What Parents Need to Know when Disability Impacts Behavior and Discipline at School

A Brief Overview

  • Students with disabilities are disciplined twice as often as non-disabled peers. Washington is taking actions to remedy the inequities. Read on for examples of the new state rules and where to go for more information.  
  • Schools are required to provide education and support before resorting to discipline. This article includes resources and information to help families ensure that students are receiving the best-practice services they need and that disciplinary actions are non-discriminatory.
  • Chris Reykdal, Superintendent of Public Instruction, says, “We should do what we can to make suspensions and expulsions the last option while ensuring our schools are safe. The numbers are clear: This is an equity issue, and some groups of students are impacted much more than others.”
  • Concern is nationwide. The Center for Civil Rights Remedies in 2018 issued a state-by-state estimate of lost instruction due to discipline for students with disabilities: “Schools once routinely denied students with disabilities access to public education. Federal law makes it clear that such denial is unlawful, yet some schools may still be meting out discipline in a manner that has the same effect.”
  • If the school calls to send a child home, parents can ask whether the student is being suspended. If the school is not taking formal disciplinary action, parents are not required to take a child home. If the action is a formal suspension, specific rules apply. Read on for more detail.

Full Article

Some disabilities make it difficult for students to communicate distress or manage their behavior in ways that schools expect or require from typically developing students. Data clearly show that students with disabilities are disciplined more frequently than their non-disabled peers. By learning about state and federal guidelines, parents can advocate to ensure that students with disabilities are receiving the services they need to successfully access school and that disciplinary actions are non-discriminatory.

Parents can empower themselves by learning the federal framework for special education protections. Students who receive services or accommodations through the Individuals with Disabilities Education Act (IDEA) or through Section 504 of the Rehabilitation Act of 1973 are guaranteed access to a Free Appropriate Public Education (FAPE). Disciplinary actions that deny access to FAPE may be discriminatory. Schools follow specific procedures when they discipline students with special needs to avoid violations of FAPE.

For example, a student with an Individualized Education Program (IEP) cannot be excluded from school because of behavior that results from a disability: Read on for further information about Manifestation Determination Hearings. Also, schools are required to provide education and support before resorting to discipline for children who struggle with behavior because of their impairments.

Unexpected behavior may indicate that a student has a disability and needs services

Federal laws also can protect students who haven’t yet been identified as having disabilities. School districts have a duty to evaluate students to determine eligibility for special education if they exhibit behavior that may indicate a disability. Under IDEA, this responsibility is called the Child Find mandate. Suspension, expulsion, isolation or restraint due to unexpected behavior can initiate an evaluation process, and students who qualify for services can retroactively be afforded protections from the IDEA or Section 504.

The Office for Civil Rights within the United States Department of Education in December 2016 issued a two-page Fact Sheet on Restraint and Seclusion that succinctly describes some federal guidelines related to disciplinary action and disability:

“A student’s behavioral challenges, such as those that lead to an emergency situation in which a school believes restraint or seclusion is a justified response could be a sign that the student actually has a disability and needs special education or related aids and services in order to receive FAPE.”

Washington State has new rules for schools

The Office of Superintendent of Public Instruction (OSPI), which oversees all Washington school districts, in July 2018 adopted new state guidelines related to discipline. Priority is placed on positive interventions to avoid disciplinary actions that disrupt learning. A four-page Parent Guide is available from OSPI.

Also available is a Menu of Best Practices and Strategies. Restorative justice, behavioral health support and social skills instruction are on the menu for a more proactive, student-centered approach. The state includes requirements for parent notification and family engagement in the new rules, which are being implemented over two years, 2018-2020.

“The state discipline rules were created four decades ago,” says Chris Reykdal, Superintendent of Public Instruction. “Our students and schools are vastly different today. The new rules provide more clarity and they allow for student, family, and community input in developing local discipline policies.

“While some students do occasionally need discipline, our approach must be different. We should do what we can to make suspensions and expulsions the last option while ensuring our schools are safe. The numbers are clear: This is an equity issue, and some groups of students are impacted much more than others.”

Students with disabilities and students of color are disciplined more frequently

OSPI reports that 3.5 percent of all students were suspended or expelled during the 2016–17 school year. Among students receiving special education services, the percentage was 7.1 percent. For African-American students, the percentage was 7.4 percent. For Latino students, the rate was 4.1 percent. Students of color who also have disabilities are impacted at the highest rates. Seattle’s King 5 News on Oct. 25, 2018, broadcast a news report about the disparities in discipline for students with disabilities.

In 2016, the Washington Legislature passed House Bill 1541 to help close opportunity gaps in learning. OSPI spent two years researching the statutes and guidance. In rewriting the rules that were adopted in July 2018, the agency gathered feedback from families, students, educators, and community members through three public comment periods and eight public hearings.

New state policies are designed to discourage disciplinary actions that take a child out of the learning environment and encourage family engagement and positive behavior supports and other evidence-based practices. OSPI’s one-page introductory handout for parents outlines the new guidance.

According to OSPI, the new rules aim to make policies fair statewide. They require districts to include parents and guardians when updating discipline policies. The overarching goal is to keep children in school and learning and avoid severe or exclusionary disciplinary measures. 

In general, Washington’s new state rules:

Encourage schools to minimize the use of suspensions and expulsions and focus instead on evidence-based, best-practice educational strategies

Prohibit schools from excluding students from school for absences or tardiness

Further limit use of exclusionary discipline (suspension, expulsion) for behaviors that do not present a safety threat

Prohibit the use of expulsion for students in kindergarten through grade four (children in that age range already cannot be excluded from their classroom placements for more than 10 cumulative days per academic term)

Clarify expectations for how school districts must provide students access to educational services during a suspension or expulsion

When are students entitled to a Manifestation Determination Hearing?

In Washington, a student with an identified disability may be suspended for a short period of time if there are safety concerns or if other interventions are failing to control behaviors that cause a significant disruption. However, if a suspension or an accumulation of in- or out-of-school suspensions within a semester or trimester totals 10 days, the school holds a Manifestation Determination Hearing to determine whether the behavior resulted—or “manifested”—from the disability. This hearing is a distinct process for students with IEPS or Section 504 accommodation plans and is separate from any other general education disciplinary hearings or procedures. Removal for more than 10 days is considered a change in placement and could violate the school district’s responsibility to provide the special education student with FAPE.

If a student’s behavior manifested from disability, the school and parents meet to discuss program or placement changes likely to help. A Manifestation Determination hearing can also initiate an evaluation process for students not yet identified as needing special education services or disability-related accommodations. Regardless of whether the student has qualified for services, the hearing can trigger a Functional Behavior Assessment (FBA), which can be done for students with or without IEPs or Section 504 plans. Keep reading for more detail about the FBA and how it’s used to generate positive behavior interventions and supports.

The IDEA guarantees parent participation in the IEP process, which includes disciplinary hearings and any other formal meetings in which a student’s educational program or placement is reviewed or amended.  

If the conduct is determined to be unrelated to a disability, then school personnel may use general education discipline procedures. In that case, the school must still provide any special education services that the student has already been found to need. The IEP team decides the appropriate alternative setting and special education services to meet the student’s needs during the suspension.

The school district is required to provide educational services during a suspension

State law requires that all suspended and expelled students have an opportunity to receive educational services (RCW 28A.600.015). OSPI issued a bulletin September 8, 2016, that states, “When educational services are provided in an alternative setting, the alternative setting should be comparable, equitable and appropriate to the regular education services a student would have received without the exclusionary discipline.” The bulletin mentions alternative schools, 1:1 tutoring and online learning as examples of alternative settings.

Note: If a student’s conduct involves Special Circumstances – weapons, illegal drugs, or serious bodily injury—a student may be removed for up to 45 school days regardless of whether the student’s behavior was a manifestation of disability. However, a manifestation determination hearing still is required within the first 10 days of removal from school and educational services still are provided.

The American Civil Liberties Union of Washington provides a free, downloadable Parents’ Guide to Public School Discipline in Washington. Part III includes information about laws and procedures that are specific to students in special education. The ACLU guidebook encourages parents to gather as much information as possible when a student is disciplined:

“It is important to fully understand the type of proposed discipline, the underlying behavior, how the behavior relates to the student’s disability, and what additional supports may be available in order to fully advocate for your student.”

Do you need to pick up your student every time the school calls?

The ACLU booklet commits a page to addressing the question, “Do you need to pick up your student every time the school calls?” A parent can ask whether the student is being suspended.  “If your student has not been officially suspended,” ACLU advises, “The school cannot force you to pick up the student.

“If you choose to pick up your student when he or she has not been suspended, the school may not record the removal from class and may not trigger additional protections (such as Manifestation Determination Hearings) that apply when students with disabilities are removed from school for 10 days or more.”

The ACLU points out that without formal paperwork that describes a disciplinary action and its specific start and end times, a school may not be accountable to specific rules that govern special education: “Any time your student misses class time because of a behavior problem, it may be considered a discipline and should be considered as counting towards the 10 days that would be a ‘change of placement’ under the law and trigger additional protections. If your student is having behavioral problems that do not lead to suspension, you may suggest that the IEP team should consider holding an IEP meeting to reevaluate your student’s behavior supports, or that the 504 team meet to consider changes to the accommodation plan.”

The ACLU guidebook includes a list of supports parents can ask for: “The law requires behavior supports to be based on evidence, and so you can ask for additional expert evaluation to determine whether the behavior supports offered to your student are appropriate.”

Schools teach skills for expected behavior

Specialized instruction designed to meet a student’s unique needs can include education in social communication, self-regulation, choice-making and other areas of Social Emotional Learning (SEL) that may impact behavior. These strategies are well recognized as best-practice for keeping children engaged in school and avoiding problems that might lead to discipline.

In addition, schools can conduct a Functional Behavior Assessment (FBA) to develop a Behavior Intervention Plan (BIP). A BIP is developed to proactively help a child learn expected behaviors and shift away from circumstances that might lead to escalations. The BIP identifies target behaviors that are disrupting education and determines “antecedents,” which means conditions or events that occur before the targeted behavior. A BIP is intended to support “replacement” behavior so a student can develop skills that prevent escalations and keep the student in school and learning.  

A BIP can be a stand-alone plan or can work with an IEP or a Section 504 accommodations plan. OSPI offers guidance to schools and families about FBA/BIP process. Another place to find valuable information is through the Parent Center Hub, a website operated by the Center for Parent Information and Resources (CPIR).

School discipline is a national topic of concern

On August 1, 2016, the U.S. Department of Education published a Dear Colleague Letter for public-school staff: “Recent data on short-term disciplinary removals from the current placement strongly suggest that many children with disabilities may not be receiving appropriate behavioral interventions and supports, and other strategies, in their IEPs.” The letter included data that 10 percent of all children with disabilities, ages 3-21, were subject to a disciplinary removal from school. Children of color with disabilities faced an even higher rate.

The letter encourages all schools to develop robust programs for Positive Behavior Interventions and Supports (PBIS) and provides specific guidance for IEP teams. “In the case of a child whose behavior impedes the child’s learning or that of others, the IEP Team must consider – and, when necessary to provide FAPE, include in the IEP – the use of positive behavioral interventions and supports, and other strategies, to address that behavior.”

The federal guidance includes statements about staff development: “School personnel may need training, coaching, and tools to appropriately address the behavioral needs of a particular child. Supports for school personnel may be designed, as appropriate, to better implement effective instructional and behavior management strategies and specific behavioral interventions that are included in the child’s IEP.”

