Parental Rights of Notice & Consent

During the Special Education

Process Education Rights Clinic, University of Richmond School of Law

Michael Provencher, Student Associate · Adrienne Volenik, Director

October 28, 2015

Roadmap

Practical & Authoritative Guide

1. Terms, Notice & Consent. 2. Identification & Evaluation

• What should I receive notice about?

• What must I consent to?

3. IEP Development • What should I receive notice

about? • What must I consent to?

Purpose: Empower you to advocate for your child.

Special Education Process: 1. Identification & Referral 2. Evaluation 3. Determination of Eligibility 4. Development of an IEP &

Determination of Services 5. Reevaluation

Terms • Local educational agency (LEA):

• A local school division governed by a local school board;

• A state-operated program that is funded and administered by the Commonwealth of Virginia; or

• The Virginia School for the Deaf and Blind at Staunton.

--See § 22.1-346 C of the Code of Virginia; 34 CFR 300.28.

• Special education and related services (SEARS):

• Special education: specially designed instruction, at no cost to the parent(s), to meet the unique needs of a child with a disability. See § 22.1-213 of the Code of Virginia; 34 CFR 300.39.

• Related services: transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education. See § 22.1-213 of the Code of Virginia; 34 CFR 300.34(a)-(b).

Terms • Individualized education program (IEP):

• a written statement for a child with a disability that specifies the individual educational needs of the child and what special education and related services are necessary to meet those needs. See 34 CFR 300.22.

• Free appropriate public education (FAPE): special education and related services that: • Are provided at public expense; • Meet the standards of the VBOE; • Include an appropriate preschool, elementary school,

or secondary school education in Virginia; and • Are provided in conformity with an IEP. --See 34 CFR 300.17.

• Least restrictive environment (LRE): • To the maximum extent appropriate,

children with disabilities are educated with children who are not disabled. See 34 CFR 300.114 – 300.120.

• Notice: written statements in English or in the primary language or mode of communication of the home of the parents. See 34 CFR 300.503(c).

• Agreement: an understanding between the parent and the LEA about a particular matter. See 34 CFR 300.9.

“Prior Written Notice” (PWN) vs.

Prior, Written Notice • Prior written notice is a very specific type of notice. • It must be given to you either (a) before the LEA proposes

or (b) after the LEA refuses to initiate or change: • The identification, evaluation, or educational placement (including

graduation with a standard or advanced diploma) of the child; or • The provision of a free appropriate public education (FAPE) for

the child. --See 34 CFR 300.503(a); 8VAC20-81-170.C.1.

Contents of PWN --See 34 CFR 300.502(b); 8VAC20-81-170.C.2.

• A description of the action proposed/refused by the LEA;

• An explanation of why the LEA proposed/refused the action;

• A description of any other options the IEP team considered and the reasons for the rejection of those options;

• A description of each evaluation procedure, assessment, record, or report the LEA used as a basis for its decision;

• A description of any other factors that are relevant to the LEA’s decision;

• A statement that you have protection under the procedural safeguards of the Virginia Regulations and, if the notice is not an initial referral for evaluation, the means by which a copy can be obtained;

• Sources for the parent to contact in order to obtain assistance in understanding the provisions of the notice requirements.

Purposes of PWN --See also Letter to Boswell, 49 IDELR 196, (OSEP 2007).

• Provide comprehensive documentation of the proposed/refused actions;

• Ensure the LEA and you are “on the same page” about your child’s educational program;

• Provide you with an opportunity to voice any concerns or suggestions;

• Ensure that informed parental consent is obtained;

• Provide sufficient information to ensure that you understand the rationale behind an LEA’s decisions;

• Assist you in determining (1) the basis for any disagreement(s) you may have and (2) whether to seek resolution through (a) local dispute resolution processes, (b) a state complaint, (c) mediation, or (d) a due process hearing.

Consent: What Is It, Really? Consent has not been given, unless: • You have been fully informed of all information relevant to the activity; • You understand and agree, in writing, to the activity; and • You understand that the granting of consent is voluntary and may be

revoked at any time. • Revocation is not retroactive, including for the child’s educational records.

• Different from agreement. --See 8VAC20-81-10; 34 CFR 300.9.

Child Identification & Evaluation

What Does It Mean to “Have a Disability”?

• Educational disability vs. medical disability. • Educational: listed in the statutes governing special education.

• Sometimes are categorical (e.g. emotional disability). • Geared towards disabilities that impact a child’s ability to benefit

from an education.

• Medical: Defined by the medical community. • More numerous, more narrow. • Do not always affect education.

Child with a disability: A child who has been identified as having: • intellectual disability; • a hearing impairment; • a speech or language

impairment; • a visual impairment; • a serious emotional

disability; • an orthopedic impairment; • Autism;

• traumatic brain injury; • an other health impairment; • a specific learning

disability; • deaf-blindness; • multiple disabilities

• who, by reason thereof, needs SEARS.

--See § 22.1-213 of the Code of Virginia;

34 CFR 300.8(a)(1), (2)(i) and ii).

Where Do You Start?

• Your child’s school has a Child Find obligation to locate, identify, and evaluate all children who need SEARS. See 8VAC20-81-50.

• If you suspect your child has a disability, you have the ability to begin the process of getting your child (1) evaluated and, if necessary, (2) provided with the appropriate SEARS.

