1. Parental Rights of Notice &
Consent During the
Special Education Process
Education Rights Clinic, University of Richmond School of Law
Michael Provencher, Student Associate · Adrienne Volenik, Director
October 28, 2015
2. Roadmap
Practical & Authoritative Guide
1. Terms, Notice & Consent.
2. Identification & Evaluation
• What should I receive notice about?
• What must I consent to?
3. IEP Development
• What should I receive notice about?
• What must I consent to?
Purpose: Empower you to advocate for your child.
Special Education Process:
1. Identification & Referral
2. Evaluation
3. Determination of Eligibility
4. Development of an IEP &
Determination of Services
5. Reevaluation
3. Terms
• Local educational agency (LEA):
• A local school division governed by a local
school board;
• A state-operated program that is funded and
administered by the Commonwealth of
Virginia; or
• The Virginia School for the Deaf and Blind
at Staunton.
--See § 22.1-346 C of the Code of Virginia;
34 CFR 300.28.
• Special education and related services (SEARS):
• Special education: specially designed instruction, at
no cost to the parent(s), to meet the unique needs
of a child with a disability. See § 22.1-213 of the
Code of Virginia; 34 CFR 300.39.
• Related services: transportation and such
developmental, corrective, and other supportive
services as are required to assist a child with a
disability to benefit from special education. See §
22.1-213 of the Code of Virginia; 34 CFR 300.34(a)-
(b).
4. Terms
• Individualized education program (IEP):
• a written statement for a child with a disability that
specifies the individual educational needs of the child
and what special education and related services are
necessary to meet those needs. See 34 CFR 300.22.
• Free appropriate public education (FAPE): special
education and related services that:
• Are provided at public expense;
• Meet the standards of the VBOE;
• Include an appropriate preschool, elementary school,
or secondary school education in Virginia; and
• Are provided in conformity with an IEP.
--See 34 CFR 300.17.
• Least restrictive environment (LRE):
• To the maximum extent appropriate, children with
disabilities are educated with children who are not
disabled. See 34 CFR 300.114 – 300.120.
• Notice: written statements in English or in the
primary language or mode of communication of
the home of the parents. See 34 CFR 300.503(c).
• Agreement: an understanding between the parent
and the LEA about a particular matter. See 34 CFR
300.9.
5. “Prior Written Notice” (PWN)
vs.
Prior, Written Notice
• Prior written notice is a very specific type of notice.
• It must be given to you either (a) before the LEA proposes or (b) after the
LEA refuses to initiate or change:
• The identification, evaluation, or educational placement (including graduation with a
standard or advanced diploma) of the child; or
• The provision of a free appropriate public education (FAPE) for the child.
--See 34 CFR 300.503(a); 8VAC20-81-170.C.1.
6. Contents of PWN
--See 34 CFR 300.502(b); 8VAC20-81-170.C.2.
• A description of the action
proposed/refused by the LEA;
• An explanation of why the LEA
proposed/refused the action;
• A description of any other options the
IEP team considered and the reasons for
the rejection of those options;
• A description of each evaluation
procedure, assessment, record, or report
the LEA used as a basis for its decision;
• A description of any other factors that are
relevant to the LEA’s decision;
• A statement that you have protection
under the procedural safeguards of the
Virginia Regulations and, if the notice is
not an initial referral for evaluation, the
means by which a copy can be obtained;
• Sources for the parent to contact in order
to obtain assistance in understanding the
provisions of the notice requirements.
7. Purposes of PWN
--See also Letter to Boswell, 49 IDELR 196, (OSEP 2007).
• Provide comprehensive documentation
of the proposed/refused actions;
• Ensure the LEA and you are “on the
same page” about your child’s
educational program;
• Provide you with an opportunity to
voice any concerns or suggestions;
• Ensure that informed parental
consent is obtained;
• Provide sufficient information to
ensure that you understand the
rationale behind an LEA’s decisions;
• Assist you in determining (1) the basis
for any disagreement(s) you may
have and (2) whether to seek
resolution through (a) local dispute
resolution processes, (b) a state
complaint, (c) mediation, or (d) a due
process hearing.
8. Consent: What Is It, Really?
Consent has not been given, unless:
• You have been fully informed of all information relevant to the activity;
• You understand and agree, in writing, to the activity; and
• You understand that the granting of consent is voluntary and may be revoked at
any time.
• Revocation is not retroactive, including for the child’s educational records.
• Different from agreement.
--See 8VAC20-81-10; 34 CFR 300.9.
10. What Does It Mean to “Have a Disability”?
• Educational disability vs. medical disability.
• Educational: listed in the statutes governing special education.
• Sometimes are categorical (e.g. emotional disability).
• Geared towards disabilities that impact a child’s ability to benefit from an education.
• Medical: Defined by the medical community.
• More numerous, more narrow.
• Do not always affect education.
11. Child with a disability: A child
who has been identified as having:
• intellectual disability;
• a hearing impairment;
• a speech or language
impairment;
• a visual impairment;
• a serious emotional disability;
• an orthopedic impairment;
• Autism;
• traumatic brain injury;
• an other health impairment;
• a specific learning disability;
• deaf-blindness;
• multiple disabilities
• who, by reason thereof, needs
SEARS.
--See § 22.1-213 of the Code of Virginia;
34 CFR 300.8(a)(1), (2)(i) and ii).
12. Where Do You Start?
• Your child’s school has a Child Find obligation to locate, identify, and
evaluate all children who need SEARS. See 8VAC20-81-50.
• If you suspect your child has a disability, you have the ability to begin the
process of getting your child (1) evaluated and, if necessary, (2) provided
with the appropriate SEARS.