In 2014, the federal government issued guidance to discourage disciplinary actions that discriminate against students with disabilities, particularly students of color. A variety of federal sources have highlighted disparities, and the Center for Civil Rights Remedies and the Charles Hamilton Houston Institute for Race and Justice in April 2018 issued the first state-by-state estimate of lost instruction due to discipline for students with disabilities. The data include a finding that children of color who also have disabilities lost 77 more days of instruction because of disciplinary actions than peers who are Caucasian.

“These data on lost instruction are rarely reported,” the report concludes in its executive summary. “Although many could guess that the racially disparate impact is large, these dramatic disparities were derived from reliable publicly reported federal data, and they should be cause for alarm. Students with disabilities receive much more than classroom instruction when they are in school. For example, they often receive related counseling services, occupational and physical therapy as well as additional small group or one-on-one tutoring. Therefore, they lose much more when they are removed from school.”

Inappropriate discipline may be a denial of FAPE

The full report from the Center for Civil Rights Remedies includes this statement in its introduction: “Schools once routinely denied students with disabilities access to public education. Federal law makes it clear that such denial is unlawful, yet some schools may still be meting out discipline in a manner that has the same effect. To suspend a student because of behavior that is a result of their disability is the equivalent of denying that student access to education.”

However, in December 2018, a federal school safety commission recommended that the U.S. Department of Education rescind the 2014 guidance intended to prevent discriminatory practices. OSPI responded by stating that Washington State’s policies and updated guidance would be unaffected. “Rescinding the 2014 guidelines will have no effect on Washington’s laws and rules related to student discipline…and will have no effect on OSPI’s enforcement of civil rights laws that prohibit discrimination in the administration of student discipline,” OSPI stated.

Washington discipline laws include statutes in the Revised Code of Washington (RCW) and rules in the Washington Administrative Code (WAC). Washington State student discipline laws apply to all K–12 students. Students with disabilities are subject to both general education and special education rules and statutes. For the most up-to-date information about general education discipline procedures and the rules changes underway, visit OSPI’s Student Discipline page. For more information about special education discipline procedures, visit OSPI’s Special Education Behavior and Discipline page.

Guidance related to isolation and restraint

The state has specific rules related to the use of isolation and restraint, which are implemented only when a student’s behavior poses an imminent likelihood of serious harm and are discontinued when the likelihood of serious harm has passed. Isolation and restraint are not used as a form of standard discipline or aversive intervention.

When severe disciplinary actions become frequent, schools might ask the parent/guardian to sign an Emergency Response Protocol (ERP) for an individual student. Families are not required to sign this. The ERP specifically explains what the school’s policies are related to isolation and restraint and what the training requirements are for staff who are authorized to provide isolation and restraint. Parents can request a copy of the district’s general education policies on this topic. The ERP can include a statement about how parents are contacted if the school uses isolation or restraint. Schools are required to provide a report to the parent/guardian any time formal disciplinary actions are taken and any time that their child experiences isolation or restraint.

Where to find the state laws

For a link to the complete Washington Administrative Codes (WACs) that describe the Final Rules for the 2018-19 and 2019-20 school years, visit OSPI’s website and click on links for the downloadable PDF documents: www.k12.wa.us/studentdiscipline

Social Emotional Learning, Part 2: Trauma-Informed Instruction

A Brief Overview

  • Washington State has made trauma-informed instruction a priority. The Office of Superintendent of Public Instruction (OSPI) has a new online training program to equip school staff with Social Emotional Learning (SEL) techniques and tools.
  • Adverse Childhood Experiences (ACEs) make children much more likely to struggle with troubling behaviors and school suspensions. Understanding trauma and addressing it with your child’s school can help improve outcomes.
  • A trauma-informed teacher establishes specific methods for helping children understand their emotions and identify what’s happening and what to do next.
  • Data indicate that restorative practices work. The 2016 Mental Health Report from the Child Mind Institute shows that proactively teaching “restorative discipline” reduced school suspensions by nearly 50 percent.
  • PAVE published Part 1 of this article series last fall, The Importance of Compassionate-Schools.

Full Article

 “Being at school in a traumatized state is like playing chess in a hurricane.” This statement, from Mount Vernon high-school teacher Kenneth Fox, provides a vivid reminder that learning in school isn’t just about academics. Effective social interactions and emotional regulation are critical life skills and are part of formal learning in today’s schools.  

Fox’s quote is highlighted in a free guidebook offered by Washington’s Office of Superintendent of Public Instruction (OSPI). “The Heart of Learning and Teaching: Compassion, Resiliency, and Academic Success,” is part of an emerging effort to help children who struggle to thrive in difficult lives. Also part of that effort is a five-part online training module that OSPI added to its website last September to help school staff support children with behavioral health challenges. The Social-Emotional Learning Module is free and accessible to anyone wanting new tools for helping children manage themselves and their emotions more skillfully. OSPI’s introductory page to the training includes the following statement:

“When we think of educating the whole child, social and emotional development must be considered as a part of overall instruction. SEL is broadly understood as a process through which individuals build awareness and skills in managing emotions, setting goals, establishing relationships, and making responsible decisions that support success in school and in life.”

OSPI has been developing this program since the 2015 Washington State Legislature directed OSPI to convene an SEL Benchmarks workgroup. The full report, along with notes from previous meetings are available on the SEL Benchmarks Workgroup Website. Last year’s legislature followed up by directing OSPI to create the training modules, and work is ongoing to develop a model of best practices and report on progress by June 30, 2019.

The Washington State Board of Education in its Legislative Priorities for the 2018 Legislative Session included a statement that “urges the Legislature to invest in social-emotional and trauma-informed educational approaches.”

The movement toward Social Emotional Learning (SEL) has grown from knowledge that trauma profoundly impacts educational outcomes. In the late 1990s, the Centers for Disease Control and Prevention released its first report about Adverse Childhood Experiences (ACEs). Dr. Vincent Felitti, then the CDC’s chief of preventive medicine, boldly proclaimed childhood trauma a national health crisis. The report led to development of an ACEs survey, which scores a person’s likelihood of suffering lifelong physical and mental health impairments resulting from trauma. An ACEs score of 4, the study found, makes a child 32 times more likely to have behavior problems at school.

The data inspired researchers and educators to seek new ways to help children cope so they can manage themselves at school—and in life. A variety of training programs have become available, and a new conversation has begun about how schools can help children build resiliency.

Generally, a trauma-informed teacher or school establishes specific instructional techniques to help children understand their emotions and identify what’s happening and what to do next. Schoolwide programs are becoming more common, and special education students may have specific Social Emotional Learning (SEL) goals within the Individualized Education Program (IEP). For children who need extra support in this area, a Functional Behavior Assessment (FBA) can provide data for generating a Behavior Intervention Plan (BIP). The Parent Center Hub provides detailed information on this process.

A trauma-informed instructor might use a specific tool to help the child label an episode of dysregulation, such as the Zones of Regulation, which encourage self-observation and emotional awareness. Another good example is the “brain-hand model” described by Dr. Dan Siegel, a well-known neurobiologist and author who has helped lead a movement toward science-informed practices. The basic premise is this:

  1. Hold up your hand. The base of your open palm represents the brain stem, where basic functions like digestion and breathing are regulated.
  2. Cross your thumb over your palm. This represents the central brain (amygdala), where emotions are processed.
  3. Fold your four fingers across your thumb. They represent your frontal cortex, where problem-solving and learning happen.
  4. Imagine something emotional triggers you, and lift your fingers. When you “flip your lid,” emotions rule. Problem behaviors become probable as you try to cope with fight/flight instincts. You won’t make much sense until regulation is restored—and your fingers can fold over again.

One agency that teaches this self-awareness tool is Sound Discipline, a non-profit based in Seattle that offers a training called “Building Resiliency: Reaching Children Through Connection and Care.” Begun by pediatrician Jody McVittie, Sound Discipline has provided training for dozens of Washington schools and hopes to reach 100 schools statewide by 2021. A principal goal is to train professionals and parents to collaborate with students in problem solving. Helping a student repair damage from a behavior incident, for example, teaches resilience and develops mental agility. “Children don’t want to be inappropriate,” McVittie emphasizes. “They are doing the best they can in the moment.”

Like similar programs, Sound Discipline describes “problem” behaviors as coping mechanisms. Acting out is a child’s attempt to manage stress or confusing emotions, and stern punishments can re-ignite the trauma, making the behavior worse instead of better.

The data clearly indicate that educational outcomes improve dramatically when students can manage themselves socially and emotionally. A critical measure of the impact is a reduction in suspensions and expulsions. The 2016 Children’s Mental Health Report from the Child Mind Institute shows that proactively teaching “restorative discipline” reduced school suspensions by nearly 50 percent.

The report states: “Restorative Discipline/Justice includes strategies to both prevent children from breaking the rules and intervene after an infraction has occurred. Some elements are focused on reducing the likelihood of student rule breaking (proactive circles where students and teachers talk about their feelings and expectations) and others on intervening afterwards (e.g., restorative conferences where the parties talk about what happened). In all cases the focus is on avoiding punishment for the sake of punishment.”

Parents can play an important role in furthering trauma-informed approaches by learning about and healing their own trauma experiences, applying trauma-informed principles in their parenting and by learning how to talk about these approaches with schools. Here are a few ideas:

  • Ask teachers and district officials to describe how social and emotional learning are integrated into general and individualized programming.
  • Ask whether the school is using restorative methods to help children learn from their mistakes.
  • Ask about people at the school who regularly check in and show caring respect toward your child. Dr. Bruce Perry, whose research supports trauma-informed initiatives, says, “Relationships are the agents of change and the most powerful therapy is human love.”

Here are a few resources for more information about adverse childhood experiences and trauma-informed practices:

CDC ACE Report
Resilience: The Biology of Stress and the Science of Hope, a film by KPJR
Sound Discipline
Dan Siegel’s Hand Model of the Brain
Edutopia.org/Creating More Compassionate Classrooms—Joshua Block
2016 Children’s Mental Health Report
The Heart of Learning and Teaching: Compassionate Schools
Aces Too High
The National Child Traumatic Stress Network Learning Center
The National Institute for Trauma and Loss in Children
Why Schools Need to be Trauma Informed
OSPI k12.wa.us/Student Support/SEL

 

 

 

 

Social Emotional Learning, Part 1: The Importance of Compassionate Schools

A Brief Overview:

OSPI has introduced a five-segment training program for school staff focused on Social-Emotional Learning. This program is designed to help school staff understand their roles in promoting students’ self-awareness, self-management, social-awareness, relationships, and responsible decision-making.

This program encourages staff to use trouble moments as opportunities to understand unmet needs – meeting these moments with compassion helps children learn better in all areas.

There are many benefits to students having high social-emotional scores – stay in school, less in-school suspension, and better math & reading scores.

You can bring this information into meetings with school staff and use it to help design creative behavior supports within your child’s Individualized Education Program (IEP).

Full Article:

Educators and communities are starting a new conversation about what schools need to teach when children are stressed out and struggling. Self-awareness, emotional management, goal-setting, responsible decision making and relationship skills are taking their place alongside academic subjects.

These life skills are part of a growing area of education called Social Emotional Learning (SEL). In September, Washington’s Office of Superintendent for Public Instruction (OSPI) introduces a five-segment training program for school staff. The Social-Emotional Learning Module was authorized by Senate Bill 6620 during the 2016 legislative session: “In order to foster a school climate that promotes safety and security, school district staff should receive proper training in developing students’ social and emotional skills,” the bill states.

The modules are intended for all school staff—from teachers and principals to bus drivers and lunch servers—to understand their roles in promoting students’ self-awareness, self-management, social-awareness, relationships, and responsible decision-making.

