May a parent refuse an initial assessment for possible special education eligibility? May a parent refuse the initial provision of special education services?
Parental Consent
When is my approval required for assessment?
You have the right to refer your child for special education services. You must give informed, written consent before your child’s first special education assessment can proceed. The parent has at least fifteen (15) days from the receipt of the proposed assessment plan to arrive at a decision. The assessment may begin immediately upon receipt of the consent and must be completed and an IEP developed within sixty (60) days of your consent.
When is my approval required for services?
You must give informed, written consent before your school district can provide your child with special education and related services.
What are the procedures when a parent does not provide consent?
If you do not provide consent for an initial assessment or fail to respond to a request to provide the consent, the school district may pursue the initial assessment by utilizing due process procedures.
If you refuse to consent to the initiation of services, the school district must not provide special education and related services and shall not seek to provide services through due process procedures.
If you consent in writing to the special education and related services for your child but do not consent to all of the components of the IEP, those components of the program to which you have consented must be implemented without delay.
If the school district determines that the proposed special education program component to which you do not consent is necessary to provide a free appropriate public education to your child, a due process hearing must be initiated. If a due process hearing is held, the hearing decision shall be final and binding.
In the case of reevaluations, the school district must document reasonable measures to obtain your consent. If you fail to respond, the school district may proceed with the reevaluation without your consent. (20 USC 1414[a][1][D] and 1414[c]; 34 CFR 300.300; EC 56506[e], 56321[c] and [d], and 56346).
When may I revoke consent?
If at any time subsequent to the initial provision of special education and related services, the parent of a child revokes consent in writing for the continued provision of special education and related services, the public agency:
May not continue to provide special education and related services to the child, but must provide prior written notice in accordance with 34 CFR Section 300.503 before ceasing such services
May not use the procedures in subpart E of Part 300 34 CFR (including the mediation procedures under 34 CFR Section 300.506 or the due process procedures under 34 CFR Sections 300.507 through 300.516) in order to obtain agreement or a ruling that the services may be provided to the child
Will not be considered to be in violation of the requirement to make a free appropriate public education (FAPE) available to the child because of the failure to provide the child with further special education and related services
Is not required to convene an IEP team meeting or develop an IEP under 34 CFR Sections 300.320 and 300.324 for the child for further provision of special education and related services
Please note, in accordance with 34 CFR Section 300.9 (c)(3), that if the parents revoke consent in writing for their child’s receipt of special education services after the child is initially provided special education and related services, the public agency is not required to amend the child’s education records to remove any references to the child’s receipt of special education and related services because of the revocation of consent.
What do I do when the parent will not sign the IEP in disagreement or agreement?
The federal special education law and regulations do not require a child’s parent to sign the IEP. Parents are required to give informed consent before the school can provide services in the initial IEP, but not subsequent IEPs.
http://www.wrightslaw.com/blog/do-i-have-to-sign-the-iep/
You should: (1) make at least three attempts to obtain the parents' signature following the IEP team meeting, using phone calls, letters, home visits, and/or in person meetings at the school site; (2) document your attempts to obtain a signature in phone call logs, letters, conferences and conversation; (3) maintain a copy of all responses from the parent; (4) continue to implement the last agreed upon and implemented IEP; and (5) contact the Due Process Department to discuss the possibility of filing for due process.
http://faculty.virginia.edu/PullenLab/EDIS5141OnlineModules/Mod6/Mod620.html
What is due process?
Due Process Hearing
Student of liberty or property without due process of law, courts have expanded for more than four decades the Fourteenth Amendment's due process protection of public school students. Understanding this principle is essential to representing children in school discipline proceedings.
When is a due process hearing available?
You have the right to request an impartial due process hearing regarding the identification, assessment, and educational placement of your child or the provision of FAPE. The request for a due process hearing must be filed within two years from the date you knew or should have known about the alleged action that forms the basis of the due process complaint. (20 USC 1415[b][6]; 34 CFR 300.507; EC 56501 and 56505[l])
When there is a due process case pending is the school site required to hold the annual or tri-annual IEP team meeting?
