Notice and Consent Procedures February 2011 DRAFT · Michael P. Flanagan, Superintendent of Public...

Notice and Consent Procedures

February 2011

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State Board of EducationJohn C. Austin, President

Casandra E. Ulbrich, Vice PresidentNancy Danhof, Secretary

Marianne Yared McGuire, TreasurerRichard Zeile, NASBE Delegate

Kathleen N. StrausDaniel Varner

Eileen Lappin Weiser

Ex-OfficioRick Snyder, Governor

Michael P. Flanagan, Superintendent of Public Instruction

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Introduction

This document is part of a Procedural and Guidance Manual being developed by the Michigan Department of Education (MDE), Office of Special Education and Early Intervention Services (OSE-EIS).

The manual is to provide technical assistance, guidance, and best practices where appropriate. Because the information is relevant and timely to districts providing special education programs and services throughout the state, the OSE-EIS staff decided to release chapters as they were finalized rather than waiting for the entire manual to be completed.

The information contained in this document can be used:As a basis for monitoring and complaint activities.• By the OSE-EIS staff when responding to questions generated by the field and • parents.As a resource for districts and parents to understand federal and state rules and • regulations, and how the MDE implements them.By a district or intermediate school district (ISD) to supplement existing policies, • procedures, or forms.To clarify areas of confusion within the field.•

The manual is ongoing and dynamic, and information will be reviewed and updated as needed.

Resource documents include:

Federal Regulations:The IDEA regulations, 34 CFR 300 (2006) are indicated by • § 300 with the following numbers indicating the subsection.Federal Register Commentary to the IDEA 2006 regulations are noted in text as • Fed. Reg. p. with the following numbers indicating the page number. The page numbers are followed by (2006).Family Educational Rights and Privacy Act• (FERPA) are noted in text as 34 CFR § 99 with the following numbers indicating the subsection.

State Statutes and Rules:Michigan Administrative Rules for Special Education• are noted in text as R 340 with the following numbers indicating the subsection.Auxiliary Services for Non-Public Schoolchildren• are noted in the text as R 340.292.

Throughout this chapter, there will be IDEA regulations relating to actions that require notice and/or consent. When Notice is provided by a public agency or parent for an action, consent is often (but not always) required for the action. In some cases, Notice is the action itself. Consent for an action is always preceded by Notice from the public agency regarding the action.

This chapter will use bold text such as “NOTICE REQUIRED; CONSENT REQUIRED” to identify which actions in the procedures column require Notice and/or Consent.

Notice and Consent Procedures i

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Table of Contents

Introduction iPurpose iii

Definitions/Guidance 1 I. Notice 1 II. Prior Notice by the Local Educational Agency (LEA); Content of Notice 1 III. Procedural Safeguards Notice 2 IV. Consent 2 V. Consent vs. Agreement 2 VI. Documenting Reasonable Efforts to Give Notice and Obtain Consent 3 VII. Parent 3 VIII. Surrogates and Wards of State 4 IX. Referral 4

ActivitiestheDistrictUndertakesRequiringNoticeand/orConsent 5 I. Child Find Obligations 5 A. Public Awareness 5 B. General Education Interventions 6

II. Request for Initial Evaluation 6 A. Parent or Local Educational Agency (LEA) Initiated 6 B. Transfer Students 8

III. Initial Evaluation 9 A. Consent 9 B. Notice 10

IV. Individualized Education Program (IEP) 11 A. Parent Participation/Invitation 11 B. Initial Provision of Services 13 C. Annual/Periodic Review or Reevaluation IEP 14 D. IEP Amendment 15 E. Transfers From Another State 15 F. Transfers Within Michigan 17 G. Excusal From IEP Team Meetings 18 H. IEP/Individualized Family Service Plan (IFSP) for Birth to Five-Year Olds 19 I. Parentally Placed Students in Private Schools 19 J. Graduation 20

V. Reevaluations 20

VI. Evaluation (not part of an initial or reevaluation) 21 A. Notice 21

VII. Other Considerations 22 A. Discipline 22 B. Transfer of Parental Rights 23 C. Independent Educational Evaluation (IEE) 23 D. Medicaid 24 E. Release of Information 25 F. Due Process Complaints 26 G. Parental Revocation of Consent for Continued Special Education and Related Services 26 H. Electronic Mail 27

Appendix: Actions Requiring Notice and Consent 28

Notice and Consent Procedures ii

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Purpose

The purpose of this chapter is to assist in navigating the legal requirements of the Notice and Consent provisions of the Individuals with Disabilities Education Act (IDEA) and the Michigan Administrative Rules for Special Education (MARSE) and to understand how proper implementation of these requirements can benefit students and families, as well as Michigan local educational agencies (LEAs), which includes public school academies (PSAs), intermediate school districts (ISDs) operating programs, and public agencies.

Aside from the legal documentation of the provision of required information to parents, the Notice and Consent requirements can be a key to effective communication between the LEAs and the parents.

Many of the activities involved in the evaluation of students and the provision of services are enhanced when LEAs and parents work together in cooperative planning for the benefit of the student. When LEAs keep parents informed through the Notice and Consent provisions, they are more likely to have their involvement and cooperation, resulting in better outcomes for students and preventing problems between LEAs and parents in the future.

Parental consent is typically required when the LEA is contemplating some action and requires parental involvement for mutual decision making. Parents can only make good decisions for their children when they have all the information they need to make those decisions. While the Notice and Consent provisions may sometimes seem cumbersome to LEAs, they become less daunting when viewed as a proactive communication tool.

Notice and Consent Procedures iii

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Notice and Consent Procedures 1

Definitions/Guidance

I. Notice

A. Notice must be in writing.“Notice” means that one party (typically the LEA) has informed the other party (typically 1. the parent) about something. Notice must be written.“Written notice” generally refers to the detailed information the LEA must provide to the 2. parent anytime that the LEA “proposes” or “refuses” to do something under the section in the IDEA called “prior written notice.” The information must identify what the LEA proposes to do for the student. It also identifies some resources for the parent to contact to obtain additional information and must be in writing. §300.503When the IDEA uses the term “notify,” it means “to provide notice.” A verbal statement 3. or verbal reminder does not replace written notice to the parent. Fed. Reg. p. 46723 (2006) See IV. Parent Participation/Invitation for an exception.

B. How do “procedural safeguards,” “rights,” and “parent rights” relate to written notice?“Procedural safeguards” refers to the legal rights students and parents have under § 1. 300.504(c).“Procedural Safeguards Notice” refers to the document.2. “Rights” and “the parent’s rights” are general terms that people often use to refer to the 3. more legal-sounding “written notice” and “procedural safeguards.”

II. Prior Notice by the LEA; Content of Notice§300.503

A. Written notice that meets the requirements of paragraph (B) of this section must be given to the parent of a student with a disability a reasonable time before the LEA:

Proposes to initiate or change the identification, evaluation, or educational placement of the 1. student or the provision of a Free Appropriate Public Education (FAPE) to the student; or Refuses to initiate or change the identification, evaluation, or educational placement of 2. the student or the provision of a FAPE to the student.

B. The notice required under paragraph (A) of this section must include:A description of the action proposed or refused by the agency.1. An explanation of why the agency proposes or refuses to take the action.2. A description of each evaluation procedure, assessment, record, or report the agency 3. used as a basis for the proposed or refused action.A statement that the parents of a student with a disability have protection under the 4. procedural safeguards and, if this notice is not an initial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained.Sources for parents to contact to obtain assistance in understanding the provisions of the 5. IDEA.A description of other options that the IEP team considered and the reasons why those 6. options were rejected.A description of other factors relevant to the agency’s proposal or refusal.7.

C. The notice required in this section must be:Written in language understandable to the general public.1. Provided in the native language of the parent or other mode of communication used by 2. the parent, unless it is clearly not feasible to do so.

D. If the native language or other mode of communication of the parent is not a written language, the public agency must take steps to ensure that:

The notice is translated orally or by other means to the parent in his or her native 1. language or other mode of communication.The parent understands the content of the notice.2. There is written evidence that the requirements of this section have been met.3.