The new training module is an outgrowth of OSPI’s Compassionate Schools Initiative, which provides training, guidance, referral, and technical assistance to schools wishing to adopt a Compassionate Schools approach. Available online are a power point presentation and a free e-book called “The Heart of Learning and Teaching: Compassion, Resiliency, and Academic Success” (link below). The handbook, first published in 2009, was developed through a collaboration with university and public educators working with state officials in response to a growing body of knowledge about Adverse Childhood Experiences (ACEs) and the effects of childhood trauma on learning.

Ron Hertel, Program Supervisor for Social and Emotional Learning/Compassionate Schools at OSPI, says that some schools are doing a remarkable job of providing new trainings and resources but that other schools are still in the early stages of SEL programming. He is hopeful that the new training modules will further those efforts. “Social emotional learning is the foundation for both life and learning, whether or not a student is impacted by trauma,” Hertel says. “By providing specific guidance on the relevance of SEL skills as well as exploring implementation strategies, we hope to provide a firm platform schools can use to support social emotional development for all students.”

Social Emotional Learning is a nationwide movement. The National Research Council issued this statement in 2012: “There is broad agreement that today’s schools must offer more than academic instruction to prepare students for life and work.”

An important component of SEL is the recognition that problem behaviors offer critical clues about a child’s unmet needs or undeveloped social and emotional skills. These behaviors can be especially pronounced in children with developmental delays, emotional disturbances or other disabilities that qualify them for special education.

By using troubling moments as teachable moments and prioritizing compassion over punishment, many schools are finding that children learn better in all areas—including academics. New evidence clearly shows that when children learn to problem-solve their way out of trouble with socially competent strategies and self-regulation techniques, classrooms operate more effectively and everybody benefits.

For its 2016 Mental Health Report, the Child Mind Institute analyzed data from more than 200 studies. At schools with specific social emotional learning programs, students were 22 percent more likely to demonstrate social emotional competence. In those schools, measures of emotional distress were lower and grades were higher.

According to the Collaborative for Academic, Social and Emotional Learning (CASEL), graduation rates get better, too. According to CASEL, students with higher social emotional scores:

Are more than twice as likely to stay in school.

Have fewer in-school suspensions (3 percent versus 8.8 percent)

Get higher marks in math and reading assessments

Without these skills, children are struggling. Included in the Child Mind Institute’s report are a variety of statistical data that show students in special education are at the greatest risk. For example, states with above-average rates of children with attention deficit and specific learning disabilities report school suspension rates that are twice the national average.

“All children face rising rates of suspension, especially minority children,” the report states. “But the ‘zero tolerance’ focus on mandatory punishment for certain behaviors targets children with impulse or emotion regulation control problems often caused by mental health disorders.”

These same challenges are linked to higher drop-out rates and eventually to higher rates of incarceration and disengagement from work and community. The dropout rate for all students is seven percent, while the rate for students served under the Individuals with Disabilities Education Act (IDEA) is more than 20 percent. For students whose qualifying disability is Emotional Disturbance, the rate climbs to almost 40 percent. That number is especially concerning because data indicate that high-school dropouts are 63 times more likely to go to jail than college graduates.

Even so, childhood behaviors don’t have to predict a lifetime of distress and disengagement. One study reviewed in the Child Mind Institute’s report shows that 95 percent of out-of-school suspensions are for nonviolent, minor disruptions, such as tardiness or disrespect. Clearly, efforts to teach social skills and emotional regulation can have a critical impact.

Families are a valuable part of the conversation as school staff learn and apply these new approaches. You can bring this information into meetings with school staff and use it to help design creative behavior supports within your child’s Individualized Education Program (IEP). OSPI’s Heart of Learning guidebook offers some key definitions to bring to the table:

Compassion: a feeling of deep empathy and respect and a strong desire to actively help someone stricken by misfortune.

Trauma: a state of distress caused by the inability to respond in a healthy way to acute or chronic stress.

Resiliency: the ability to withstand and rebound from adversity.

Compassionate School: a place where staff and students are aware of the challenges that others face and respond with supports that remove barriers to learning.

School-Community Partnership: a relationship that supports a shared goal of providing resources through responsibility and collaboration.

Other principles to research and consider include: restorative discipline, positive behavior supports, collaborative repair, misbehavior versus stress behavior, emotional vocabulary, replacement skills, reframing and social competence.

The Technical Assistance Center on Social Emotional Intervention for Young Children (TACSEI) offers tips about teaching “skill fluency” when problem behaviors highlight a child’s untrained attempt to cope or problem-solve: “When children do not know how to identify emotions, handle disappointment or anger, or develop healthy relationships, a teacher’s best response is to teach.”

In its conclusions, OSPI’s Heart of Learning e-book includes this statement: “The education reform movement in the United States has made great strides in transforming curricula and other aspects of the educational system. Social, emotional and behavioral health is the necessary next step for building better schools to nurture healthy brains and happy children.”

Stay tuned for more articles from PAVE. For more information, these links will connect you to a variety of resources:

2016 Children’s Mental Health Report
TACSEI: Challenging Behavior
The Heart of Learning and Teaching: Compassionate Schools
CASEL
The National Child Traumatic Stress Network Learning Center
Beyond Consequences
Building Social Skills in the Early Years and Beyond 

 

Evaluation

What is an evaluation?

An evaluation is the process used to determine if a student is eligible for special education services and in what areas services need to be provided.  Both the federal regulations implementing IDEA 2004 and the state’s Washington Administrative Code 392-172A (WAC), define how evaluations are conducted by the school district and who is involved in the process. A parent of the child, a state or local education agency, or other State agency can request the evaluation of a student, if there is concern about how the student learns.  The concern could be about academic areas – reading, math or written language. Other areas that can also be evaluated are health, vision, hearing, social and emotional status, general intelligence (I.Q.), communication and motor abilities. The school district must evaluate the student in all areas of suspected disability.

How can I refer my child for an evaluation?

Put the request for an evaluation in writing and send it by certified mail to the district or hand carry it and have your copy signed and dated by the district representative. This will give you a receipt showing who signed and the date it was received. It provides documentation for the starting date of the timelines the district must follow for the evaluation. Remember, asking for and giving written consent for an evaluation does not mean you are giving consent for your student to be placed in a special education program.  It means you and the team need more information to make good decisions about the student’s program, and special education may be part of it.

After the referral is made, then what?

The district must:

  • document the referral;
  • notify the parent(s) that the student has been referred, and that the team, including the parents, will decide whether or not to evaluate the student;
  • examine existing school, medical, and other records the parent(s) or other agencies might have;
  • provide “prior written notice” to the parent(s) regarding their decision to evaluate within 25 school days after receipt of the referral
  • complete the evaluation within an additional 35 school days.

How often can my child be re-evaluated?

A re-evaluation can occur at any of the following times:

  • The district decides that because of academic improvement the student warrants a re-evaluation.
  • The student’s parent(s) or teacher requests it.
  • At least every three years unless the parent(s) and district agree it is not necessary.
  • Must the district notify me and get my written consent before re-evaluations can occur?
  • Yes. The district must obtain the parent’s written consent before re-evaluating the student.
  • What exactly is the procedure used to evaluate my child?

The law is very clear about evaluating children with suspected disabilities. The district must:

  • use a variety of assessment tools to gather information about the functional, developmental and academic areas of a student’s school performance, including information provided by the parent;
  • draw upon information from a variety of sources, including aptitude and achievement tests, parent input, teacher recommendations, the student’s physical condition, social and cultural background and adaptive behavior;
  • use a variety of tests rather than one single measure or test to determine a student’s eligibility for special education services;
  • use tests that are selected and administered in ways that are not culturally or racially discriminatory;
  • administer the tests in the student’s native language or other form most likely to ensure accurate information about academic, functional and behavior needs of the child;
  • use trained and knowledgeable personnel to administer the tests;
  • insure the tests are valid and reliable for what they are measuring; and
  • evaluate in all areas of suspected disability.

Will the district pay for a medical evaluation?

If necessary, as part of the assessment, the district may obtain a medical statement or assessment to see if there may be other factors affecting the child’s educational performance.

Will the district consider an outside evaluation that we have paid for?

Yes. When the team is reviewing existing records the information you provide must be considered in the decision to do either an initial evaluation or a re-evaluation.

Does the district have to do a re-evaluation before removing my child from special education?

YES!!!!!!  Before a student can be removed from special education a complete re-evaluation must occur.  The only exceptions are when a child is graduating from high school with a regular education diploma or if the student has reached age 21 by August 31 and is no longer eligible for special education services.

What is an evaluation report and can I have a copy?

After the evaluation is completed, a written narrative (the evaluation report) must be given to parents.  It will explain whether or not the student has a disability that makes him/her eligible for special education.  It will also contain:

a statement about whether the student has a disability that meets the criteria for eligibility for special education and the supporting data for that conclusion;

information about how the student’s disability affects involvement and progress in the general education curriculum, or for preschool children, in appropriate activities;

recommended special education and related services needed by the student, including, if appropriate, positive behavioral supports and/or student management strategies;

other information determined through evaluation and parental input;

documentation by each professional (signature and date) certifying that the report represents his/her conclusion or, if disagreeing, a separate statement representing his/her conclusions; and

documentation of the results of the individual assessments or observations by individuals contributing to the report.

Remember, the evaluation report is the foundation for the Individualized Education Program (IEP).

What are the procedures for evaluating Specific Learning Disabilities (SLD)?

In addition to the requirements for determining whether a student qualifies for special education services, there are additional procedures for identifying Specific Learning Disabilities.

Each district may develop procedures for identifying students with SLD which may include the use of a severe discrepancy between intellectual ability and achievement; or a process based on the student’s response to scientific, research-based intervention; or a combination of both.

The decision of whether a student qualifies as having SLD is made by a specific group, including:

Student’s parent;

Student’s general education classroom teacher (if the student does not have a general education classroom teacher, a teacher who is qualified to teach a student of that age);

For a student of less than school age, an individual qualified to teach a student of that age; and

At least one individual qualified to conduct individual diagnostic examinations of students, such as school psychologist, speech language pathologist or remedial reading teacher.

The group described above may determine that a child has SLD if:

  • The student does not achieve adequately for the student’s age or meet the state’s grade level standards when provided with learning experiences and instruction appropriate for the student’s age in one or more of the following areas:
  • Oral expression
  • Listening comprehension
  • Written expression
  • Basic reading skill
  • Reading fluency skill
  • Reading comprehension
  • Mathematics calculation
  • Mathematics problem solving

What if I disagree with the results or recommendations of the evaluation?

Parents might disagree with the evaluation results for a variety of reasons.  The report might not accurately reflect a child’s disability, or it might not have been in-depth enough. A child might be seriously struggling in class with failing grades and yet the test scores do not reflect his/her need for social or organizational support.  Parents then have a right to request an independent educational evaluation (IEE) at district expense.  The request should be in writing and sent by certified mail.  The only way a district can refuse the request is to call for a due process hearing to prove their evaluation is appropriate. The district has to respond within fifteen calendar days to the IEE request. If the district calls for an IEE, and their evaluation is determined to be appropriate, parents still have the right to an independent educational evaluation; however it would be at their own expense. The results of the IEE, whether done at

public or private expense, must be considered by the district in making decisions about placement and/or provision of special education and related services.

What if my child does not qualify for special education services?

If your child is not eligible for special education services (does not need specially designed instruction), he/she may qualify for accommodations under Section 504 of the Rehabilitation Act of 1973.  Section 504 is a non-discrimination law that applies to any district/agency receiving federal funds from the U.S. Department of Education. This law defines disability in more general terms than WAC or IDEA.  If, for instance, a child with a diagnosed disability does not qualify for services under IDEA but is still struggling in school, Section 504 could be used to provide accommodations, related services, and modifications for the child.

Questions To Ask Yourself:

How does my child go about solving problems at home and at school?