Yes. Follow the required timelines for holding IEP team meetings. It is also recommend that you call the due process specialist that is working on the case before convening the IEP team meeting to discuss possible resolutions of parent concerns.
http://faculty.virginia.edu/PullenLab/EDIS5141OnlineModules/Mod6/Mod620.html
May parents record an IEP team meeting on an audiotape or with a video recording device?
Parents can record an IEP team meeting on audiotape if they give the school notice of their intent to record no later than 24 hours before the IEP team meeting. Likewise, the school may record the IEP team meeting if they give the parents notice at least 24 hours before the meeting. If the school initiates the notice of intent to record (i.e., the parent did not give notice first) and the parent objects to taping the meeting, than the school cannot tape the meeting. (There is no provision in California special education law granting parents or the District the right to videotape an IEP meeting.)
http://faculty.virginia.edu/PullenLab/EDIS5141OnlineModules/Mod6/Mod621.html
What does the school site administrator or designee do when a parent disagrees with an IEP?
When parents disagree with their child's IEP, document the parents' disagreement on p. 10 of the IEP. Parents may disagree with the entire document or they may choose to agree to specific parts and services of the IEP and have them implemented. The school site administrator or designee should then review with the parents the options for seeking a resolution of their IEP dispute. These options are described in Reference Guide 1410.3, October 2006. After the parents select a dispute resolution process make sure that the choice is marked on the IEP by checking the informal meeting box or due process box on p. 10 of the IEP. Then proceed with the relevant steps for the selected process as set forth in Reference Guide 1410.2.
http://faculty.virginia.edu/PullenLab/EDIS5141OnlineModules/Mod6/Mod621.html
What do you do when a parent asks to have their child removed from special education services?
If a comprehensive assessment has not recently been done it is important to first assess the student. After the assessments are completed, convene an IEP team meeting to discuss student's progress, goals and continued need for special education and related services. If the IEP team recommends that the student continue to receive special education and related services, the parents may disagree with the IEP initiate one of the dispute resolution processes. The student will remain in special education until the dispute is resolved. If the IEP team determines that the student no longer needs or is eligible for special education and related services, document the decision on the IEP and if the parent consents to the IEP, exit the student from special education.
Acceptance of a letter requesting termination of special education services is not sufficient to exit a child from special education.
http://faculty.virginia.edu/PullenLab/EDIS5141OnlineModules/Mod6/Mod622.html
What should a school site do when a parent provides a copy of a private assessment or independent educational evaluation (“IEE”)?
Independent Educational Assessments
May my child be tested independently at the district’s expense?
If you disagree with the results of the assessment conducted by the school district, you have the right to ask for and obtain an independent educational assessment for your child from a person qualified to conduct the assessment at public expense.
The parent is entitled to only one independent educational evaluation at public expense each time the public agency conducts an evaluation with which the parent disagrees.
The school district must respond to your request for an independent educational assessment and provide you information about where to obtain an independent educational assessment.
If the school district believes that the district’s assessment is appropriate and disagrees that an independent assessment is necessary, the school district must request a due process hearing to
prove that its assessment was appropriate. If the district prevails, you still have the
right to an independent assessment but not at public expense. The IEP team must consider independent assessments.
District assessment procedures allow in-class observation of students. If the school district observes your child in his or her classroom during an assessment, or if the school district would have been allowed to observe your child, an individual conducting an independent educational assessment must also be allowed to observe your child in the classroom.
If the school district proposes a new school setting for your child and an independent educational assessment is being conducted, the independent assessor must be allowed to first observe the proposed new setting. (20 USC 1415[b][1] and [d][2][A]; 34 CFR 300.502; EC 56329[b] and [c])
What is compensatory education?
Compensatory education offers supplementary programs or services designed to help children at risk of cognitive impairment and low educational achievement succeed.
What does “stay put” mean?