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III. Procedural Safeguards Notice§300.504

A. A copy of the procedural safeguards available to the parents of a student with a disability must be given to the parent at least once per school year. A copy must also be given to the parent:

Upon initial referral or parent request for evaluation.1. Upon receipt of the first state complaint under §§ 300.151 through 300.153 and upon 2. receipt of the first due process complaint under § 300.507 in a school year.In accordance with the discipline procedures in § 300.530(h).3. Upon request by a parent.4.

B. The Procedural Safeguards Notice must meet the understandable language requirements cited in II, C.

IV. Consent§ 300.9

A. “Consent” means that:The parent has been fully informed of all information relevant to the activity for which 1. consent is sought, in his or her native language or other mode of communication.The parent understands and agrees in writing to the carrying out of the activity for which 2. his or her consent is sought and the consent describes that activity and lists the records (if any) that will be released and to whom.The parent understands that the granting of consent is voluntary on the part of the 3. parent and may be revoked at anytime.If a parent revokes consent, that revocation is not retroactive (i.e., it does not negate 4. an action that has occurred after the consent was given and before the consent was revoked).

B. The terms ‘‘consent,’’ ‘‘informed consent,’’ ‘‘parental consent,’’ and ‘‘written informed consent,’’ as used in the IDEA regulations are intended to have the same meaning. Fed. Reg. p. 46629 (2006)

V. Consent vs. AgreementFed. Reg. P. 46629 (2006)

A. The definition of “consent” requires:The parent to be fully informed of all information relevant to the activity for which 1. consent is sought.The parent to agree in writing to an activity for which consent is sought.2.

B. The meaning of the terms ‘‘agree’’ or ‘‘agreement’’ is not the same as “consent.”‘‘Agree’’ or ‘‘agreement’’ refers to an understanding between the parent and the public 1. agency about a particular question or issue, which may or may not be in writing, depending on the context. There is no requirement that an agreement be in writing unless specifically stated in the 2. IDEA (e.g., IV, G, Excusal From IEP Team Meeting).

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VI.DocumentingReasonableEffortstoGiveNoticeandObtain Consent§300.300(d)(5)

§ 300.300(d)(5) tells us that in order to meet the reasonable effort requirements in obtaining parent consent, IDEA directs LEAs to document attempts to obtain parental consent. In another part of the law, under Parent Participation, a list of activities that can each be used as documentation is established. The list includes:

Detailed records of telephone calls made or attempted and the results of those calls.1. Copies of correspondence sent to the parent and any responses received.2. Detailed records of visits made to the parent’s home or place of employment and the results 3. of those visits. § 300.322(d)(1-3)

VII. Parent§ 300.30

A. “Parent” can mean any of the following:A biological or adoptive parent of a student.1. A foster parent, unless state law, regulations, or contractual obligations with a state or 2. local entity prohibit a foster parent from acting as a parent.A guardian generally authorized to act as the student’s parent, or authorized to make 3. educational decisions for the student (but not the state if the student is a ward of the state).An individual acting in the place of a biological or adoptive parent (including a 4. grandparent, stepparent, or other relative) with whom the student lives, or an individual who is legally responsible for the student’s welfare.A surrogate parent.5.

B. In addition, under the Michigan Administrative Rules for Special Education (MARSE), “parent” also includes:

If a judicial decree or order identifies a specific person or persons to act as the parent of 1. a student, or to make educational decisions on behalf of a student then such a person or persons shall be determined to be the parent. R 340.1701b(vii)The affected student or youth with a disability when the student or youth with a disability 2. reaches 18 years of age, if a legal guardian has not been appointed by appropriate court proceedings. R 340.1701b(viii)

C. When attempting to act as the parent and when more than one party is qualified under paragraph (A), the biological or adoptive parent shall be presumed to be the parent and have legal authority to make educational decisions for the student UNLESS a judicial decree or order identifies a specific person or persons to act as the ‘‘parent’’ of a child.

Examples: If a student is in foster care and the biological or adoptive parent is attempting to act as a parent, the biological or adoptive parent is presumed to be the parent unless the biological or adoptive parent does not have legal authority to make educational decisions for the student or a judicial decree or order identifies a specific person or persons to act as the parent of a student. Fed.Reg.p.46568(2006)

In situations where the parents of a student are divorced, the parental rights established by the IDEA apply to both parents, unless a court order or state law specifies otherwise. Fed. Reg.p.46568(2006)

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VIII. Surrogates and Wards of State§300.519

A. Each LEA must ensure that the rights of a student are protected in cases when any of the following apply:

No parent (as defined in § 300.30) can be identified.1. The LEA, after reasonable efforts, cannot locate a parent.2. The student is a ward of the state.3. The student is an unaccompanied homeless youth as defined in the 4. McKinney-Vento Homeless Assistance Act.

B. The LEA must assign an individual to act as a surrogate for the parents. LEAs must have policies which include a method:

For determining whether a student needs a surrogate parent.1. For assigning a surrogate parent to the student.2.

C. In the case of a student who is a ward of the state, the surrogate parent may be appointed by the judge overseeing the student’s case, provided that the surrogate meets the requirements in the IDEA.

IX. Referral

The word “referral” is used differently in different contexts.

A. In the context of R 340.1721, a “referral” means a request for an initial evaluation.Within 10 calendar days of receipt of a written referral (request for an initial evaluation) 1. of a student suspected of having a disability, and before any formal evaluation designed to determine eligibility for special education programs and services, the public agency shall notify the parent and shall request written consent to evaluate.The written notice shall contain:2.

The reason or reasons an evaluation is sought and the nature of the evaluation.a. A description of the types of special education programs and services currently b. available within the ISD.

B. In the context of general education, a “referral” is often used as part of the process of an intervention strategy (e.g., Child Study). This is not a request for an initial evaluation.

C. When used in the context of Early Childhood referrals, “referral” is defined as the process by which the local Part C agency is notified of a suspected developmental delay or established conditions for an infant or toddler, birth to age three. This notification starts the federal timelines.

Note: Throughout this document:1. “Referral” will be used to mean the process whereby the district is developing intervention

strategies related to a referral concern.2. The phrase “request for an initial evaluation” will be used to refer to the point at which an

LEA suspects a student has a disability.

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GuidanceProcedures


ActivitiestheDistrictUndertakesRequiringNoticeand/orConsent

I. Child Find Obligations§ 300.111

A. Public Awareness As part of child find requirements, 1. LEAs must have policies and procedures in place to identify, locate, and evaluate all students with disabilities residing in their LEA. § 300.111

ISD Plan—Each ISD must have a 2. plan for special education which includes a description of the procedures used by the ISD to advise and inform students with disabilities, their parents, and other members of the community of the special education opportunities required under the law. R 340.1831-1832

School districts must make the 3. community aware of the specific special education procedures in their district so that parents know how to access those procedures. This public awareness must include methods that will target the whole community, not just the parents of students enrolled in the LEA (e.g., newsletters, district websites, radio and television announcements, flyers in physician’s offices, etc.).

NOTICE REQUIRED

Child find activities typically involve some type of screening process to determine whether the student should be referred for a full and individual evaluation to determine eligibility for special education and related services. Fed. Reg. p. 46636 (2006)

A referral does not automatically result in an evaluation. Only the parent or LEA can request an initial evaluation. LEAs should have policies and procedures in place to:

Receive and document the date of the • referral.Inform the parent of the receipt of the referral.• Review data on the student to determine if an • evaluation is needed.Assure the parent that no evaluation will take place • unless the LEA seeks parental consent for an initial evaluation.

The child find requirements permit 4. referrals from any source that suspects a student may be eligible for special education and related services. Fed. Reg. p. 46636 (2006)

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GuidanceProceduresActivitiestheDistrictUndertakesRequiringNoticeand/orConsent

B.GeneralEducationInterventions

LEAs should have written procedures to respond to parents who contact the school in writing or verbally to request an initial evaluation for their child. If the parent makes a verbal request, the LEA must inform the parent that the request must be in writing. The LEA procedure should also include documentation of the date the parent made the request, the reason for the request, and the response by school personnel.