What has my child learned so far?

What are the things my child can do?

How and when does my child need assistance?

What kind of assistance is most effective for my child?

How does my child learn best?

What are my child’s strengths?

What are my child’s personality traits?

How does my child get along with adults/ peers?

How does my child feel about him/herself?

What causes my child anxiety?

Where is my child most comfortable

What makes my child comfortable?

What are my child’s interests?

Questions for Schools:

What tests were given?

Why were those specific tests chosen for my child?

What were they supposed to measure?

Do these tests evaluate strengths as well as weaknesses?

Are there any biases in the tests?

Who gave the tests?

How will the information be used?

Questions for a Re-evaluation:

What progress has my child made?

What are the areas in which my child made progress?

What are the areas in which my child has not made progress or has regressed?

On what is this information based (such as classroom observation, in-class testing, standardized testing, etc.)?

May I have a copy of the results of the evaluation, the records of observations, and other documentation?

SAMPLE EVALUATION REQUEST

Special Education Director or Program Coordinator
School District
Street Address
City, State, Zip

Dear (Name):

I am requesting a full and individual evaluation for my son/daughter (Name, Date of Birth) for assessment as a special education student as stipulated in IDEA 300.15 and WAC 392-172A-01070 and under Section 504.

I understand that the evaluation is to be in all areas of suspected disability, and that the school district is to provide this evaluation at no charge to me.  My reasons for requesting this procedure are: ____________________________________________________.

I understand that I am an equal member of the IEP team, and will be involved in any meetings regarding the identification, evaluation, provision of services, placement or decisions regarding a Free Appropriate Public Education (FAPE). I would appreciate meeting with each person who will be doing the evaluation before he/she tests my child so that I might share information about  (child’s name) with him/her.  I will also expect a copy of the written report generated by each evaluator so that I might review it before the team meeting.

I understand you must have my written permission for these tests to be administered and I will be happy to provide that upon receipt of the proper forms.

I appreciate your help in this matter.  If you have any questions, please call me at (telephone number).

Sincerely,

(Signature)

Typed Name
Address
Phone Number

Send this letter by certified mail or hand carry into the district office and get a date/time receipt.  (Remember to keep a copy for your file and indicate to whom you are sending copies by “cc” at bottom of letter.)

The PAVE Parent Training and Information Program may include information on State or Federal laws regarding the rights of individuals with disabilities. While this is provided to inform or make one aware of these rights, legal definitions, or laws/regulations, it is not providing legal representation or legal advice. The recipient understands that this is information is to educate them not to provide them with legal representation.

Procedural Safeguards for Students and Their Families

Requirements under Part B of the Individuals with Disabilities Education Act, the Federal Regulations, and the State Rules Governing Special Education

Special Education: A service, not a place.

Special Education Office of Superintendent of Public Instruction—Dr. Douglas H. Gill, Director of Special Education; Randy I. Dorn, State Superintendent of Public Instruction; Ken Kanikeberg, Chief of Staff; Gil Mendoza, Assistant Superintendent, Special Programs and Federal Accountability.

Revised October 2013

Office of Superintendent of Public Instruction
Old Capitol Building
P.O. Box 47200
Olympia, WA 98504-7200

For more information about this document, please contact:

Special Education, OSPI
E-mail: speced@k12.wa.us
Phone: (360) 725-6075

This document is also available online at:
http://www.k12.wa.us/SpecialEd/Families/Rights.aspx

This material is available in alternative format upon request by contacting:

The Washington School for the Blind, Braille Access Center
http://www.wssb.wa.gov/Content/offcampus/bac.asp
(360)696-6321 x158

OSPI provides equal access to all programs and services without discrimination based on sex, race, creed, religion, color, national origin, age, honorably discharged veteran or military status, sexual orientation including gender expression or identity, the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal by a person with a disability.  Questions and complaints of alleged discrimination should be directed to the Equity and Civil Rights Director at (360) 725-6162 or P.O. Box 47200 Olympia, WA 98504-7200.

Introduction

The Individuals with Disabilities Education Act (IDEA) of 2004, concerning the education of students with disabilities requires schools to provide you, the parents of a student with a disability, or suspected disability, with a notice containing a full explanation of the rights available to you under IDEA and the U.S. Department of Education regulations. The Office of Superintendent of Public Instruction (OSPI) has state rules governing the provision of special education.  These rules are found in Chapter 392-172A Washington Administrative Code (WAC).  This document conforms to the U.S. Department of Education’s Model Procedural Safeguards Notice, revised in June 2009.

Who This Notice is For

This notice is for parents, surrogate parents, and adult students.  References to “you” or “parent” and “your child” also apply to surrogate parents and adult students. References in this notice to the “school district” or “district” include charter schools, and other public agencies, such as educational service districts and educational service agencies.

For More Information

Additional information about special education services and these procedural safeguards are available by contacting your local school district’s special education director, the state’s parent training and information center, Partnerships for Action Voices for Empowerment (Washington Pave), or through OSPI.  OSPI maintains a Web page addressing special education at: http://www.k12.wa.us/SpecialEd/default.aspx. OSPI has program supervisors and a special education ombudsman to assist you with questions about your child’s special education program.  You may reach OSPI, Special Education at (360) 725-6075, TTY (360) 586-0126, or speced@k12.wa.us.

Procedural Safeguards Notice

34 CFR § 300.504; WAC 392-172A-05015

A copy of this notice must be given to you (1) once every school year, and: (2) upon initial referral or your request for evaluation; (3) upon a district’s receipt of your first special education citizen complaint in a school year (4) upon a district’s receipt of your first due process hearing request in a school year; (5) when a decision is made to take a disciplinary action that constitutes a change of placement; and, (6) upon your request.

This procedural safeguards notice includes a full explanation of all of the procedural safeguards related to the unilateral placement of your child at a private school at public expense, special education citizen complaint procedures, informed consent, the procedural safeguards contained in Subpart E of the Part B IDEA regulations, and confidentiality of information provisions contained in Subpart F of the Part B IDEA regulations.  Districts may choose to use this notice or develop their own procedural safeguards notice to parents.

Prior Written Notice

34 CFR §300.503; WAC 392-172A-05010

Your school district must provide you information in writing about important decisions that affect your child’s special education program.  This is called a prior written notice and it is a document that reflects decisions that were made at a meeting or by the district in response to a request made by you.  The district is required to send you a prior written notice after a decision has been made, but before implementing the decision. These are decisions that are related to proposals or refusals to initiate or change the identification, evaluation, placement, or provision of a FAPE to your child.

A prior written notice must include:

What the district is proposing or refusing to do;

An explanation of why the district is proposing or refusing to take action;

A description of any other options considered by the IEP team and the reasons why those options were rejected;

A description of each evaluation procedure, assessment, record, or report used as a basis for the action;

A description of any other factors relevant to the action;

A description of any evaluation procedure the district proposes to conduct for the initial evaluation and any reevaluations;

A statement that parents are protected by the procedural safeguards described in this booklet;

How you can get a copy of this notice of procedural safeguards booklet; or include a copy of this notice of procedural safeguards booklet if one has not been provided to you; and,

Sources for you to contact to get help in understanding these procedural safeguards.

Examples of when you will receive a prior written notice are:

The district wants to evaluate or reevaluate your child, or the district is refusing to evaluate or reevaluate your child.

Your child’s IEP or placement is being changed.

You have asked for a change and the district is refusing to make the change.

You have given the district written notice that you are revoking consent for your child to receive special education services.

Prior written notice must be written in language understandable to the general public and provided in your native language or other mode of communication that you use, unless it is clearly not feasible to do so. If your native language or other mode of communication is not a written language, the district must take steps to ensure that: (1) the notice is translated orally or by other means in your native language or other mode of communication, (2) you understand the content of the notice, and (3) there is written evidence that requirements under (1) and (2) have been met.

Native Language

34 CFR §300.29; WAC 392-172A-01120

Native language, when used regarding an individual who has limited English proficiency, means:

  1. The language normally used by that person, or, in the case of a child, the language normally used by the child’s parents.
    2. In all direct contact with a child (including evaluation of the child), the language normally used by the child in the home or learning environment.

For a person with deafness or blindness, or for a person with no written language, the mode of communication is what the person normally uses (such as sign language, Braille, or oral communication).

 

Electronic Mail

34 CFR §300.505; WAC 392-172A-05020

If your district offers parents the choice of receiving documents by e-mail, you may choose to receive the following by e-mail:

  1. Prior written notice;
    2. Procedural safeguards notice; and,
    3. Notices related to a due process hearing request.

Parental Consent – Definition

34 CFR §300.9; WAC 392-172A-01040

Consent  means:

  1. You have been fully informed in your native language or other mode of communication (such as sign language, Braille, or oral communication) of all information relevant to the action for which you are giving consent;
    2. You understand and agree in writing to that action, and the consent describes that action and lists the records (if any) that will be released and to whom; and,
    3. You understand that the consent is voluntary on your part and you may revoke (withdraw) your consent at any time.

If you wish to revoke consent after your child began receiving special education services, you must do so in writing.  Your withdrawal of consent does not negate (undo) an action that began after you gave your consent and before you withdrew it.  In addition, the school district is not required to amend (change) your child’s educational records to remove any reference to your child’s receipt of special education services.

Parental Consent – Requirements

34 CFR §300.300; WAC 392-172A-03000

Consent for Initial Evaluation

Your district cannot conduct an initial evaluation of your child to determine eligibility for special education and related services until it provides you with prior written notice describing the proposed evaluation activities and obtains your written, informed consent. Your school district must make reasonable effort to obtain your informed consent for an initial evaluation to decide whether your child is eligible for special education.

Your consent for an initial evaluation does not mean that you have given your consent for the district to start providing special education and related services to your child. The school district also has to obtain consent from you to provide your child with special education and related services for the first time.

If your child is enrolled in public school or you are seeking to enroll your child in a public school and you have refused to provide consent, or you have failed to respond to a request to provide consent for an initial evaluation, your district may, but is not required to, try to obtain your consent by using mediation or due process hearing procedures, as described later in this notice.  Your district will not violate its obligations to locate, identify and evaluate your child if it chooses not to pursue an evaluation of your child in this circumstance.

Special Rule for Initial Evaluation of Wards of the State

If your child is a ward of the state and is not living with you, the school district does not need consent from you for an initial evaluation to determine whether your child is eligible for special education if:

  1. Despite reasonable efforts to do so, the district cannot find you;
    2. Your rights as a parent have been terminated in accordance with state law; or,
    3. A judge has assigned the right to make educational decisions to an individual other than you and that person has provided consent for an initial evaluation.

A ward of the state, as used in IDEA, means a child who is:

  1. A foster child who is not placed with a foster parent;
    2. Considered a ward of the state under Washington State law; or,
    3. In the custody of the Department of Social and Health Services or another state’s public child welfare agency.

A ward of the state does not include a foster child who has a foster parent.

Parental Consent for Initial Services and Revocation of Consent for Continued Services

Your school district must make reasonable efforts to obtain your informed written consent and must obtain your informed written consent before providing special education and related services to your child for the first time.

If you do not respond to a request to provide your consent for your child to receive special education and related services for the first time, or if you refuse to give such consent, your district may not use mediation procedures in order to try to obtain your agreement or use due process hearing procedures in order to obtain a ruling from an administrative law judge to provide special education and related services to your child.

If you refuse or do not respond to a request to give your consent for your child to receive special education and related services for the first time, the school district may not provide your child with the special education and related services.  In this situation, your school district:

  1. Is not in violation of the requirement to make a free appropriate public education (FAPE) available to your child because of the failure to provide those services to your child; and,
    2. Is not required to have an IEP meeting or develop an IEP for your child for the special education and related services for which your consent was requested.