The “stay put” provision is one of the most important legal rights in special education law. “Stay put” rights apply when you dispute a change the school wants to make to your child's IEP. By using this right, your child can remain in his current placement until you and the school resolve the dispute.
What is a “Manifestation Determination”?
A Manifestation Determination is a process, required by the Individuals With Disabilities Education Act (IDEA 2004), which is conducted when considering the exclusion of a student with a disability that constitutes a change of placement.
What are the key elements of FERPA (Family Educational Rights and Privacy Act)?
FERPA (20 U.S.C. § 1232g; 34 CFR Part 99) is a Federal law that protects the privacy of student education records. The law applies to all educational agencies and institutions that receive funds under any program administered by the Department of Education (“Department”). In this guidance, when we refer to “school districts,” “schools,” or “postsecondary institutions” we mean “educational agencies and institutions” subject to FERPA. Private schools at the elementary and secondary school levels generally do not receive funds from the Department and are, therefore, not subject to FERPA.
FERPA gives parents certain rights with respect to their children’s education records at elementary and secondary schools that are subject to FERPA’s requirements. These rights transfer to the student when he or she reaches the age of 18 or attends a postsecondary institution at any age (“eligible student”). Under FERPA, a parent or eligible student must provide a signed and dated written consent before a school discloses personally identifiable information from the student’s education records. 34 CFR § 99.30. See 34 CFR § 99.3 for the definition of “personally identifiable information.” Exceptions to the general consent requirement are set forth in § 99.31 of the FERPA regulations. The term “education records” is defined as those records that are: (1) directly related to a student; and (2) maintained by an educational agency or institution, or by a party acting for the agency or institution. See 34 CFR § 99.3 for the definition 2 of “education records” and a list of records that are not included in the definition. Accordingly, all records, including immunization and other health records, as well as records on services provided to students under the Individuals with Disabilities Education Act (IDEA) and records on services and accommodations provided to students under Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act of 1990, that are directly related to a student and maintained by a school are “education records” under FERPA.
Parental Consent
When is my approval required for assessment?
You have the right to refer your child for special education services. You must give informed, written consent before your child’s first special education assessment can proceed. The parent has at least fifteen (15) days from the receipt of the proposed assessment plan to arrive at a decision. The assessment may begin immediately upon receipt of the consent and must be completed and an IEP developed within sixty (60) days of your consent.
When is my approval required for services?
You must give informed, written consent before your school district can provide your child with special education and related services.
What are the procedures when a parent does not provide consent?
If you do not provide consent for an initial assessment or fail to respond to a request to provide the consent, the school district may pursue the initial assessment by utilizing due process procedures.
If you refuse to consent to the initiation of services, the school district must not provide special education and related services and shall not seek to provide services through due process procedures.
If you consent in writing to the special education and related services for your child but do not consent to all of the components of the IEP, those components of the program to which you have consented must be implemented without delay.
If the school district determines that the proposed special education program component to which you do not consent is necessary to provide a free appropriate public education to your child, a due process hearing must be initiated. If a due process hearing is held, the hearing decision shall be final and binding.
In the case of reevaluations, the school district must document reasonable measures to obtain your consent. If you fail to respond, the school district may proceed with the reevaluation without your consent. (20 USC 1414[a][1][D] and 1414[c]; 34 CFR 300.300; EC 56506[e], 56321[c] and [d], and 56346).
When may I revoke consent?
If at any time subsequent to the initial provision of special education and related services, the parent of a child revokes consent in writing for the continued provision of special education and related services, the public agency:
May not continue to provide special education and related services to the child, but must provide prior written notice in accordance with 34 CFR Section 300.503 before ceasing such services
May not use the procedures in subpart E of Part 300 34 CFR (including the mediation procedures under 34 CFR Section 300.506 or the due process procedures under 34 CFR Sections 300.507 through 300.516) in order to obtain agreement or a ruling that the services may be provided to the child
Will not be considered to be in violation of the requirement to make a free appropriate public education (FAPE) available to the child because of the failure to provide the child with further special education and related services
Is not required to convene an IEP team meeting or develop an IEP under 34 CFR Sections 300.320 and 300.324 for the child for further provision of special education and related services
Please note, in accordance with 34 CFR Section 300.9 (c)(3), that if the parents revoke consent in writing for their child’s receipt of special education services after the child is initially provided special education and related services, the public agency is not required to amend the child’s education records to remove any references to the child’s receipt of special education and related services because of the revocation of consent.