The LEA has 10 calendar days to request parental consent for an evaluation. During this time, the LEA should collect data and information regarding the suspected disability. The Review of Existing Evaluation Data (REED) process would be helpful, but is not required, in this situation. In those 10 days, the LEA must respond to the request with a written notice.

The district may decide to:Initiate an evaluation and request parental 1. consent. The written notice shall contain:

The reason or reasons the evaluation is being • sought and the nature of the evaluation.A description of the types of special education •

Process for Determining the 5. Existence of a Specific Learning Disability (SLD)—LEAs must publicly post on their website, or make public through other means, the process or combination of processes which will be used by the LEA to determine the existence of an SLD.

It is recommended that LEAs discontinue the use of the term “pre-referral” activities and use the term “general education interventions.” This would include general education activities provided to students who need additional academic and behavioral support to succeed in a general education environment.

Students may be referred to any of the general • education activities provided in a school without obtaining parental consent.Parental consent is required when the LEA is • proposing to conduct an initial evaluation to determine if the student qualifies as a student with a disability.Often, the term “referral to special education” is • confused with a “request for an initial evaluation.” A referral may initiate the process to request an initial evaluation.

II. Request for Initial Evaluation

A. Parent or LEA InitiatedEither a parent of a student or a public agency may initiate a request for an initial evaluation to determine if the student is a student with a disability and in need of special education programs or services. § 300.301(b)

Within 10 calendar days of receipt 1. of a written referral of a student suspected of having a disability, and before any formal evaluation designed to determine eligibility for special education programs and services, the public agency shall notify the parent and shall request written consent to evaluate. The written notice shall contain:

The reason or reasons an a. evaluation is sought and the nature of the evaluation.A description of the types of b. special education programs and

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programs and services currently available within the intermediate school district.All the requirements under Prior Notice. • §300.503(b)

Not initiate an evaluation and request parental 2. consent because either it:

Communicated with the parent and discussed a. the options for early intervening activities and agreed to review progress at a further date. LEAs cannot require that a student participate in early intervening activities prior to a request for an initial evaluation. If the parent agrees to the general education interventions, no consent is required at that time, but written notice must be provided which shall contain:

The reason for the refusal (i.e., parent • and district agreement to implement early intervening activities), including the dates and results of the meetings with the parent.The projected date of review.• All the requirements under Prior Notice. • §300.503(b)

Reviewed the current data and determined the b. data did not support the need for an evaluation to determine that the student is a student with a disability who needs special education services. The LEA must provide the parent with written notice which shall contain:

The rationale for their refusal.• All the requirements under Prior Notice. • §300.503(b)

Regardless of the option chosen, the MDE recommends the LEA:

Have written procedures for making decisions • about any request for an initial evaluation.Use the REED process to review all relevant data • and document the results on the REED form to give support to their decision.Include all components of the prior written notice • requirements in their written response to the parent.

Child Find in the IDEA requires that all students with disabilities residing in the state, regardless of the severity of their disability, who are in need of special education and related services are identified, located, and evaluated. § 300.111

A school district must not delay or deny an otherwise appropriate referral or request for an evaluation based on a district’s use of a response to scientific, research-based intervention process.

An LEA is not considered to have a basis of knowledge under §300.534(b) merely by receiving

services currently available within the ISD included in the notice. R 340.1721All the federal requirements c. under Prior Notice. §300.503(b)

NOTICE REQUIRED

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If prior to a referral, a child has d. not made adequate progress after an appropriate time when provided instruction using a response to a scientific, research-based intervention process, the LEA must promptly request parental consent to evaluate. § 300.309(c)

CONSENT REQUIRED

This notice requirement can be satisfied through a parent information letter which describes the school’s instructional program (response to a scientific, research-based instruction) which is distributed to all parents, or included in a school handbook, enrollment packet, school website, etc.

There should be individual written communication with parents when students receive additional instruction beyond the whole class instruction (e.g., moving from one tier to another).

This applies to both in-state and out-of-state transfers.

Screening activities are not considered to be an evaluation for eligibility for special education. This has implications for data collection during an RtI process by an LEA. At the point at which an LEA moves from screening data to the collection for the purpose of scientific research-based interventions, the parent must be informed of the process.

Specific to LEAs involved in a e. response to scientific, research-based interventions within their general education program, part of the required documentation of the determination of eligibility for a student with an SLD is that the parent was notified prior to the request for an initial evaluation about:

The state’s policies regarding i. the amount and nature of student performance data that would be collected and the general education services that would be provided.Strategies for increasing the ii. student’s rate of learning.The parent’s right to request iii. an evaluation. § 300.311(a)(7)(ii)

NOTICE REQUIRED

B. Transfer StudentsWhen a student moves into an LEA and the LEA becomes aware that the student was in the process of an initial evaluation (which has not been completed):

The receiving LEA must: 1. Contact the sending LEA to a. coordinate completion of the assessment specified in the

services under early intervening services. However, if a parent or teacher of a student receiving early intervening activities expresses a concern in writing to the appropriate agency personnel that the student may need special education and related services, the LEA would be deemed to have knowledge that the student may be a student with a disability. Fed. Reg. p. 46727 (2006)

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evaluation plan (informed consent form). §300.304(c)(5)and § 300.322(a)(1)Proceed with the evaluation as b. expeditiously as possible. The 30 school day timeline does not apply if the LEA is making sufficient progress to ensure a prompt completion of the evaluation and the IEP and the LEA and the parent agree to a specific time when the evaluation and the IEP will be completed. § 300.301(d)(2) and § 300.301(e)

ACQUIRE PARENTAL CONSENT FORMFROMSENDINGLEA

III. Initial Evaluation

A. Consent

Within 10 calendar days of receipt 1. of a written request for an initial evaluation of a student suspected of having a disability, the LEA must request informed parental consent to conduct an evaluation to determine if a student qualifies as a student with a disability. R 340.1721

NOTICE REQUIRED

The LEA must respond and request parental consent within 10 calendar days. There is no timeline for the parent to respond. The LEA should document when they sent the request for parental consent and any additional attempts to contact the parent.

If after repeated attempts to obtain this information the LEA does not receive documentation, the LEA must make a decision if this is a student suspected to have a disability and restart the evaluation process by requesting parental consent.

Parents must provide consent in 2. writing. § 300.9

CONSENT REQUIRED

Rules do not require that parental consent be obtained on a standard form but the rules do require that consent be in writing. Documentation of when and how the LEA provided notice and obtained written parental consent is required for monitoring or due process or state complaint purposes.

The sending LEA must:2. Include the request for initial a. evaluation and signed parental consent and any completed reports in the cumulative records to be sent to the receiving LEA. §300.304(c)(5)and§300.323(a)Close out the student file and b. include the reasons the student’s file is no longer active in the LEA. The timeline ends in the sending LEA.

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Parental consent is 3. not required before:

Reviewing existing data as part of a. an evaluation or a reevaluation. § 300.300(d)(1)(i)Administering a test or other b. evaluation that is administered to all students unless, before administration of that test or evaluation, consent is required of the parents of all students. § 300.300(d)(1)(ii)The screening of a student by a c. teacher or specialist to determine appropriate instructional strategies for curriculum implementation. § 300.302

If the parent refuses consent: 4. § 300.300(a)(3)(i); § 300.300(a)(3)(ii)

The refusal should be a. documented on the request for consent form.The LEA may request a hearing b. to override the parent refusal.

If a parent refuses consent or fails to respond to a request for consent, the LEA may, but is not required to, pursue the initial evaluation or reevaluation of a student through mediation or the hearing process. If the LEA declines to pursue the evaluation, it does not violate its obligations to evaluate students with a suspected disability.