Once you provide written consent for your child to receive special education and related services and the district begins to provide special education services, your child will remain eligible to receive special education services until:

  1. He or she is reevaluated and found to no longer qualify for special education services;
    2. He or she graduates with a regular high school diploma;
    3. He or she reaches the age of 21 (or if your child turns 21 after August 31, he or she is eligible for services through the end of the school year.); or,
    4. You provide the district with a written revocation of your consent for the continued provision of special education services.

If you revoke your consent in writing for continued provision of services after the district has initiated special education services, the district must give you prior written notice a reasonable time before it stops providing special education services to your child. The prior written notice will include the date that the district will stop providing services to your child and will inform you that the school district:

  1. Is not in violation of the requirement to make a free appropriate public education (FAPE) available to your child because of the failure to provide those services to your child; and,
    2. Is not required to have an IEP meeting or develop an IEP for your child for further provision of special education services.

A district may not use due process to override your written revocation or use mediation procedures to obtain your agreement to continue to provide special education services to your child.  After the district stops providing special education services to your child, your child is no longer considered to be eligible for special education services and is   subject to the same requirements that apply to all students.  You or others who are familiar with your child, including the school district, may refer the child for an initial evaluation at any time after you revoke consent for your child to receive special education.

Parental Consent for Reevaluations

If new testing is to be conducted as part of your child’s reevaluation, your district must obtain your informed consent before it reevaluates your child, unless your district can demonstrate that:

  1. It took reasonable steps to obtain your consent for your child’s reevaluation; and,
    2. You did not respond.

If you refuse to consent to new testing as part of your child’s reevaluation, the district may, but is not required to, pursue your child’s reevaluation by using the mediation procedures to seek agreement from you or use the due process hearing procedures to override your refusal to consent to your child’s reevaluation. As with initial evaluations, your district does not violate its obligations under Part B of IDEA if it declines to pursue the reevaluation using mediation or due process procedures.

Documentation of Reasonable Efforts to Obtain Parental Consent

Your school must maintain documentation of reasonable efforts to obtain your consent for initial evaluations, to provide special education and related services for the first time, to conduct a reevaluation that involves new testing, and to locate parents of wards of the state for initial evaluations.  The documentation must include a record of the district’s attempts in these areas, such as:

  1. Detailed records of telephone calls made or attempted and the results of those calls;
    2. Copies of correspondence sent to you and any responses received; and,
    3. Detailed records of visits made to your home or work and the results of those visits.

Other Consent Information

Your consent is not required before your district may:

  1. Review existing data as part of your child’s evaluation or reevaluation; or,
    2. Give your child a test or other evaluation that is given to all children unless, before that test or evaluation, consent is required from all parents of children.

Your district may not use your refusal to consent to one service or activity to deny you or your child any other service, benefit, or activity.

If you have enrolled your child in a private school at your own expense or if you are home schooling your child, and you do not provide your consent for your child’s initial evaluation or reevaluation, or you fail to respond to a request to provide your consent, the district may not use mediation procedures to obtain your agreement or use due process hearing procedures to override your refusal.  The district is also not required to consider your child as eligible to receive equitable private school services, which are services made available to some parentally-placed private school students eligible for special education.

Independent Educational Evaluations

34 CFR §300.502; WAC 392-172A-05005

You have the right to obtain an independent educational evaluation (IEE) of your child if you disagree with the evaluation that was conducted by your district.  If you request an IEE, the district must provide you with information about where you may obtain an IEE and about the district’s criteria that apply to the IEEs.

 

Definitions

Independent educational evaluation (IEE) means an evaluation conducted by a qualified examiner who is not employed by the district responsible for the education of your child.

Public expense means that the district either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to you.

Parent Right to an IEE at Public Expense

You have the right to an IEE of your child at public expense if you disagree with an evaluation of your child conducted by your district, subject to the following conditions:

  1. If you request an IEE of your child at public expense, your school district must, within 15 calendar days of your request, either:  (a) file a due process hearing request to show that its evaluation of your child is appropriate or that the evaluation of your child that you obtained did not meet the district’s criteria; or, (b) agree to provide an IEE at public expense.
  2. If your school district requests a due process hearing and the final decision is that the district’s evaluation of your child is appropriate, you still have the right to an IEE, but not at public expense.
  3. If you request an IEE of your child, your school district may ask why you object to the evaluation conducted by the district.  However, the district may not require an explanation and may not unreasonably delay either providing the IEE of your child at public expense or filing a request for a due process hearing to defend the district’s evaluation of your child.

You are only entitled to one IEE of your child at public expense each time your school district conducts an evaluation of your child with which you disagree.

Parent-Initiated Evaluations

If you obtain an IEE of your child at public expense or you provide the district with an IEE that you obtained at private expense:

  1. Your district must consider the results of the IEE in any decision made with respect to the provision of a FAPE to your child, if it meets the district’s criteria for IEEs; and,
  2. You or your district may present the IEE as evidence at a due process hearing regarding your child.

Requests for Evaluations by Administrative Law Judges (ALJ)

If an ALJ requests an IEE of your child as part of a due process hearing, the cost of the evaluation must be at public expense.

District Criteria

If an IEE is at public expense, the criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, must be the same as the criteria that the district uses when it initiates an evaluation (to the extent those criteria are consistent with your right to an IEE).

Except as described above, a district may not impose conditions or timelines related to obtaining an IEE at public expense.

Confidentiality of Information

IDEA gives you rights regarding your child’s special education records.  These rights are in addition to rights that you have under the Family Educational Rights and Privacy Act (FERPA) which is a law that provides educational records protections to all students.

Definitions

34 CFR §300.611; WAC 392-172A-05180

As used under the heading Confidentiality of Information:

Destruction means physical destruction or removal of personal identifiers from information so that the information is no longer personally identifiable.

Education records means the type of records covered under the definition of ‘‘education records’’ in 34 CFR Part 99 (the regulations implementing the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. 1232g (FERPA)).

Participating Agency means any school district, agency or institution that collects, maintains, or uses personally identifiable information, or from which information is obtained, under Part B or IDEA.

Personally Identifiable

34 CFR §300.32; WAC 392-172A-01140

Personally identifiable means information that has:

  1. Your child’s name, your name as the parent, or the name of another family member;
    2. Your child’s address;
    3. A personal identifier, such as your child’s social security number or student number; or,
    4. A list of personal characteristics or other information that would make it possible to identify your child with reasonable certainty.

Notice to Parents

34 CFR §300.612; WAC 392-172A-05185

OSPI gives notice, through its regulations, to fully inform you about the confidentiality of personally identifiable information, including:

  1. A description of the extent to which the notice is given in the native languages of various population groups in Washington;
  2. A description of the children on whom personally identifiable information is maintained, the types of information sought, the methods Washington intends to use in gathering the information (including the sources from whom information is gathered), and the uses to be made of the information;
  3. A summary of the policies and procedures that districts must follow regarding storage, disclosure to third parties, retention, and destruction of personally identifiable information; and,
  4. A description of all of the rights of parents and students regarding this information, including the rights under the Family Educational Rights and Privacy Act (FERPA) and its implementing regulations in 34 CFR Part 99.

Before any major statewide identification, location, or evaluation activity (also known as “child find”), a notice must be published in newspapers or announced in other media, or both, with circulation adequate to notify parents throughout the state of the activity to locate, identify, and evaluate children in need of special education and related services.

Access Rights

34 CFR §300.613-617; WAC 392-172A-05190–05210

You have the right to inspect and review your child’s education records that are collected, maintained, or used by your school district under Part B of IDEA. The district must comply with your request to inspect and review any education records on your child without unnecessary delay and before any meeting regarding an IEP, or any impartial due process hearing (including a resolution meeting or a special education due process hearing regarding discipline), and in no case more than 45 calendar days after you have made a request.

Your right to inspect and review education records includes:

  1. Your right to a response from the district to your reasonable requests for explanations and interpretations of the records;
  2. Your right to request that the school district provide copies of the records if you cannot effectively inspect and review the records unless you receive those copies; and,
  3. Your right to have your representative inspect and review the records.

A district will assume that you have authority to inspect and review records relating to your child unless it is advised that you do not have the authority under applicable state law governing such matters as guardianship, separation, and divorce.

 

Record of Access

Each school district must keep a record of parties who obtain access to education records collected, maintained, or used under Part B of IDEA, including the name of the party, the date access was given, and the purpose for which the party is authorized to use the records. School districts are not required to keep this record of access for parents or authorized employees of the school district.

 

Records on More Than One Child

If any education record includes information on more than one student, you have the right to inspect and review only the information relating to your child or be informed about that information if the district cannot show that information to you without divulging personally identifiable information about another student.

 

List of Types and Locations of Information

If you request it, the school district must provide you with a list of the types and locations of education records collected, maintained, or used by the school district.

 

Fees

The school district may charge a fee for copies of records that are made for you under Part B of IDEA, if the fee does not effectively prevent you from exercising your right to inspect and review those records. It may not charge a fee to search or to retrieve information under IDEA.

Amendment of Records at Parent’s Request

34 CFR §300.618 – §300.621; WAC 392-172A-05125

If you believe that information in the education records regarding your child collected, maintained, or used under IDEA is inaccurate, misleading, or violates the privacy or other rights of your child, you may ask the district to change the information.

The district must decide whether to change the information in accordance with your request within a reasonable period of time of receipt of your request.

 

Opportunity for a Hearing, Hearing Procedures and Results of the Hearing

If your school district refuses to change the information in accordance with your request, it must inform you of that decision and advise you of your right to a hearing by the district.

You have the right to request a hearing to challenge the information in your child’s education records to ensure that it is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of your child. The hearing to contest the information in education records must be conducted according to the district’s hearing procedures under FERPA.  This is not a special education due process hearing.

If, as a result of the hearing, the district decides that the information is inaccurate, misleading or otherwise in violation of the privacy or other rights of the student, it must change the information accordingly and inform you of those changes in writing.

If, as a result of the hearing, the district decides that the information is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of your child, it must inform you that you have the right to place a statement in your child’s educational records commenting on the information or providing any reasons you disagree with the decision of the district.

If you choose to put a statement in your child’s records the statement must:

  1. Be maintained by the district as part of the records of your child as long as the record or contested portion is maintained; and,
  2. If the district discloses the records of your child or the challenged portion to any party, the statement must also be disclosed to that party.

Consent for Disclosure of Personally Identifiable Information

34 CFR §300.622; WAC 392-172A-05225

Your written consent must be obtained before personally identifiable information is disclosed to others unless disclosure of the information contained in your child’s education records is allowed without parental consent under FERPA. In general, your consent is not required before personally identifiable information is released to officials of participating agencies for purposes of meeting a requirement of Part B of IDEA. However, your consent, or the consent or your child if he or he has reached the age of majority, must be obtained before personally identifiable information is released to officials of participating agencies providing or paying for transition services.  In addition, if your child attends a private school, your consent must be obtained before any personally identifiable information about your child is released between officials in the district where the private school is located and officials in the district where your child resides if you are not planning to enroll your child in your district of residence.

Safeguards for Personally Identifiable Information

34 CFR §300.623; WAC 392-172A-05230

Your school district must protect the confidentiality of personally identifiable information at collection, storage, disclosure, and destruction stages. One official at the school district must assume responsibility for ensuring the confidentiality of any personally identifiable information. All persons collecting or using personally identifiable information must receive training or instruction regarding confidentiality under Part B of IDEA and FERPA.

Each school district must maintain, for public inspection, a current listing of the names and positions of those employees within the agency who may have access to personally identifiable information.