Child Find Obligation Includes Children Who Are:

See 8VAC20-81-50.A.

• Enrolled in public (including charter), private, or religious elementary or secondary schools;

• Highly mobile, such as migrant and homeless children;

• Receiving homebound or home-based instruction from the school;

• Receiving home tutoring or home instruction;

• Advancing from grade to grade; • Under 18 and incarcerated in a

regional or local jail for 10 or more days or under house arrest;

• Suspended or expelled; • In foster care; OR • Placed in a private residential

placement by a Comprehensive Services Act (CSA) team.

School Screenings & Referrals

• The school must conduct screenings to determine if a referral for a SEARS evaluation is necessary. Must screen in the areas of: • Speech, voice, language, fine motor skills, & gross motor skills.

See 8VAC20-81-50. • Vision & hearing (grades 3, 7 & 10). See 8VAC20-250-10. • Scoliosis (grades 5 – 10). See 8VAC20-690-20.

• If the results suggest a SEARS referral is necessary, then the child is referred to the special education administrator. See 8VAC20-81-50.C.1.f.

Notice re: Screening & Referrals See 8VAC20-81-50.C.1.f, 20-81-50.C.2.

• You will receive general notice of any screening taking place.

• You will also be notified if their child fails a screening. • Failure does not always mean that there is a suspected disability. • However, if the results do suggest that there’s a suspected

disability, then: • The child will be referred to the special education

administrator/designee; • You will be notified; and • The school will maintain the screening information in a confidential

manner.

Parental Referral

• You—and, in fact, anyone—can request an evaluation of a child at any time by either (a) writing or (b) speaking to the special education administrator. • While this request does not have to be in writing, as a practical

matter, it should be. • It documents the referral; and • It starts the timeline that the school has to follow for evaluating

your child and developing and implementing an IEP, if necessary.

• When a request for an evaluation is received, the special education administrator must: • Record the date, reason for referral, and name of the

person/agency making the referral; • Ensure confidentiality; and • Provide you with prior written notice and a procedural

safeguards notice.

• Then, within 3 business days, he/she must decide whether to (1) evaluate your child, (2) request a review by the school-based team, or (3) deny the request. • If (2), then the team must decide within 10 business days

whether to evaluate your child.

• If the decision is to evaluate, then the special education administrator must: • Give you all notices of the evaluation process; • Give you a copy of the procedural safeguards; • Inform you of the procedures for the evaluation process; • Involve you in deciding what evaluation information is needed; • Request any evaluation information you may have; and • Obtain your written consent to conduct an evaluation.

• If the decision is to not evaluate, then you must be given: • A prior written notice of the decision; • A full explanation of the reasons for the decision; and • An explanation of procedural safeguards, including:

• Your right to challenge the decision through (a) mediation or (b) a due process hearing.

IEP Development

Notice re: IEP Meetings • Prior notice; but can be written, by phone, or in person; and • Give the purpose, date, time, and location, as well as a list of those who plan to

attend. • Must be a mutually agreed upon date/time/location. • Schools must also notify you that both the you and the school may invite any additional

individual who has knowledge or special expertise about the child.

• Eligibility determinations, IEP and transition IEP meetings, and manifestation determinations all should induce this type of notice. • Informal or unscheduled conversations between school personnel about such topics as

teaching methods, lesson plans, preparation for a future meeting, or coordination of services are not considered "meetings," and, therefore, notice is not required.

IEP Team --See 8VAC20-81-110; 34 CFR 300.23.

• You (the parents); • Your child, if appropriate. • At least one of your child’s general

education teachers (if your child is or may be participating in general education classes);

• At least one special education teacher or related service provider (this person must be serving your child if your child is participating in special education);

• A person who can interpret what the test results mean for your child;

• A person from the school who is qualified to provide or supervise the provision of a special education and who knows about the general education curriculum and available resources;

• Other people who are invited at the parents’ or school’s discretion;

• You must also consent to sharing any educational information about your child with a person who is not employed by the school before they can participate in any meetings.

Recording during IEP Meetings --See 8VAC20-81-170.J; see also 8VAC20-81-80, 20-81-110.F, 20-81-160.D.

• Audio recordings are allowed at meetings to (1) determine your child’s eligibility, (2) to develop review, or revise your child’s IEP, and (3) to review discipline matters (including manifestation determinations). • You must inform the school before the meeting of your intent to record.

• If not, you must provide the school with a copy afterwards, to be included in your child’s school record.

• You must provide your own recording device and other supplies.

• Video recording may be permitted, barred, or limited by the school. • If permitted, the video must become part of your child’s record. • If barred or limited, the school’s policy must be uniformly applied.

• Also, the school must allow for exceptions, if necessary, for you to understand the IEP or to exercise your rights.

Consenting to the IEP • Implementation of a new IEP requires your written consent.

• You may choose to give only a partial consent, thus only implanting those parts of the IEP to which you consented. See 34 CFR § 300.300(d)(3); 8VAC20-81-170.E.1.d.

• If you do not consent to a proposed new IEP: • The proposed new IEP does not take effect; and • The old IEP is still in effect; it does not expire.

• You also must provide written consent in order to remove an existing service.

What Should Be Included in the IEP?

• Present Level of Academic Achievement and Functional Performance (PLOP).

• Goals & Objectives. • Services & Accommodations. • Least restrictive environment (LRE) analysis.