If a parent of a student who is home schooled or placed in a private school by the parent at the parent’s expense does not provide consent for an initial evaluation or a reevaluation, or the parent fails to respond to a request to provide consent, the public agency:

May not use the consent override procedures 1. (mediation procedures or due process procedures).Is not required to consider the student eligible 2. for services under the requirements relating to parentally-placed private school students with disabilities. §§ 300.132 through 300.144

B. Notice§300.9;§300.300;§300.503

The definition of consent requires a parent to be fully informed of all information relevant to the purpose for which consent is sought. Best practice would be to communicate with the parent to review and explain the written proposal. The LEA must make reasonable efforts to explain the proposal to the parent for whom English is not the primary language and they must provide reasonable accommodations to allow parents who have disabilities themselves to participate and give informed consent.

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The Michigan Procedural Safeguards Notice document meets this requirement.

For a parent to be able to provide 1. informed consent, the written notice must include:

The reason for referral.a. The evaluation plan.b. A description of each evaluation c. procedure, assessment, record, or report the agency used as a basis for the proposed evaluation plan.

A statement that the parents d. have protection under the procedural safeguards.

IV. Individualized Education Program (IEP)

A.ParentParticipation/Invitation§ 300.322

Each public agency must take 1. steps to ensure that the parent of a student with a disability is present at each IEP team meeting or is afforded the opportunity to participate, including:

Evaluations must be based on the reason for referral or request for an evaluation. They should be broad enough to capture the eligibility but not so broad so that the parent is not aware of the intent of the assessments.

The use of a laundry list of evaluations or use of “other assessments as deemed appropriate” does not constitute informed consent.

Notifying the parent of the a. meeting early enough to ensure that he or she will have an opportunity to attend.Scheduling the meeting at a b. mutually agreed upon time and place.

There is nothing in federal regulation or Michigan rules which defines “early enough.” LEAs should contact parents prior to setting a meeting to determine a mutually agreed upon time. That would ensure meeting this requirement. If LEAs do schedule meetings without prior input, the invitation should clearly give the parent notice that if the date and time are not agreeable, they have the right to contact the LEA to discuss a mutually agreed upon time and place.

Note: LEAs must use other methods to ensure parent participation if the parent cannot attend the IEP meeting (e.g., individual or conference telephone calls). The mutually agreeable time and location requirements also give the LEA some rights in setting

Sources for the parents to obtain e. assistance in understanding the notice.A description of other options f. that the IEP team considered and the reasons why the options were rejected.A description of other factors g. that are relevant to the LEA’s proposed evaluation plan.

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The notice required under 2. paragraph 1,a of this section must indicate the purpose, time, and location of the meeting and who will be in attendance, including individuals who have knowledge or special expertise about the student.

For an initial IEP team meeting for 3. a student previously served under Part C, an invitation must, at the request of the parent, be sent to the Part C service coordinator or other representatives of the Part C system.

For a student with a disability 4. beginning not later than the first IEP to be in effect when the student turns 16, or younger if determined appropriate by the IEP team, the notice also must:

Indicate that a purpose of the a. meeting will be the consideration of the postsecondary goals and transition services for the student, in accordance with § 300.320(b).Indicate that the agency will b. invite the student.Identify any other agency c. that will be invited to send a representative.

NOTICE REQUIRED;CONSENT REQUIRED

parameters on unreasonable demands to meet at times when staff typically are not available.

For monitoring, due process, and state complaint purposes, LEAs should document attempts to reach mutual agreement, including notation of alternative dates and a variety of times offered, consideration of parent factors such as work schedules and child care, and the actual opportunity to reschedule meetings.

The notice provision for parent invitation to an IEP meeting does not require written notice. The intent of the invitation is mainly to inform parents about the IEP meeting and provide them with relevant information about it (e.g., the purpose, time, and place of the meeting, and who will be in attendance).

The key factor is that LEAs effectively communicate with parents about the upcoming IEP meeting, and attempt to arrange a mutually agreed upon time and place for the meeting.

LEAs are again reminded that they must document the communication with the parent should any questions arise during monitoring, due process, or state complaints. Fed.Reg.pp.12586-7(1999)

LEAs must obtain consent of the parents or a child who has reached the age of majority, before inviting a representative of any participating agency that is likely to be responsible for providing or paying for transition services. § 300.321(b)(3)

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B. Initial Provision of Services§ 300.300(b); R 340.1722a

Parental consent is required for the initial provision of services.

While subsequent IEP team proposals for programs and services do not require parental consent to implement, parents continue to be a required IEP team member and their participation in the development of the IEP is crucial.

If a student with a disability is to 4. be provided special education or related services for the first time, then the parent has 10 calendar days after receipt of the notice from the superintendent to provide the public agency with written consent to provide special education programs and services. (See timelines related to IEP notice at IV,C,3.)

If a parent does not provide written consent or refusal within 10 calendar days of receipt of Notice, it is recommended that the LEA (after making reasonable attempts to obtain informed consent and documenting additional attempts to contact the parent) inform the parent in writing of the LEA’s decision to close the IEP process without implementation.

The LEA must make reasonable 1. efforts to obtain informed consent from the parent for the initial provision of special education and related services to the student.


If the parent of a student fails to 2. respond or refuses to consent to services, the LEA may not use the due process procedures in order to obtain agreement or a ruling that the services may be provided to the student.

If the parent of the student refuses 3. to consent to the initial provision of special education and related services, or the parent fails to respond to a request to provide consent for the initial provision of special education and related services, the LEA:

Will not be considered to be in a. violation of the requirement to make available a FAPE to the student for the failure to provide the student with the special education and related services for which the public agency requests consent.Is not required to convene an IEP b. team meeting or develop an IEP for the student for the special education and related services for which the LEA requests such consent.

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C.Annual/PeriodicRevieworReevaluation IEP§§ 300.324(b) and 300.303

Each LEA must ensure that the IEP 1. team review the IEP periodically, but not less than annually to determine whether the annual goals for the student are being achieved, and revise the IEP as appropriate, to address any lack of expected progress toward the annual goals.

Each LEA must ensure that a 2. reevaluation of each student with a disability is conducted at least once every three years, unless the parent and the LEA agree that a reevaluation is unnecessary.

NOTICE REQUIRED

Timelines3. The superintendent of the school a. district of residence, upon receipt of the individualized education program, shall, within 7 calendar days, provide written notice to the parent of the agency’s intent to implement special education programs and services. The notice shall identify where the programs and services are to be provided and when the individualized education program begins.The parent, upon receipt b. of notification from the superintendent, shall have the right, at any time, to appeal the decision under R 340.1724. If the parent does not appeal, then the superintendent shall initiate the individualized education program as soon as possible, but not later than 15 school days after the parent has been notified. An initiation date may be later than 15 school days if clearly specified in the individualized education program; however, a projected initiation date shall not be used to deny or delay programs or services because they are not available and shall not be used for purposes of administrative convenience.

Whenever an LEA proposes to initiate or change the educational placement of a student, the proposed initiation or change requires the content listed in §300.503 Prior Written Notice section (see definition Prior Notice by the LEA; Content of Notice on page 1).

The IEP itself contains most of the requirements of this section so long as it is a final document and reflects the consensus of the entire IEP team. To fully meet the requirements of §300.503, the LEA may inform the parent of their intent by referencing the IEP in their proposal. The notice must also include other requirements of §300.503, including other options the LEA considered and the reasons those options were rejected and a description of other factors that are relevant to the LEA’s proposal or refusal. The Michigan Department of Education (MDE) IEP and Notice model forms meet the requirements under §300.503. Any changes to the IEP after the notice would require a new notice.

District and ISD IEP forms must contain these additional requirements to be in compliance with §300.503.

See the IEP Quick Reference Guide Section 1: Demographic Information for explanation regarding dates to be entered in the model IEP form.

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States may differ in their standards for the determination of eligibility. However, the student remains eligible as a student with a disability until an IEP determines that he or she is no longer eligible. If a receiving LEA is questioning the eligibility of a transfer student from out of state, the LEA must proceed as though it were an initial evaluation, which requires parental consent. Fed. Reg. p. 46682 (2006)

D. IEP Amendment§ 300.324(a)(4)(i)

LEAs must provide a parent with prior written notice, which includes the amended language, if an IEP is amended.