 

Destruction, Retention and Storage of Information

34 CFR §300.624; WAC 392-172A-05235

Your school district must inform you when personally identifiable information collected, maintained, or used is no longer needed to provide educational services to your child.

When it is no longer needed, the information must be destroyed at your request. However, a permanent record of your child’s name, address, and phone number, his or her grades, attendance record, classes attended, grade level completed, and year completed may be maintained without time limitation.

State law regarding records retention is contained in Chapter 40.14 RCW.  The procedures for how long a district must retain records are published by the Washington Secretary of State, Division of Archives and Records Management.

Special Education Dispute Resolution Procedures

You are an important participant in all aspects of your child’s special education program. This involvement begins at the initial referral of your child. You and your district are encouraged to work together to try to resolve disagreements that affect your child’s special education program. When you and your school district are not able to resolve disagreements, there are more formal dispute resolution options available.   These options are mediation, citizen complaints, and impartial due process hearings.

 

Mediation

34 CFR § 300.506; WAC 392-172A-05060–05075

General

Mediation services are available at no cost to you or the district to help resolve problems involving the identification, evaluation, educational placement, and provision of a FAPE to your child and whenever a due process hearing is requested.  Mediation is voluntary and cannot be used to deny or delay your right to a due process hearing or to deny any other rights afforded under Part B of IDEA.  The mediation sessions are scheduled in a timely manner at a location that is convenient to you and the district.

The school district may develop procedures that offer parents that choose not to use the mediation process, an opportunity to meet, at a time and location convenient to you, with a disinterested party:

  1. Who is under contract with an appropriate alternative dispute resolution entity, or a parent training and information center or community parent resource center in the state; and,
  2. Who would explain the benefits and encourage the use of the mediation process to you.

Impartiality of Mediator

Mediation is conducted by an individual who is qualified, impartial, and trained in effective mediation techniques.  That individual must also be knowledgeable in the laws and regulations relating to the provision of special education and related services. OSPI contracts with an outside agency to conduct mediations.  That agency maintains the list of mediators.  Mediators are assigned on a random, rotational, or other impartial basis. The mediator (1) may not be an employee of OSPI, a district or other state agency that is providing direct services to a child who is the subject of the mediation process, and (2) may not have a personal or professional conflict of interest. The mediation sessions are scheduled in a timely manner at a location that is convenient to you and the district.

Agreements Reached in Mediation

If you and the district reach an agreement, it must be documented in a written mediation agreement that is signed by you and a representative of the district authorized to enter into legally binding agreements. Discussions during the mediation sessions are confidential and may not be used as evidence in any due process hearings or civil proceedings of any Federal court or Washington State court.  This must be stated in the written agreement.  However, the mediation agreement itself may be used as evidence. Mediation agreements are legally binding and enforceable in any state court of competent jurisdiction or in a district court of the United States.

Differences Between Special Education Citizen Complaint Investigations and Due Process Hearings

The regulations for Part B of IDEA have different procedures for state complaints (citizen complaints) and due process hearings.  A citizen complaint may be filed with OSPI by any individual or organization alleging that a school district, OSPI, or any other public agency has violated a Part B requirement, federal rules contained in 34 CFR Part 300, or state regulations implementing Part B of the IDEA. Citizen complaints are investigated by OSPI, based on information about the violations provided by the person filing the complaint, and the school district, or other agency responding to the complaint. Citizen complaints must be filed within one year of the alleged violation.

Due process hearing requests may only be filed by you or your school district on any matter relating to the identification, evaluation, or educational placement of your child, or the provision of a free appropriate public education (FAPE) to your child.  The due process hearings are conducted by an administrative law judge (ALJ), employed by the Office of Administrative Hearings, which is an independent state agency.  Due process hearings generally involve testimony of witnesses and introduction of evidence.  Due process hearing requests must be filed within two years of the alleged violation (with some exceptions for misrepresentation or withholding information.)

The timelines and procedures for citizen complaints and due process hearings are explained below.

Citizen Complaint Procedures

34 CFR §§300.151 – 300.153; WAC 392-172A-05025–05045

OSPI has procedures for resolving state complaints.  The procedures are contained in the state regulations and information regarding state complaints is maintained on the Web site.

If you, any individual, or organization, believes a district, OSPI, or any other educational entity governed by IDEA has violated Part B of IDEA, the regulations implementing Part B, or corresponding state regulations, you may file a written complaint with the Office of Superintendent of Public Instruction (OSPI), Special Education, PO Box 47200, Olympia, WA 98504-7200. You must provide a copy of the complaint to the district or other agency against whom you are complaining.

 

Filing a Complaint

The complaint must be signed by you or the person or organization filing the complaint and must include the following information:

A statement that a district or other agency has violated a requirement of Part B of IDEA, the regulations implementing Part B, corresponding state law or regulations, or a statement that the district or other agency is not implementing a mediation or resolution agreement;

The name and address of the district or other agency;

The name of the student, if the complaint is specific to a student, and contact information if the student is homeless;

A description of the problem with specific facts;

A proposed resolution of the problem to the extent this information is known and available you at the time you file the complaint; and,

Your name, address, and telephone number.

The violation must not have occurred more than one year prior to the date that the complaint is received.

OSPI has developed an optional form that you may use to file a complaint.  This form is available on OSPI’s special education Web page.  You are not required to use this form.

 

Complaint Investigations

OSPI must investigate and issue a written decision 60 calendar days after it receives a complaint, unless an extension of time is warranted. During the 60 days, OSPI (1) requires the district to provide a response to the complaint; (2) gives you or the complainant the opportunity to submit additional information about the allegations in the complaint; (3) may carry out an independent on-site investigation, if OSPI determines it is necessary; and (4) reviews all relevant information and makes an independent determination as to whether the district or other agency is violating a requirement related to Part B of IDEA.

Investigation, Extension, Written Decision

The 60 calendar-day time limit may be extended only if: (1) exceptional circumstances exist with respect to a particular complaint; or, (2) you and the school district voluntarily agree in writing to extend the time to resolve the complaint through mediation or other methods to resolve the dispute.

A written decision is sent to you or the person filing the complaint and to the school district. The written decision will address each allegation. For each allegation the written decision will state findings of fact, conclusions, the reasons for the decision, and any reasonable corrective measures deemed necessary to resolve the complaint if a violation has occurred.

Complaint Remedies

When OSPI finds a violation or a failure to provide appropriate services through its complaint process, the decision addresses:

  1. How to remediate the denial of those services, including as appropriate, the awarding of monetary reimbursement or other corrective action appropriate to the needs of the student(s); and,
  2. Appropriate future provision of special education services for all students.

Special Education Citizen Complaints and Due Process Hearings

If a citizen complaint is received that is also the subject of a due process hearing or the complaint contains multiple issues, and one or more of those issues are part of a due process hearing, OSPI must set aside (not investigate) any part of the complaint that is being addressed in the due process hearing until the hearing is over. Any issue in the complaint that is not a part of the due process action must be resolved within complaint timelines.

If an issue raised in a complaint has been previously decided in a due process hearing involving the same parties, the hearing decision is binding and OSPI must inform the complainant that it may not investigate that issue.

OSPI must resolve a complaint alleging that a district has failed to implement a due process decision.

 

Due Process Hearing Procedures

34 CFR §§300.507 – 300.513; WAC 392-172A-05080–05125

General

You or the school district may file a due process hearing request on any matter relating to the identification, evaluation, or educational placement of your child or the provision of a FAPE to your child. The district must inform you of any free or low-cost legal and other relevant services available in the area when a due process hearing request is filed or when you request this information. For due process hearing procedures, “you”, includes your attorney if you have retained one, and “district” includes the district’s attorney if the district is represented by an attorney.

 

Filing

To request a hearing, you or the district must submit a due process hearing request to the other party.  That request must contain all of the content listed below and must be kept confidential.

You or the district, whichever one filed the request, must also provide OSPI, Administrative Resource Services a copy of the hearing request at the following address:

Office of Superintendent of Public Instruction

Administrative Resource Services

Old Capitol Building
PO Box 47200
Olympia, WA  98504-7200
FAX: 360-753-4201

The due process hearing request must include:

  1. The name of the student;
    2. The address of the student’s residence;
    3. The name of the student’s school;
    4. If the student is a homeless child or youth, the student’s contact information;
    5. A description of the nature of the problem, including facts relating to the problem; and,
    6. A proposed resolution of the problem to the extent known and available to you or the district at the time.

Notice Required Before a Hearing on a Due Process Hearing Request

You or the district may not have a due process hearing until you or the district files a due process hearing request with the other party and provides OSPI with a copy of the request that includes the information listed above.

Sufficiency of a Hearing Request

In order for a due process hearing request to go forward, it must be considered sufficient. Sufficient means that the request meets the content requirements noted above under Filing. The due process hearing request will be considered sufficient unless the party who received the due process hearing request notifies the ALJ and the other party in writing, within 15 calendar days, that the receiving party believes the due process hearing request is not sufficient.

Within five calendar days of receiving the notification of insufficiency, the ALJ must decide if the due process hearing request meets the requirements listed above, and notify you and the district in writing immediately.

Amendment of a Hearing Request

You or the district may make changes to the hearing request only if:

  1. The other party approves of the changes in writing and is given the chance to resolve the hearing request through a resolution meeting (if you, the parent has requested the due process hearing), described below; or,
  2. By no later than five days before the due process hearing begins, the hearing officer grants permission for the changes.

If you are the party requesting the hearing and you make changes to the due process hearing request, the timelines for the resolution meeting and the time period for resolution (See: Resolution Process) start again on the date the amended request is filed, or the date the ALJ grants the request.

 

District Response to a Due Process Hearing Request

If the district has not sent a prior written notice to you, as described under the heading Prior Written Notice, regarding the subject matter contained in your due process hearing request, the district must, within 10 calendar days of receiving the due process hearing request, send to you a response that includes:

  1. An explanation of why the district proposed or refused to take the action raised in the due process hearing request;
  2. A description of other options that your child’s IEP team considered and the reasons why those options were rejected;
  3. A description of each evaluation procedure, assessment, record, or report the district used as the basis for the proposed or refused action; and,
  4. A description of the other factors that are relevant to the district’s proposed or refused action.

A district may still assert that your due process hearing request is insufficient even though it provides you with the information in items 1-4 above.

Other Party’s Response to a Due Process Hearing Request

Except for expedited due process hearings for discipline, discussed under the section, Due Process Hearing Procedures for Discipline, the party receiving a due process hearing request must, within 10 calendar days of receiving the request, send the other party a response that specifically addresses the issues in the request.  Either party may still assert that the due process hearing request is insufficient.

Model Forms

34 CFR §300.509; WAC 392-172A-05085

OSPI has developed a model due process hearing request form to assist you in filing a request for a due process hearing.  The form is available at the following Web sites:

http://www.k12.wa.us/ProfPractices/adminresources/forms.aspx

http://www.k12.wa.us/SpecialEd/DisputeResolution/DueProcess.aspx.

You are not required to use this form.  However, your right to a due process hearing can be denied or delayed if the due process hearing request does not include all of the required information.   You may also obtain a copy of the hearing request form from your district’s special education department.

Student Placement While the Due Process Hearing is Pending

34 CFR §300.518; WAC 392-172A-05125

Except as provided below under the heading Procedures When Disciplining Students With Disabilities, once a due process hearing request is sent to the other party, during the resolution process time period, and while waiting for the decision of any impartial due process hearing or a court proceeding involving an appeal of an ALJ’s decision, your child must remain in his or her current educational placement unless you and the district agree otherwise.

If the due process hearing request involves an application for initial admission to public school, your child, with your consent, must be placed in the regular public school program until the completion of all such proceedings.