What do I do when the parent will not sign the IEP in disagreement or agreement?
The federal special education law and regulations do not require a child’s parent to sign the IEP. Parents are required to give informed consent before the school can provide services in the initial IEP, but not subsequent IEPs.
- Some state regulations include a provision for parents to sign the IEP to indicate their consent. Many states do not, because the federal law and regulations do not require this.
- Other states require written consent to implement IEPs on a year-to-year basis.
http://www.wrightslaw.com/blog/do-i-have-to-sign-the-iep/
You should: (1) make at least three attempts to obtain the parents' signature following the IEP team meeting, using phone calls, letters, home visits, and/or in person meetings at the school site; (2) document your attempts to obtain a signature in phone call logs, letters, conferences and conversation; (3) maintain a copy of all responses from the parent; (4) continue to implement the last agreed upon and implemented IEP; and (5) contact the Due Process Department to discuss the possibility of filing for due process.
http://faculty.virginia.edu/PullenLab/EDIS5141OnlineModules/Mod6/Mod620.html
What is due process?
Due Process Hearing
Student of liberty or property without due process of law, courts have expanded for more than four decades the Fourteenth Amendment's due process protection of public school students. Understanding this principle is essential to representing children in school discipline proceedings.
When is a due process hearing available?
You have the right to request an impartial due process hearing regarding the identification, assessment, and educational placement of your child or the provision of FAPE. The request for a due process hearing must be filed within two years from the date you knew or should have known about the alleged action that forms the basis of the due process complaint. (20 USC 1415[b][6]; 34 CFR 300.507; EC 56501 and 56505[l])
When there is a due process case pending is the school site required to hold the annual or tri-annual IEP team meeting?
Yes. Follow the required timelines for holding IEP team meetings. It is also recommend that you call the due process specialist that is working on the case before convening the IEP team meeting to discuss possible resolutions of parent concerns.
http://faculty.virginia.edu/PullenLab/EDIS5141OnlineModules/Mod6/Mod620.html
May parents record an IEP team meeting on an audiotape or with a video recording device?
Parents can record an IEP team meeting on audiotape if they give the school notice of their intent to record no later than 24 hours before the IEP team meeting. Likewise, the school may record the IEP team meeting if they give the parents notice at least 24 hours before the meeting. If the school initiates the notice of intent to record (i.e., the parent did not give notice first) and the parent objects to taping the meeting, than the school cannot tape the meeting. (There is no provision in California special education law granting parents or the District the right to videotape an IEP meeting.)
http://faculty.virginia.edu/PullenLab/EDIS5141OnlineModules/Mod6/Mod621.html
What does the school site administrator or designee do when a parent disagrees with an IEP?
When parents disagree with their child's IEP, document the parents' disagreement on p. 10 of the IEP. Parents may disagree with the entire document or they may choose to agree to specific parts and services of the IEP and have them implemented. The school site administrator or designee should then review with the parents the options for seeking a resolution of their IEP dispute. These options are described in Reference Guide 1410.3, October 2006. After the parents select a dispute resolution process make sure that the choice is marked on the IEP by checking the informal meeting box or due process box on p. 10 of the IEP. Then proceed with the relevant steps for the selected process as set forth in Reference Guide 1410.2.
http://faculty.virginia.edu/PullenLab/EDIS5141OnlineModules/Mod6/Mod621.html
What do you do when a parent asks to have their child removed from special education services?