In making changes to a student’s 1. IEP after the annual IEP team meeting for a school year, the parent of a student with a disability and the LEA may agree not to convene an IEP team meeting for the purposes of making those changes, and instead may develop a written document to amend or modify the student’s current IEP.

If changes are made to the 2. student’s IEP, the public agency must ensure that the student’s IEP team is informed of those changes.

NOTICE REQUIRED

E. Transfers From Another State§ 300.323(f); Fed. Reg. p. 46682 (2006); R 340.1721; R 340.1721a; R.340.1722e

Under the IDEA and the MARSE, if a 1. student with a disability (who had an IEP that was in effect in a previous public agency in another state) transfers to a public agency in a new state and enrolls in a new school within the same school year, the new public agency (in consultation with the parent) must immediately provide the student with a FAPE (including services comparable to those described in the student’s IEP from the previous public agency) until the public agency:

Conducts an evaluation pursuant a. to §§ 300.304 through 300.306 (if determined to be necessary by the new public agency).


Develops, adopts, and b. implements a new IEP, if appropriate, that meets the applicable requirements in §§ 300.320 through 300.324.

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To facilitate the transition for a 2. student who transfers from another state, the new public agency in which the student enrolls must take reasonable steps to promptly obtain the student’s records, including the IEP and supporting documents and any other records related to the provision of special education or related services to the student, from the previous public agency in which the student was enrolled.


Under the MARSE, the LEA shall do 3. one of the following:

With the parent’s consent, a. immediately implement the student’s current IEP.


With the parent’s consent, b. immediately place the student in an appropriate program or service and convene an IEP team meeting within 30 school days to develop an IEP.


If the parent does not provide c. consent for placement, then the LEA, in consultation with the parent, shall provide a FAPE to the student, including services comparable to those described in the student’s IEP from the previous public agency. An IEP team meeting shall be convened to develop a new IEP as soon as possible, but not later than 30 school days.

NOTICE REQUIRED

LEAs must provide parents with written notice of the proposed plan, including all the requirements in §300.503(b).

The LEA shall obtain parental consent and do one 1. of the following:

Immediately provide a FAPE to the student, a. including services comparable to those described in the student’s IEP from the previous public agency. § 300.323(f)Provide the student with appropriate programs b. and/or services and convene an IEP team meeting within 30 school days. R 340.1722eIf the parent does not provide consent for c. placement, the LEA shall consult with the parent, and provide a FAPE to the student, including services comparable to those described in the student’s IEP from the previous public agency, and hold an IEP team meeting within 30 school days to develop a new IEP.

Conduct a REED to determine what, if any, 2. evaluations or assessments are necessary.

If eligibility is not a question, do one of the a. following:

Implement the current IEP if appropriate.i. Develop, adopt, and implement a new IEP ii. within 30 school days from enrollment.

If eligibility is a question:b. Obtain parental consent to conduct an i. initial evaluation. (Note: The REED process may be used to assist in determining which evaluations are necessary.)Develop, adopt, and implement a new IEP.ii.

If it is determined that more evaluations are c. needed, but eligibility is not a question, follow the REED process for reevaluations.

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LEAs must provide parents with written notice of the proposed plan, including all the requirements in §300.503(b). Under the MARSE, the LEA shall obtain parental consent and do one of the following:

With the parent’s consent, immediately implement 1. the student’s current IEP.With the parent’s consent, immediately place the 2. student in an appropriate program or service and convene an IEP team meeting within 30 school days to develop an IEP. In order to meet the informed consent requirement of the IDEA, the proposed program must be in writing.If the parent does not provide consent for 3. placement, then the LEA, in consultation with the parents, shall provide a FAPE to the student, including services comparable to those described in the student’s IEP from the previous public agency. An IEP team meeting shall be convened to develop a new IEP as soon as possible, but not later than 30 school days from enrollment or the date the LEA became aware the student had an IEP.

There is no requirement that LEAs conduct a reevaluation to determine eligibility at time of enrollment. At the time that a three year reevaluation is required, the LEA would conduct a REED and determine if sufficient data exists to continue eligibility and determine the student’s needs.

If an LEA chooses not to implement the current IEP from another LEA and places the student in an appropriate program for 30 school days, with parental consent, the LEA may choose to undertake a reevaluation of the student using the REED process to determine what, if any, additional evaluations are necessary.

F. Transfers Within Michigan§ 300.323(e); R 340.1722e

If a student with a disability (who 1. had an IEP that was in effect in a previous public agency in the same state) transfers to a new public agency in the same state and enrolls in a new school within the same school year, the new public agency (in consultation with the parents) must provide a FAPE to the student (including services comparable to those described in the student’s IEP from the previous public agency), until the new public agency either:

Adopts the student’s IEP from the a. previous public agency.Develops, adopts, and b. implements a new IEP that meets the applicable requirements in §§ 300.320 through 300.324.


Delays in obtaining information and reports 3. from the previous LEA may impact timelines for obtaining parental consent for evaluation. However, the LEA must adhere to the 30-school-day timeline for having an IEP in place based on the requirements as set forth in the MARSE. In this case, the LEA would maintain two timelines:

Thirty school days from enrollment, hold an IEP.a. Thirty school days from receipt of parental b. consent, conclude the evaluation process and development of a new IEP.

It is best practice to complete the evaluation process within 30 school days of enrollment.

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G.ExcusalFromIEPTeamMeetings§ 300.321(e)

A required member of the IEP 1. team is not required to attend an IEP team meeting, in whole or in part, if the parent of a student with a disability and the public agency agree, in writing, that the attendance of the member is not necessary because the member’s area of the curriculum or related services is not being modified or discussed in the meeting.

WRITTENAGREEMENTREQUIRED

A required member of the IEP team 2. may be excused from attending an IEP team meeting, 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:

The parent, in writing, and the a. public agency consent to the excusal.The member submits, in writing b. to the parent and the IEP team, input into the development of the IEP prior to the meeting.

Members of the IEP team who may 3. be excused include:

Regular education teacher a. if the student is, or may be, participating in the regular education environment.Special education teacher or, b. where appropriate, special education provider of the student.A representative of the public c. agency.An individual who can interpret d. the instructional implications of evaluation results.


It is not required that the request to excuse a required IEP team member from an IEP team meeting be included in the meeting invitation. (The LEA might not be aware of the need to request an excusal of a member at the time the IEP team meeting notice is sent.)

For similar reasons, it is not required that the IEP team meeting invitation include any written input from an IEP team member who may be excused from the IEP team meeting. Fed. Reg. p. 46678 (2006)

The district must provide the parent with appropriate and sufficient information to ensure that the parent fully understands that the parent is consenting to excuse an IEP team member from attending an IEP team meeting in which the member’s area of the curriculum or related services is being changed or discussed and that if the parent does not consent, the IEP team meeting must be held with that IEP team member in attendance. Fed. Reg. p. 46674 (2006)

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H.IEP/IndividualizedFamilyService Plan (IFSP) for Birth to Five-Year Olds

REQUIRES NOTICE OF IEP TEAM MEETINGANDINITIALOFFEROFSPECIALEDUCATIONPROGRAMS

AND RELATED SERVICES

REQUIRES PARENTAL CONSENT FOR INITIAL PROVISION OF

SPECIALEDUCATIONPROGRAMSAND RELATED SERVICES

Under the IDEA, if the parent of a student parentally placed in a non-public school requests a special education program for their student, the resident LEA has the responsibility to offer a FAPE to the student even if the student attends a non-public school located in another LEA. The LEA in which the non-public school is located (if not the resident LEA) must obtain parental consent in order to invite the resident LEA to the IEP or release any information to the resident LEA.

I. Parentally Placed Students in Private Schools§ 300.622(b)(3)

If a student is enrolled, or is going 1. to enroll in a private school that is not located in the LEA of the parent’s residence, parental consent must be obtained before any personally identifiable information about the student is released between officials in the LEA where the private school is located and officials in the LEA of the parent’s residence. (Federal language uses private school, Michigan uses nonpublic school.)