If the due process hearing request involves the provision of initial services under Part B of IDEA, for your child, who is transitioning from being served under Part C of IDEA to Part B of IDEA, and who is no longer eligible for Part C services because your child has turned three, the district is not required to provide the Part C services that he or she has been receiving.  If your child is found eligible under Part B of IDEA and you give consent for your child to receive special education and related services for the first time, then, pending the outcome of the proceedings, the district must provide those special education and related services that are not in dispute between you and the district.

If the ALJ reaches a decision that a change of placement is appropriate, that decision regarding placement must be treated as an agreement between you and the school district for purposes of placement during any court appeal of the due process decision.

Resolution Process

34 CFR §300.510; WAC 392-172A-05090

Resolution Meeting

Within 15 days after you have filed your due process hearing request with the district and OSPI, the district must convene a meeting with you and the relevant member or members of the IEP team who have specific knowledge of the facts identified in your due process hearing request. This meeting must occur before the due process hearing timeline begins, unless you and the district agree to mediation or agree to waive the resolution meeting.  The meeting:

  1. Must include a representative of the district who has decision-making authority on behalf of the district; and,
  2. May not include an attorney of the district unless you are accompanied by an attorney.

The purpose of the meeting is for you to discuss your due process hearing request and the facts that form the basis of the request, so that the district has the opportunity to resolve the dispute. You and the district determine the relevant members of the IEP team to attend the resolution meeting.

The resolution meeting is not necessary if:

  1. You and the district agree in writing to waive the meeting; or,
  2. You and the district agree to use the mediation process, as described under the heading Mediation.

 

Resolution Period

If the district has not resolved the due process hearing request to your satisfaction within 30 calendar days of you providing the due process hearing request to the District and OSPI, the due process hearing may occur.

The 45-calendar-day timeline for issuing a final decision begins at the end of the 30-calendar-day resolution period, with certain exceptions for adjustments made to the 30-calendar-day resolution period, as described below.

Unless you and the district have both agreed to waive the resolution process or to use mediation, your failure to participate in the resolution meeting will delay the timelines for the resolution process and due process hearing until you agree to participate in a meeting.

If the district is not able to obtain your participation in the resolution meeting after making reasonable efforts and documenting those efforts, the district may, at the end of the 30-calendar-day resolution period, request that the ALJ dismiss your due process hearing request.  The school district must document its attempts to arrange a mutually agreed upon time and place for the resolution meeting.  The record of documentation includes attempts, such as:

  1. Detailed records of telephone calls made or attempted and the results of those calls;
  2. Copies of correspondence sent to you and any responses received; and,
  3. Detailed records of visits made to your home or work and the results of those visits.

If the district fails to hold the resolution meeting within 15 calendar days of you providing  your due process hearing request to the district and OSPI, orthe district fails to participate in the resolution meeting, you may ask an ALJ to order that the 45-calendar-day due process hearing timeline begin.

Adjustments to the 30-Calendar-Day Resolution Period

If you and the district agree in writing to waive the resolution meeting, then the 45-calendar-day timeline for the due process hearing starts the next day.

After the start of mediation or the resolution meeting and before the end of the 30-calendar-day resolution period, if you and the district agree in writing that no agreement is possible, then the 45-calendar-day timeline for the due process hearing starts the next day.

If you and the district agree to use the mediation process, but have not yet reached agreement, at the end of the 30-calendar-day resolution period, both parties can agree in writing to continue the mediation until an agreement is reached. However, if either you or the district withdraw from the mediation process, then the 45-calendar-day timeline for the due process hearing starts the next day.

Written Settlement Agreement

If you and the district resolve your dispute at the resolution meeting, you and the district must enter into a legally binding agreement that is:

  1. Signed by you and a representative of the district who has the authority to bind the district; and
  2. Enforceable in any Washington State Superior court of competent jurisdiction or in a district court of the United States.

 

Agreement Review Period

If you and the district enter into an agreement as a result of a resolution meeting, either you or the district may void the agreement within 3 business days of the time that both you and the district signed the agreement.

Impartial Due Process Hearing

34 CFR §300.511; WAC 392-172A-05080–05095

General

Whenever a due process hearing request is filed, you or the district involved in the dispute must have an opportunity for an impartial due process hearing.

Administrative Law Judge (ALJ)

The hearing will be conducted by a qualified independent ALJ, who is employed by the Office of Administrative Hearings (OAH).

At a minimum, an ALJ:

  1. Must not be an employee of OSPI or the district that is involved in the education or care of the child.  However, a person is not an employee of the agency solely because he or she is paid by the agency to serve as an ALJ;
  2. Must not have a personal or professional interest that conflicts with the ALJ’s objectivity in the hearing;
  3. Must be knowledgeable and understand the provisions of IDEA, and federal and state regulations pertaining to IDEA, and legal interpretations of IDEA by federal and state courts; and
  4. Must have the knowledge and ability to conduct hearings, and to make and write decisions, consistent with appropriate, standard legal practice.

Each district must keep a list of persons who serve as ALJs, that includes a statement of the qualifications of each ALJ. The list of ALJs is also maintained on the OSPI Web site.

Subject Matter of Due Process Hearing

The party that requests the due process hearing may not raise issues at the due process hearing that were not addressed in the due process hearing request, unless the other party agrees.

Timeline for Requesting a Hearing

You or the district must file your due process hearing request within two years of the date you or the district knew, or should have known, about the issues addressed in the hearing request.

Exceptions to the Timeline

The above timeline does not apply if you could not file a due process hearing request because:

  1. The district specifically misrepresented that it had resolved the problem or issue that you are raising in your hearing request; or
  2. The district withheld information from you that it was required to provide to you under Part B of IDEA.

Hearing Rights

34 CFR §300.512; WAC 392-172A-05100

General

You have the right to represent yourself at a due process hearing (including a hearing related to disciplinary procedures.) You and the school district, as parties to a due process hearing (including a hearing relating to disciplinary procedures) have the right to:

  1. Be represented by a lawyer and accompanied  and advised by persons with special knowledge or training regarding the problems of students with disabilities;
  2. Present evidence and confront, cross-examine, and require the attendance of witnesses;
  3. Prohibit the introduction of any evidence at the hearing that has not been disclosed to the other party at least five business days before the hearing;
  4. Obtain a written, or, at your option, electronic, word-for-word record of the hearing; and
  5. Obtain written, or, at your option, electronic findings of fact and decisions.

Additional Disclosure of Information

At least five business days prior to a due process hearing, you and the district must disclose to each other all evaluations completed by that date and recommendations based on those evaluations that you or the district intend to use at the hearing.

An ALJ may prevent any party that fails to comply with this requirement from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party.

 

Parental Rights at Hearings

You must be given the right to:

  1. Have your child present;
    2. Open the hearing to the public; and,
    3. Have the record of the hearing, the findings of fact and decisions provided to you at no cost.

Timelines and Convenience of Hearings

34 CFR §300.515; WAC 392-172-05110

Not later than 45 calendar days after the expiration of the 30-calendar-day period for resolution meetings or, not later than 45 calendar days after the expiration of the adjusted resolution time period:

  1. A final decision is reached in the hearing; and,
    2. A copy of the decision is mailed to each of the parties.

An ALJ may grant specific extensions of time beyond the 45-calendar-day time period described above at the request of either party.

Each hearing must be conducted at a time and place that is reasonably convenient to you and your child.

Hearing Decisions

34 CFR § 300.513; WAC 392-172-05105

Decision of ALJ

An ALJ’s decision about whether your child received a free appropriate public education (FAPE) must be based on substantive grounds.

In hearings where you allege that the district has made a procedural violation, an ALJ may find that your child did not receive FAPE only if the procedural inadequacies:

  1. Interfered with your child’s right to a FAPE;
  2. Significantly interfered with your opportunity to participate in the decision-making process regarding the provision of a FAPE to your child; or,
  3. Caused a deprivation of an educational benefit.

 

Construction Clause

Even if an ALJ does not find a FAPE violation, the ALJ may still order the district to comply with the requirements in the procedural safeguards section of the Federal regulations under Part B of IDEA (34 CFR §§300.500 through 300.536).

 

Separate Request for a Due Process Hearing

You may file a separate due process hearing request on an issue separate from a due process hearing request already filed.

 

Findings and Decision to Advisory Panel and General Public

OSPI deletes any personally identifiable information and:

  1. Provides the findings and decisions in due process hearings to Washington’s Special Education Advisory Committee (SEAC); and,
  2. Makes those findings and decisions available to the public.

Finality of Decision; Appeal

34 CFR §300.514; WAC 392-172A-05115

A decision made in a due process hearing (including a hearing relating to disciplinary procedures) is final, unless either party (you or the district) involved in the hearing appeals the decision by bringing a civil action, as described below.

Civil Actions, Including the Time Period in Which to File Those Actions

34 CFR §300.516; WAC 392-172A-05115

General

If either party does not agree with the findings and decision in the due process hearing (including a hearing relating to disciplinary procedures), that party has the right to bring a civil action with respect to the matter that was the subject of the due process hearing. The action may be brought in a state court of competent jurisdiction (a state court that has authority to hear this type of case) or in a district court of the United States.  The district courts of the United States have authority to rule on actions brought under Part B of IDEA without regard to the amount in dispute.

Time Limitation

The party bringing the action will have 90 calendar days from the date of the decision of the ALJ to file a civil action.

Additional Procedures

In any civil action, the court:

  1. Receives the records of the administrative proceedings;
  2. Hears additional evidence at your request or at the district’s request; and,
  3. Bases its decision on the preponderance of the evidence and grants the relief that the court determines to be appropriate.

 

Rule of Construction

Nothing in Part B of IDEA restricts or limits the rights, procedures, and remedies available under the U.S. Constitution, the Americans with Disabilities Act of 1990, Title V of the Rehabilitation Act of 1973 (Section 504), or other Federal laws protecting the rights of students with disabilities. However, if you are filing a civil action under these laws and you are seeking relief that is also available under Part B of IDEA, the due process hearing procedures described above must be exhausted to the same extent as would be required if you filed the action under Part B of IDEA.  This means that you may have remedies available under other laws that overlap with those available under IDEA, but in general, to obtain relief under those other laws; you must first use the impartial due process hearing procedures to obtain remedies available under IDEA before going directly into court.

Attorneys’ Fees

34 CFR §300.517; WAC 392-172A-05120

General

If you prevail (win) in the civil action and are represented by an attorney, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to you.

In any action or proceeding brought under Part B of IDEA, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to a prevailing school district, or OSPI, to be paid by your attorney, if the attorney: (a) filed a complaint or court case that the court finds is frivolous, unreasonable, or without foundation; or, (b) continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation; or,

In any action or proceeding brought under Part B of IDEA, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to a prevailing school district or OSPI, to be paid by you or your attorney, if your request for a due process hearing or later court case was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to unnecessarily increase the cost of the action or proceeding.

Award of Fees

Attorneys’ fees must be based on rates prevailing in the community in which the action or hearing arose for the kind and quality of services furnished. No bonus or multiplier may be used in calculating the fees awarded.

Attorneys’ fees may not be awarded and related costs may not be reimbursed in any action or proceeding under Part B of IDEA for services performed after a written offer of settlement to you if:

  1. The offer is made within the time prescribed by Rule 68 of the Federal Rules of Civil Procedure or, in the case of a due process hearing or state-level review, at any time more than 10 calendar days before the proceeding begins;
  2. The offer is not accepted within 10 calendar days; and,
  3. The court or ALJ finds that the relief finally obtained by you is not more favorable to you than the offer of settlement.

Despite these restrictions, the court may award of attorneys’ fees and related costs to you if you prevail and you were substantially justified in rejecting the settlement offer.

Attorneys’ fees may not be awarded relating to any meeting of the IEP team unless the meeting is held as a result of an administrative proceeding or court action.