If a comprehensive assessment has not recently been done it is important to first assess the student. After the assessments are completed, convene an IEP team meeting to discuss student's progress, goals and continued need for special education and related services. If the IEP team recommends that the student continue to receive special education and related services, the parents may disagree with the IEP initiate one of the dispute resolution processes. The student will remain in special education until the dispute is resolved. If the IEP team determines that the student no longer needs or is eligible for special education and related services, document the decision on the IEP and if the parent consents to the IEP, exit the student from special education.
Acceptance of a letter requesting termination of special education services is not sufficient to exit a child from special education.
http://faculty.virginia.edu/PullenLab/EDIS5141OnlineModules/Mod6/Mod622.html
What should a school site do when a parent provides a copy of a private assessment or independent educational evaluation (“IEE”)?
Independent Educational Assessments
May my child be tested independently at the district’s expense?
If you disagree with the results of the assessment conducted by the school district, you have the right to ask for and obtain an independent educational assessment for your child from a person qualified to conduct the assessment at public expense.
The parent is entitled to only one independent educational evaluation at public expense each time the public agency conducts an evaluation with which the parent disagrees.
The school district must respond to your request for an independent educational assessment and provide you information about where to obtain an independent educational assessment.
If the school district believes that the district’s assessment is appropriate and disagrees that an independent assessment is necessary, the school district must request a due process hearing to
prove that its assessment was appropriate. If the district prevails, you still have the
right to an independent assessment but not at public expense. The IEP team must consider independent assessments.
District assessment procedures allow in-class observation of students. If the school district observes your child in his or her classroom during an assessment, or if the school district would have been allowed to observe your child, an individual conducting an independent educational assessment must also be allowed to observe your child in the classroom.
If the school district proposes a new school setting for your child and an independent educational assessment is being conducted, the independent assessor must be allowed to first observe the proposed new setting. (20 USC 1415[b][1] and [d][2][A]; 34 CFR 300.502; EC 56329[b] and [c])
What is compensatory education?
Compensatory education offers supplementary programs or services designed to help children at risk of cognitive impairment and low educational achievement succeed.
What does “stay put” mean?
The “stay put” provision is one of the most important legal rights in special education law. “Stay put” rights apply when you dispute a change the school wants to make to your child's IEP. By using this right, your child can remain in his current placement until you and the school resolve the dispute.
What is a “Manifestation Determination”?
A Manifestation Determination is a process, required by the Individuals With Disabilities Education Act (IDEA 2004), which is conducted when considering the exclusion of a student with a disability that constitutes a change of placement.
What are the key elements of FERPA (Family Educational Rights and Privacy Act)?
FERPA (20 U.S.C. § 1232g; 34 CFR Part 99) is a Federal law that protects the privacy of student education records. The law applies to all educational agencies and institutions that receive funds under any program administered by the Department of Education (“Department”). In this guidance, when we refer to “school districts,” “schools,” or “postsecondary institutions” we mean “educational agencies and institutions” subject to FERPA. Private schools at the elementary and secondary school levels generally do not receive funds from the Department and are, therefore, not subject to FERPA.
FERPA gives parents certain rights with respect to their children’s education records at elementary and secondary schools that are subject to FERPA’s requirements. These rights transfer to the student when he or she reaches the age of 18 or attends a postsecondary institution at any age (“eligible student”). Under FERPA, a parent or eligible student must provide a signed and dated written consent before a school discloses personally identifiable information from the student’s education records. 34 CFR § 99.30. See 34 CFR § 99.3 for the definition of “personally identifiable information.” Exceptions to the general consent requirement are set forth in § 99.31 of the FERPA regulations. The term “education records” is defined as those records that are: (1) directly related to a student; and (2) maintained by an educational agency or institution, or by a party acting for the agency or institution. See 34 CFR § 99.3 for the definition 2 of “education records” and a list of records that are not included in the definition. Accordingly, all records, including immunization and other health records, as well as records on services provided to students under the Individuals with Disabilities Education Act (IDEA) and records on services and accommodations provided to students under Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act of 1990, that are directly related to a student and maintained by a school are “education records” under FERPA.