An LEA providing auxiliary services 2. to a nonpublic school shall notify in writing, no later than April 1 of each school year, each nonpublic school within its LEA as to the nature and extent of such services as contained in its proposed budget.

Within 30 days after receipt of a. such notice, nonpublic schools shall in writing notify the district as to the services that will be needed for nonpublic school students.The LEA shall confirm in writing b. no later than August 1st of each school year to each of the nonpublic schools within its district the nature and extent of such services as contained in its

Children birth to three eligible for Part C of the IDEA shall have an IFSP. In Michigan, children birth to five who are eligible for special education programs and services shall receive an IEP, following the notice and consent procedures currently in place. When a child birth to three is eligible for Part C of the IDEA and special education, the child should have an IFSP and IEP or use a combined IFSP/IEP form.

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final budget as adopted by the LEA Board of Education.R 340.293

NOTICE REQUIRED

V. Reevaluations§ 300.300(c)

For students with IEPs who are receiving special education services, if the parent or staff request additional assessments for a question of eligibility, it is not considered a request for an initial evaluation but should be handled through the REED procedures which includes written parental consent.

A. The LEA must obtain informed parental consent, in accordance with § 300.300(a)(1), (i.e., provide notice and obtain consent) prior to conducting any reevaluation of a student with a disability.

Prior written notice for graduation may be included as part of the final IEP process before graduation.

Check graduation as the purpose for the IEP team meeting on the:

Invitation to attend the IEP team meeting.1. IEP form. 2. Notice form.3.

J.Graduation§ 300.102(a)(3)The obligation to make a FAPE available to all students with disabilities does not apply with respect to students with disabilities who have graduated from high school with a regular high school diploma.

Graduation from high school with 1. a regular high school diploma constitutes a change in placement, requiring written prior notice.

NOTICE REQUIRED

The term “regular high school 2. diploma” does not include an alternative degree that is not fully aligned with the state’s academic standards, such as a certificate of completion or a general educational development (GED) credential.

Although an evaluation is not 3. required before the termination of a student’s eligibility due to graduation with a regular diploma, or due to exceeding the age eligibility for a FAPE, the LEA must provide the student with a summary of the student’s academic achievement and functional performance, which shall include recommendations on how to assist the student in meeting the student’s postsecondary goals. §300.305(e)(2-3)

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If the parent refuses to consent 1. to a reevaluation, the public agency may, but is not required to, pursue the reevaluation by using the consent override procedures described in paragraph (a)(3) of this section.

The public agency does not violate 2. its obligation under § 300.111 and §§ 300.301 through 300.311 if it declines to pursue an evaluation or reevaluation.


The requirements for notice and consent that apply to three-year reevaluations in the federal regulations also apply to evaluations that are requested at any time subsequent to any initial evaluation or reevaluation.

The term ‘reevaluation’ is used in the federal law to describe any evaluation conducted subsequent to an initial evaluation.

See Definitions, VI. Documenting Reasonable Efforts to Give Notice and Obtain Consent.

The 30-school-day timeline for the completion of the evaluation and the IEP applies unless there is a timeline established that is agreed to in writing by the parent and the district. (The state model REED form includes a location to specify a date for the IEP team meeting.)

See Definitions, VI. Documenting Reasonable Efforts to Give Notice and Obtain Consent.

VI. Evaluation (not part of an initial evaluation or reevaluation)§ 300.304

A. Notice

The public agency must provide 1. notice to the parents of a child with a disability, in accordance with §300.503, that describes any evaluation procedures the agency proposes to conduct.

LEA must obtain informed parental 2. consent prior to conducting any reevaluation of a child with a disability.

If the parent refuses to consent a. to the reevaluation, the public agency may, but is not required to, pursue the reevaluation by using the consent override procedures.

B. The informed parental consent described at § 300.300(c)(1) need not be obtained if the public agency can demonstrate that:

It made reasonable efforts to obtain 1. such consent.

The student’s parent has failed to 2. respond.

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VII. Other Considerations

See the MDE, OSE-EIS discipline guidance document for guidance related to the decision to change the placement of a student with a disability.

The decision to change the placement is different from the decision to suspend a student. After a student is suspended, the LEA must determine if this suspension results in a change of placement.

Because districts have different procedures for addressing student discipline, the districts must address in their process who in the district actually makes the decision for a removal that results in a change of placement.

The decision to change the placement can take place at various times in the discipline process. In some districts, building principals make a recommendation for suspension, but the actual decision to suspend the student may be made by another entity: board of education, superintendent, discipline hearing officer, or other designee.

On the date that a district decides a removal results in a change of placement, the parent must be provided with notice of that decision and the Procedural Safeguards Notice must be provided. §300.530(h)

This is also the date that the 10-day timeline for a Manifestation Determination Review (MDR) begins. After the completion of the MDR, the LEA must provide the parent with notice of the outcome, including the results of the MDR, the proposed placement, and other requirements under prior written notice. §300.503

A. Discipline§300.530(h)On the date on which the decision is made to make a removal that constitutes a change of placement of a student with a disability because of a violation of a code of student conduct, the LEA must notify the parent of that decision and provide the parent the procedural safeguards notice.

NOTICE REQUIRED

The LEA does not violate its b. obligation if it declines to pursue the evaluation or reevaluation.

The informed parental consent need 3. not be obtained if the public agency can demonstrate that – (i) It made reasonable efforts to obtain such consent; and (ii) The child’s parent has failed to respond.§ 300.300(c)

NOTICE REQUIRED;REQUEST FOR CONSENT REQUIRED

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B. Transfer of Parental Rights Under the IDEA, a state may 1. provide that when a student with a disability reaches the age of majority under state law that applies to all students (except for a student with a disability who has been determined to be incompetent under state law):

The public agency must provide a. any notice required by this part to both the student and the parent.All rights accorded to the parent b. under Part B of the Act transfer to the student.All rights accorded to the parent c. under Part B of the Act transfer to students who are incarcerated in an adult or juvenile, state, or local correctional institution. §300.520

NOTICE REQUIRED

Beginning no later than one year 2. before the student reaches the age of majority, the IEP must include a statement that the student has been informed of the student’s rights that will transfer to the student on reaching the age of majority. § 300.320(c)

Under the MARSE, the definition of 3. parent includes the affected student or youth with a disability when the student or youth with a disability reaches 18 years of age, if a legal guardian has not been appointed by appropriate court proceedings. R 340.1701b(e)(viii)

C. Independent Educational Evaluation (IEE)§300.502

The parent of a student with a 1. disability has the right to obtain an independent educational evaluation (IEE) of the student.

Each LEA must provide to the 2. parent upon request for an IEE:

Criteria regarding credentials for a. qualified examiners.

This may be accomplished through a letter to the parent and the student.

Michigan addresses B,1,a, (all rights accorded to the parent under Part B of the Act transfer to the student) as part of its definition of “parent” in R 340.1701b(e)(viii), so that once a student turns 18 and a legal guardian has not been appointed by appropriate court proceedings, all rights are transferred to the student. This means that all notices that were previously provided to the parent must be provided to the student and all consent that was required of the parent must be provided by the student.

However, there are two exceptions which address the issue of notices that were previously provided to parents.

Notice/Invitation to IEP team meeting:1. The IDEA permits the student who has reached • the age of majority or the LEA to invite other individuals who have knowledge or special expertise regarding the student to the student’s IEP team meeting (including the parent, if it has been determined that the parent possesses the requisite knowledge or special expertise). §300.321(a)(6)andLettertoBieker,OSEPJuly20,2000

“Release of Information” under FERPA regulations: 2. Consent is not required from a student who has • reached the age of majority for the disclosure of information to their parent if the student is a dependent as defined in the Internal Revenue Code of 1986 (i.e., the student lives at home with his or her parent and is claimed as a dependent by the parent for federal income tax purposes). 34 CFR Part 99.31(a)(8)

See the MARSE R 340.1723c for language related to Michigan requirements and timelines.

