading difficulties or disabilities?; Basic Cognitive and Linguistic Processes: What are the basic cognitive and linguistic processes that support successful reading and how can these skills be improved for students who have or who are at risk for reading disabilities?; Intervention: How do we make reading instruction more effective for students who have or are at risk for developing reading disabilities? How do we teach reading to students with low incidence disabilities?; and Professional Development: How do we bring research-based instructional practices to the classroom?
This report summarizes a lot of information and it is an excellent resource. You can review the entire 108 page study here. A brief summary of the report may be reviewed on the always good Policy Insider Blog of the Council for Exceptional Children.
Monday, March 3, 2014
New Weekly Question!
Procedural safeguards are at the heart of the Individuals With Disabilities Education Act. As we conduct a new informational series on procedural safeguards, what would you change about IDEA's scheme for protecting parent/student rights?
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