13. Child Find Obligation Includes Children Who Are:
See 8VAC20-81-50.A.
• Enrolled in public (including charter),
private, or religious elementary or
secondary schools;
• Highly mobile, such as migrant and
homeless children;
• Receiving homebound or home-based
instruction from the school;
• Receiving home tutoring or home
instruction;
• Advancing from grade to grade;
• Under 18 and incarcerated in a
regional or local jail for 10 or more
days or under house arrest;
• Suspended or expelled;
• In foster care; OR
• Placed in a private residential
placement by a Comprehensive
Services Act (CSA) team.
14. School Screenings & Referrals
• The school must conduct screenings to determine if a referral for a SEARS
evaluation is necessary. Must screen in the areas of:
• Speech, voice, language, fine motor skills, & gross motor skills. See 8VAC20-81-50.
• Vision & hearing (grades 3, 7 & 10). See 8VAC20-250-10.
• Scoliosis (grades 5 – 10). See 8VAC20-690-20.
• If the results suggest a SEARS referral is necessary, then the child is referred
to the special education administrator. See 8VAC20-81-50.C.1.f.
15. Notice re: Screening & Referrals
See 8VAC20-81-50.C.1.f, 20-81-50.C.2.
• You will receive general notice of any screening taking place.
• You will also be notified if their child fails a screening.
• Failure does not always mean that there is a suspected disability.
• However, if the results do suggest that there’s a suspected disability, then:
• The child will be referred to the special education administrator/designee;
• You will be notified; and
• The school will maintain the screening information in a confidential manner.
16. Parental Referral
• You—and, in fact, anyone—can request an evaluation of a child at any time
by either (a) writing or (b) speaking to the special education administrator.
• While this request does not have to be in writing, as a practical matter, it should be.
• It documents the referral; and
• It starts the timeline that the school has to follow for evaluating your child and developing
and implementing an IEP, if necessary.
17. • When a request for an evaluation is received, the special education
administrator must:
• Record the date, reason for referral, and name of the person/agency making the
referral;
• Ensure confidentiality; and
• Provide you with prior written notice and a procedural safeguards notice.
• Then, within 3 business days, he/she must decide whether to (1) evaluate
your child, (2) request a review by the school-based team, or (3) deny the
request.
• If (2), then the team must decide within 10 business days whether to evaluate your
child.
18. • If the decision is to evaluate, then the special education administrator must:
• Give you all notices of the evaluation process;
• Give you a copy of the procedural safeguards;
• Inform you of the procedures for the evaluation process;
• Involve you in deciding what evaluation information is needed;
• Request any evaluation information you may have; and
• Obtain your written consent to conduct an evaluation.
19. • If the decision is to not evaluate, then you must be given:
• A prior written notice of the decision;
• A full explanation of the reasons for the decision; and
• An explanation of procedural safeguards, including:
• Your right to challenge the decision through (a) mediation or (b) a due process hearing.
21. Notice re: IEP Meetings
• Prior notice; but can be written, by phone, or in person; and
• Give the purpose, date, time, and location, as well as a list of those who plan to attend.
• Must be a mutually agreed upon date/time/location.
• Schools must also notify you that both the you and the school may invite any additional individual
who has knowledge or special expertise about the child.
• Eligibility determinations, IEP and transition IEP meetings, and manifestation
determinations all should induce this type of notice.
• Informal or unscheduled conversations between school personnel about such topics as teaching
methods, lesson plans, preparation for a future meeting, or coordination of services are not considered
"meetings," and, therefore, notice is not required.
22. IEP Team
--See 8VAC20-81-110; 34 CFR 300.23.
• You (the parents);
• Your child, if appropriate.
• At least one of your child’s general education
teachers (if your child is or may be
participating in general education classes);
• At least one special education teacher or
related service provider (this person must be
serving your child if your child is
participating in special education);
• A person who can interpret what the test
results mean for your child;
• A person from the school who is qualified to
provide or supervise the provision of a
special education and who knows about the
general education curriculum and available
resources;
• Other people who are invited at the parents’
or school’s discretion;
• You must also consent to sharing any
educational information about your child
with a person who is not employed by the
school before they can participate in any
meetings.
23. Recording during IEP Meetings
--See 8VAC20-81-170.J; see also 8VAC20-81-80, 20-81-110.F, 20-81-160.D.
• Audio recordings are allowed at meetings to (1) determine your child’s eligibility, (2) to develop
review, or revise your child’s IEP, and (3) to review discipline matters (including manifestation
determinations).
• You must inform the school before the meeting of your intent to record.
• If not, you must provide the school with a copy afterwards, to be included in your child’s school record.
• You must provide your own recording device and other supplies.
• Video recording may be permitted, barred, or limited by the school.
• If permitted, the video must become part of your child’s record.
• If barred or limited, the school’s policy must be uniformly applied.
• Also, the school must allow for exceptions, if necessary, for you to understand the IEP or to exercise your rights.
24. Consenting to the IEP
• Implementation of a new IEP requires your written consent.
• You may choose to give only a partial consent, thus only implanting those parts of the
IEP to which you consented. See 34 CFR § 300.300(d)(3); 8VAC20-81-170.E.1.d.
• If you do not consent to a proposed new IEP:
• The proposed new IEP does not take effect; and
• The old IEP is still in effect; it does not expire.
• You also must provide written consent in order to remove an existing
service.
25. What Should Be Included in the IEP?
• Present Level of Academic Achievement and Functional Performance
(PLOP).
• Goals & Objectives.
• Services & Accommodations.
• Least restrictive environment (LRE) analysis.