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Suggested sources and locations.b. Procedures for reimbursement.c. Reasonable expected costs.d. Notification that the parent is e. not restricted to choosing from sources suggested by the LEA.Notification prior to the f. evaluation whether the examiner who was contracted to provide an IEE provides services to the LEA.

INFORMATION ANDNOTICE REQUIRED

For the purposes of this part:3. “IEE” means an evaluation a. conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student.“Public expense” means that the b. public agency either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to the parent.

PARENTMUSTGIVEWRITTEN NOTICE

D. Medicaid§300.154(d)

A public agency may use the 1. Medicaid or other public benefits or insurance programs in which a student participates to provide or pay for services required under this part, as permitted under the public benefits or insurance program.

A public agency must obtain 2. parental consent each time access to public benefits or insurance is sought.


Consent requires that:The parent has been fully informed of all 1. information relevant to the request for access to Medicaid benefits.The parent understands and agrees in writing 2. to the carrying out of the activity; the consent describes the activity and lists the records that will be released and to whom.The parent understands that the granting of 3. consent is voluntary and may be revoked at any time.If a parent revokes consent, that revocation is not 4. retroactive.

This consent may be obtained one time for the specific services and duration of services identified in the student’s IEP. OSEPlettertoHill,2007

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A public agency must notify the 3. parent that the parent’s refusal to allow access to their public benefits or insurance does not relieve the public agency of its responsibility to ensure that all required services are provided at no cost to the parent.

NOTICE REQUIRED

See Section on Transfer of Parental Rights for further information on Release of Information.

See Family Educational Rights and Privacy Act, 34 CFR § 99 for information on educational records.

E. Release of Information§ 300.622

Parental consent must be obtained 1. before personally identifiable information is disclosed to parties, other than officials of participating agencies, unless the information is contained in education records and the disclosure is authorized without parental consent.

Parental consent is not required 2. before personally identifiable information is released to officials of participating agencies for purposes of meeting a requirement of this part.

Parental consent, or the consent of 3. an eligible student who has reached the age of majority under state law, must be obtained before personally identifiable information is released to officials of participating agencies providing or paying for transition services.

If a student is enrolled, or is going 4. to enroll in a private school that is not located in the LEA of the parent’s residence, parental consent must be obtained before any personally identifiable information about the student is released between officials in the LEA where the private school is located and officials in the LEA of the parent’s residence.


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F. Due Process Complaints§300.507;R340.1724f

A parent or a public agency may 1. file a due process complaint on any matters relating to any of the following:

The identification, evaluation, a. or educational placement of a student with a disability:

The provision of a FAPE to the i. student. The provision of appropriate ii. Part C services to the student or student’s family.

Assignment of financial b. obligations for Part C services to the parents. Determination that behavior c. was not a manifestation of the student’s disability.Determination of an appropriate d. interim alternative educational setting by the IEP team.Placement in an interim e. alternative setting for not more that 45 school days.Maintaining the current f. placement which is substantially likely to result in injury to the student or others.

The LEA must inform the parent of 2. any free or low-cost legal and other relevant services available in the area in either of the following cases:

The parent requests the a. information.The parent or the agency files a b. due process complaint.

NOTICE REQUIRED

G.ParentalRevocationofConsent for Continued Special Education and Related Services§§ 300.9 and 300.300

The IDEA has been amended to 1. permit parents to unilaterally withdraw their student from continued receipt of special education and related services by revoking their consent for continued provision of special education and related services.

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The parental revocation of a. consent must be in writing.

REVOCATION INWRITINGREQUIRED

The MDE model Revocation of Parental Consent form.

The MDE model Notice of Cessation in Response to Revocation of Parental Consent form.

Upon revocation of consent, the b. LEA must provide the parent with written notice, which includes the following information:

The student will no longer be i. identified as a student with a disability.The student’s new educational ii. placement.The date special education iii. programs and services will end.The student is no longer iv. entitled to receive a FAPE under the IDEA and is no longer entitled to protections received when identified as a student eligible for special education programs or services and the LEA will not be required to convene an IEP team meeting.The student’s records will v. not be amended to remove references to the receipt of special education programs and services.After the revocation is vi. effective, the parent may subsequently refer the student for special education programs and services and request an initial evaluation.A copy of the Procedural vii. Safeguards Notice.

NOTICE REQUIRED

H. Electronic mail§300.505A parent of a student with a disability may elect to receive notices by email communication if the public agency makes that option available.

Districts are not required to make this option available. The LEAs are reminded that notices that contain personally identifiable information are protected under the FERPA.

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Appendix 28

Proposed Action by LEAThat Requires Notice

Description of Requirements Included in Notice Consent Requirement

Request for Initial Evaluation*§300.503(b)(1-7)§ 300.300(a)§ 300.304(a)R 340.1721

Request to conduct an initial evaluation to determine if the student qualifies as a student with a disability. § 300.300(a)

In the IDEA, the Notice must include:

A description of the action •proposed or refused by the agency.An explanation of why the agency •proposes or refuses to take the action.A description of each evaluation •procedure, assessment, record, or report the agency used as a basis for the proposed or refused action.A statement that the parents •of a child with a disability have protections under the procedural safeguards of this part and, if this notice is not an initial request for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained.Sources for parents to contact to •obtain assistance in understanding the provisions of this part.A description of other options that •the IEP team considered and the reasons why those options were rejected.A description of other factors •that are relevant to the agency’s proposal or refusal.Procedural Safeguards Notice •if an initial evaluation.

Michigan Notice rules also require:

The reasons the evaluation is 1. being sought and the nature of the evaluation.A description of the types of 2. special education programs and services currently available within the ISD. (Parent Handbook)

Requires request for consent for the proposed initial evaluation within 10 calendar days of receipt of referral (request for an initial evaluation).

If a parent refuses consent or fails to respond to a request for consent, the district may, but is not required to, pursue the initial evaluation or reevaluation of a child through mediation or the hearing process. The LEA does not violate its obligations to evaluate students with a suspected disability.

If a parent of a student who is home schooled or placed in a private school by the parent at the parent’s expense, does not provide consent for an initial evaluation or a reevaluation, or the parent fails to respond to a request to provide consent, the public agency:

May not use the consent override 1. procedures (described elsewhere in § 300.300).Is not required to consider the 2. student eligible for services under the requirements relating to parentally-placed private school students with disabilities. §§ 300.132 through 300.144

Actions designated with an asterisk (*) include model notice and consent forms located on the MichiganDepartmentofEducation(MDE)websiteatwww.michigan.gov/ose-eis.

Appendix:

Actions Requiring Notice or Consent

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ParentParticipation/Invitation*§ 300.322

Invitation to participate in an IEP team meeting.

Notice1. must be early enough to ensure that the parent will have an opportunity to attend. Meetings must be scheduled at a mutually agreed on time and place.Notice2. must include the purpose, time, location, and attendees of the meeting, including individuals who have knowledge or special expertise about the student.For an initial IEP team meeting 3. for a student previously served under Part C, an invitation must, at the request of the parent, be sent to the Part C service coordinator. § 300.321(f)Beginning not later than the 4. first IEP to be in effect when the student turns 16, or younger if determined appropriate by the IEP team, the invitation must include: § 300.322(b)(2)(i)

A purpose of the meeting is the • consideration of postsecondary goals and transition services.An invitation to the student to • attend.Identification of any other • agency that is likely to be responsible for providing or paying for transition services that will be invited to send a representative.

Requires consent of parent or student over the age of 18 to consent to invite a representative of an agency likely to provide transition services to the transition IEP team meeting.

Initial Provision of Services*§ 300.300(b); R 340.1722a

For initial provision of special education programs and services.

See description of 1. Notice requirements above under Request for Initial Evaluation.Within 7 days of the completion 2. of the IEP, the LEA shall provide written notice of the agency’s intent to implement special education programs and services.Identify where the programs and 3. services are to be provided.Identify when the IEP begins.4.

Requires parental consent for the initial provision of the proposed IEP within 10 days of the receipt of the notice from the LEA.

If the parent refuses consent or does not respond to a request for consent, the LEA must make reasonable efforts to obtain informed consent, but may not place the student in special education without consent.

Annual/PeriodicRevieworReevaluation IEP*§300.503

Any IEP other than the initial IEP.

See description of Notice requirements above under Request for Initial Evaluation.

No consent required.

Amendment§ 300.324(a)(4)(i)



Appendix 29

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Transfer Students*§ 300.323(e-f);R 340.1721; R 340.1721a;R 340.1722e

For students who move into the district with an IEP.

Notice required. For in-state transfer students, requires parental consent to do one of the following:

Implement the student’s current 1. IEP as written from the previous LEA.Provide appropriate programs 2. and/or services and convene an IEP team meeting within 30 days.

For out of state students, if it is determined that an evaluation must be undertaken to determine eligibility under Michigan rules, consent for an initial evaluation must be obtained.

If the parent does not provide consent for placement, then the school district, in consultation with the parents, shall provide a FAPE to the student, including services comparable to those described in the student’s IEP from the previous public agency. An IEP team meeting shall be convened to develop a new IEP as soon as possible, but not later than 30 school days.

Excusal From IEP Team Meeting*§ 300.321(e)

Excusal of IEP team member.

When the IEP team member’s area is not being changed or modified: No notice required.

When IEP team member’s area isbeingchangedormodified: The LEA must provide the parent with appropriate and sufficient information to ensure that the parent fully understands that the parent is consenting to excuse an IEP team member from attending an IEP team meeting in which the member’s area of the curriculum or related services is being changed or discussed and that if the parent does not consent, the IEP team meeting must be held with that IEP team member in attendance. Fed. Reg. p. 46674 (2006)

Parent and LEA agree in writing to the excusal.

Parent in writing and LEA consent to the excusal.

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IFSP/IEPforBirthtoFive-Year Olds

IFSP, IEP or combined IFSP/IEP for children birth to five.

Children birth to five who are eligible for special education services in Michigan receive an IEP following notice and consent procedures in place for students kindergarten through twenty-five.

When a child birth to three is eligible for Part C of the IDEA and special education, the child should have an IFSP and an IEP or use a combined IFSP/IEP form.

Requires parental consent for the initial provision of the proposed IEP within 10 days of the receipt of the notice from the LEA.

Parentally Placed Students in Private School IEP*§ 300.622(b)(3)

To invite the resident LEA representative to the IEP team meeting for a parentally placed private school student who lives in a district other than the district in which the private school is located.

No notice required. Requires consent to invite a representative of the resident district to attend the IEP team meeting held by the district in which the private school is located.

Graduation*§ 300.102(a)(3)

Graduation from high school with a regular high school diploma constitutes a change of placement.

Requires prior written notice of the proposed change of educational placement.



Reevaluations*§ 300.300(c); § 300.503; § 300.304(a)

To conduct a reevaluation.


Parental consent is required unless the LEA made reasonable efforts to obtain such consent and the student’s parent has failed to respond. § 300.300(c)(2)

Evaluation (not part of an initial evaluation or reevaluation)§ 300.304

The public agency must provide notice to the parents of a child with a disability, in accordance with § 300.503, that describes any evaluation procedures the agency proposes to conduct.

Notice and Request for Consent required.

Parental consent is required unless the LEA made reasonable efforts to obtain such consent and the student’s parent has failed to respond. § 300.300(c)(2)

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Discipline§300.530(h)

Removals that constitute a change of placement.

On the date on which the decision is made to make a removal that constitutes a change of placement of a student with a disability because of a violation of a code of student conduct, the LEA must notify the parent of that decision, and provide the parent the Procedural Safeguards Notice described in § 300.504.

Within 10 days of the decision to change the placement, the LEA must hold a Manifestation Determination Review (MDR). After the completion of the MDR, the LEA must provide the parent with notice of the outcome, including the results of the MDR, the proposed placement, and other requirements under prior written notice. §300.503


Transfer of Parental Rights§300.520

Requires notice to the student and the parent of a student who reaches the age of majority (18) that all of the rights that the parent held under the IDEA transfer to the student.


Independent Educational Evaluation (IEE) R 340.1723c

For an Independent Educational Evaluation (IEE).

Each public agency shall provide parents with information about independent educational evaluations at public expense. The information shall include all of the following:

Criteria regarding credentials for 1. qualified examiners.Suggested sources and locations.2. Procedures for reimbursement.3. Reasonable expected costs.4. Notification that the parent is 5. not restricted to choosing from sources suggested by the public agency.Notification prior to the 6. evaluation whether the examiner who was contracted to provide an IEE provides services to the LEA.

No consent required

Medicaid§300.154

LEAs may use Medicaid benefits in which a student participates to provide or pay for services provided to the student.

The LEA must notify parents of all information relevant to the request for access to Medicaid benefits;the activity and lists the records that will be released and to whom; the granting of consent is voluntary and may be revoked at any time; and that if a parent revokes consent, that revocation is not retroactive.

The LEA must obtain parental consent each time that access to the parent’s public benefits or insurance is sought.

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Release of Information§ 300.622

No notice required. Parental 1. consent must be obtained before personally identifiable information is disclosed to parties other than officials of participating agencies, unless the information is contained in education records and the disclosure is authorized without parental consent under the regulations for the Family Educational Rights and Privacy Act (FERPA, 34 CFR part 99).Parental 2. consent is not required before personally identifiable information is released to officials of participating agencies for purposes of meeting a requirement of these regulations (e.g., LEA, ISD who may be contracted by the resident district to provide programs or services).Parental 3. consent must be obtained before personally identifiable information is released to officials of participating agencies that provide or pay for transition services.For parentally-placed private 4. school students with disabilities, parental consent must be obtained before any personally identifiable information is released between officials in the LEA where the private school is located and the LEA of the parent’s residence.

Procedural Safeguards Notice* §300.504

Procedural Safeguards Notice must be given at least once a year. A copy must also be given when an initial evaluation or parent request for an evaluation occurs, the first time a due process hearing is requested during a school year, when the decision to take disciplinary action is made, and when a parent requests the notice.

The Procedural Safeguards Notice must include a full explanation of all of the procedural safeguards available under § 300.148, §§ 300.151 through 300.153, § 300.300, §§ 300.502 through 300.503, §§ 300.505 through 300.518, § 300.520, §§ 300.530 through 300.536 and §§ 300.610 through 300.625.

The Michigan Department of Education (MDE) Procedural Safeguards Notice meets this requirement.




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Due Process Complaint§300.507

The LEA must inform the parent of any free or low-cost legal and other relevant services available in the area in either of the following cases:

The parent requests the 1. information.The parent or the agency files a 2. due process complaint.

Parental Revocation of Consent for Continued Special Education and Related Services*§ 300.9; § 300.300Amended12/31/08

Parents may unilaterally withdraw their student from continued receipt of special education and related services by revoking their consent for continued provision of special education and related services.

Upon receipt of revocation of consent, the LEA must provide the parent with written notice, which includes the following information:

The student will no longer be 1. identified as a student with a disability.The student’s new educational 2. placement.The date special education 3. programs and services will end.The student is no longer entitled 4. to receive a FAPE under the IDEA, and no longer entitled to protections received when identified as a student eligible for special education programs or services, and the LEA will not be required to convene an IEP team meeting.The student’s records will not be 5. amended to remove references to the receipt of special education programs and services.After the revocation is effective, 6. the parent may subsequently refer the student for special education programs and services and request an initial evaluation.A copy of the Procedural 7. Safeguards Notice.

The parental revocation of consent must be in writing.

Electronic Mail§300.505

The parent may elect to receive notices by an electronic mail communication if the LEA makes that option available.

The LEAs are reminded that personally identifiable notices are protected under the FERPA and require a secure network to ensure privacy.



Appendix 34

DRAFT

Notice and Consent Procedures February 2011 DRAFT · Michael P. Flanagan, Superintendent of Public...

Documents

Transcript of Notice and Consent Procedures February 2011 DRAFT · Michael P. Flanagan, Superintendent of Public...