A resolution meeting required under due process hearing procedures is not considered a meeting convened as a result of an administrative hearing or court action, and also is not considered an administrative hearing or court action for purposes of these attorneys’ fees provisions.

The court may reduce, as appropriate, the amount of the attorneys’ fees awarded under Part B of IDEA, if the court finds that:

  1. You, or your attorney, during the course of the action or proceeding, unreasonably delayed the final resolution of the dispute;
  2. The amount of the attorneys’ fees otherwise authorized to be awarded unreasonably exceeds the hourly rate prevailing in the community for similar services by attorneys of reasonably similar skill, reputation, and experience;
  3. The time spent and legal services furnished were excessive considering the nature of the action or proceeding; or,
  4. The attorney representing you did not provide to the district the appropriate information in the due process request notice as described under the heading Due Process Hearing Request.

However, the court may not reduce fees if the court finds that the state or school district unreasonably delayed the final resolution of the action or proceeding or there was a violation under the procedural safeguards provisions of Part B of IDEA.

Discipline Procedures for Students Eligible for Special Education

There are special education protections afforded to your child when he or she is disciplined.  These protections are in addition to discipline procedures that apply to all students.  These protections also apply to students who have not yet been found eligible for special education if the district should have known that the student would be eligible.

Authority of School Personnel

34 CFR §300.530; WAC 392-172A-05145

Case-By-Case Determination

School personnel may consider any unique circumstances on a case-by-case basis, when determining whether a change of placement, made in accordance with the following requirements related to discipline, is appropriate for your child who violates a school code of student conduct.

 

General

To the extent that they also take such action for students without disabilities, school personnel may, for not more than 10 school days in a row, remove your child from his or her current placement to an appropriate interim alternative educational setting, another setting, or suspend your child, when he or she violates a code of student conduct. School personnel may also impose additional removals of your child of not more than 10 school days in a row in that same school year for separate incidents of misconduct; as long as those removals do not constitute a change of placement (see Change of Placement Because of Disciplinary Removals for the definition, below).

Once your child has been removed from his or her current placement for a total of 10 school days in the same school year, the district must, during any subsequent days of removal in that school year, provide services to the extent required below under the sub-heading Services.

 

Additional Authority

If the behavior that violated the student code of conduct was not a manifestation of your child’s disability (see Manifestation Determination, below) and the disciplinary change of placement would exceed 10 school daysin a row, school personnel may apply the disciplinary procedures to your child in the same manner and for the same duration as it would to students without disabilities, except that the school must provide services to your child as described below under Services.  Your child’s IEP team determines the interim alternative educational setting for the services to your child in this situation.

Services

The services that must be provided to your child, when he or she has been removed from his or her current placement may be provided in an interim alternative educational setting.

A district is not required to provide services to your child if he or she has been removed from his or her current placement for 10 school days or less in that school year, unless it provides services to students without disabilities who have been similarly removed.

If your child has been removed from his or her current placement for more than 10 school days your child must:

  1. Continue to receive educational services, so as to enable your child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in his or her IEP; and,
  2. If your child’s behavior was not a manifestation of his or her disability, he or she must receive, as appropriate, a functional behavioral assessment, and behavioral intervention services and modifications, which are designed to address the behavior violation so that it does not happen again.

After your child has been removed from his or her current placement for 10 school days in that same school year, and if the current removal is for 10 school days in a row or less, and, if the removal is not determined to be a change of placement (see definition below), then, school personnel, in consultation with at least one of your child’s teachers, will determine the extent to which services are needed to enable your child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in your child’s IEP.

If the removal is a change of placement (see definition below), your child’s IEP team determines the appropriate services to enable your child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in his or her IEP.

Change of Placement Because of Disciplinary Removals

34 CFR §300.536; WAC 392-172A-05155

Your child’s removal from his or her current educational placement is a Change of Placement if:

  1. The removal is for more than 10 school days in a row; or,
  2. Your child has been subjected to a series of removals that constitute a pattern because:
  3. The series of removals total more than 10 school days in a school year;
  4. Your child’s behavior is substantially similar to his or her behavior in previous incidents that resulted in the series of removals; and,
  5. There are additional factors considered such as the length of each removal, the total amount of time your child has been removed, and the proximity of the removals to one another.

The school district determines whether a pattern of removals constitutes a change of placement on a case-by-case basis and, if challenged by you, is subject to review through due process and judicial proceedings.

 

Notification

On the date the district makes the decision to make a removal that is a change of placement for your child because of a violation of a code of student conduct, it must notify you of that decision, and provide you with a procedural safeguards notice.

Manifestation Determination

Within 10 school days of any decision to change the placement (see Change of Placement Because of Disciplinary Removals) of your child because of a violation of a code of student conduct, the district, and relevant members of the IEP team, determined by you and the district, must review all relevant information in your child’s file, including his or her IEP, any teacher observations, and any relevant information provided by you to determine:

  1. If the conduct in question was caused by, or had a direct and substantial relationship to, your child’s disability; or,
  2. If the conduct in question was the direct result of the district’s failure to implement your child’s IEP.

If the relevant members of your child’s IEP team, including you, determine that either of those conditions was met, the conduct must be determined to be a manifestation of your child’s disability.

If the group described above determines that the conduct in question was the direct result of the district’s failure to implement the IEP, the district must take immediate action to remedy those deficiencies.

Determination that Behavior Was a Manifestation of the Student’s Disability

When this group, that includes you, determines that the conduct was a manifestation of your child’s disability, the IEP team must either:

  1. Conduct a functional behavioral assessment, unless the district had conducted a functional behavioral assessment before the behavior that resulted in the change of placement occurred, and implement a behavioral intervention plan for your child; or,
  2. If a behavioral intervention plan already has been developed, review the behavioral intervention plan, and modify it, as necessary, to address your child’s behavior.

Except as described below under the sub-heading Special Circumstances, the district must return your child to the placement from which he or she was removed, unless you and the district agree to a change of placement as part of the modification of the behavioral intervention plan.

Special Circumstances

School personnel may remove your child to an interim alternative educational setting (determined by the student’s IEP team), regardless of whether or not your child’s behavior was a manifestation of his or her disability, for up to 45 school days, if he or she:

  1. Carries a weapon (see the definition below) to school or has a weapon at school, on school premises, or at a school function under the jurisdiction of a district;
  2. Knowingly has or uses illegal drugs (see the definition below), or sells or solicits the sale of a controlled substance, (see the definition below), while at school, on school premises, or at a school function under the jurisdiction of a district; or,
  3. Has inflicted serious bodily injury (see the definition below) upon another person while at school, on school premises, or at a school function under the jurisdiction of a district.

 

Definitions

Controlled substance means a drug or other substance identified under schedules I, II, III, IV, or V in section 202(c) of the Controlled Substances Act (21 U.S.C. 812(c)).

Illegal drug means a controlled substance; but does not include a controlled substance that is legally possessed or used under the supervision of a licensed health-care professional or that is legally possessed or used under any other authority under that Act or under any other provision of Federal law.

Serious bodily injury means a bodily injury that involves: a substantial risk of death; extreme physical pain; protracted and obvious disfigurement; or protracted loss or impairment of the function of a bodily member, organ or faculty.

Weapon means a weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than two and one-half inches in length.

Determination of Setting

34 CFR § 300.531; WAC 392-172A-05150

The IEP team must determine the interim alternative educational setting for removals that are Changes of Placement, and removals under the headings Additional Authority and Special Circumstances, above.

Due Process Hearing Procedures for Discipline

34 CFR § 300.532; WAC 392-172A-05160

You may file a due process hearing request if you disagree with:

  1. Any decision regarding placement made under these discipline provisions; or,
  2. The manifestation determination described above.

The district may file a due process hearing request if it believes that maintaining the current placement of your child is substantially likely to result in injury to your child or to others.

See the Due Process Hearing Procedures section for more information on filing a due process hearing request.

 

Authority of Administrative Law Judge (ALJ)

An ALJ must conduct the due process hearing and make a decision. The ALJ may:

  1. Return your child to the placement from which he or she was removed if the ALJ determines that the removal was a violation of the requirements described under the heading Authority of School Personnel, or that your child’s behavior was a manifestation of his or her disability; or,
  2. Order a change of placement of your child to an appropriate interim alternative educational setting, for not more than 45 school days if the ALJ determines that maintaining your child’s current placement is substantially likely to result in injury to your child or to others.

These hearing procedures may be repeated, if the district believes that returning your child to the original placement is substantially likely to result in injury to your child or to others.

Whenever you or the district requests a due process hearing, the request must meet the requirements described under the headings Due Process Hearing Request Procedures and Due Process Hearings, except as follows:

  1. The due process hearing is expedited, and must occur within 20 school days of the date the hearing is requested.  The ALJ must issue a decision within 10 school days after the hearing.
  2. Unless you and the district agree in writing to waive the meeting, or agree to use mediation, a resolution meeting must occur within seven calendar days the date you filed the due process hearing request with OSPI and the district. The hearing may proceed unless the matter has been resolved to the satisfaction of both parties within 15 calendar days of receipt of the due process hearing request.
  3. OSPI has established a 2 business day timeline for production of evidence when you or the district files an expedited due process hearing request (for discipline).

You or the school district may initiate a civil action, contesting the decision in an expedited due process hearing the same way as they contest decisions in non-disciplinary special education due process hearings (see Appeals, above).

 

Placement During Due Process Expedited Hearings

34 CFR §300.533; WAC 392-172A-05165

When you or the district has filed a due process hearing request related to disciplinary matters, unless you and the district agree to a different arrangement, your child must remain in the interim alternative educational setting pending the decision of the hearing officer, or until the expiration of the time period of removal, described under the heading Authority of School Personnel, whichever occurs first.

Protections for Students Not Yet Eligible for Special Education and Related Services

34 CFR §300.534; WAC 392-172A-05170

General

If your child has not been determined eligible for special education and related services, and violates a code of student conduct, you may assert your child’s procedural protections if it is determined that the district had knowledge that your child should have been evaluated and determined eligible for special education services before the behavior that brought about the disciplinary action occurred.

Basis of Knowledge for Disciplinary Matters

A district must be deemed to have knowledge that your child is eligible for special education if, before the behavior that brought about the disciplinary action occurred,:

  1. You expressed concern in writing that your child is in need of special education and related services to supervisory or administrative personnel of the school district, or to a teacher of your child;
  2. You requested an evaluation related to eligibility for special education and related services under Part B of IDEA; or,
  3. Your child’s teacher, or other district personnel, expressed specific concerns about a pattern of behavior demonstrated by your child directly to the district’s director of special education, or to other supervisory personnel of the district.

 

Exception

A district would not be deemed to have such knowledge if:

  1. You did not allow an evaluation of your child or you refused special education services; or,
  2. Your child has been evaluated and determined to not be eligible for special education services.

Conditions That Apply if There is No Basis of Knowledge

If a district does not have knowledge that your child is eligible for special education, prior to taking disciplinary measures against your child, as described above under the sub-headings Basis of Knowledge for Disciplinary Matters and Exception, your child may be subjected to the disciplinary measures that are applied to students without disabilities who engaged in the same types of behaviors.

However, if you or the district requests an evaluation of your child during the time period in which he or she is subjected to disciplinary measures, the evaluation must be conducted in an expedited manner.

Until the evaluation is completed, your child remains in the educational placement determined by school authorities, which can include suspension or expulsion without educational services.

If your child is determined to be eligible for special education services, taking into consideration information from the evaluation conducted by the district, and information provided by you, the district must provide special education and related services to your child and follow the disciplinary requirements described above.

Referral to and Action by Law Enforcement and Judicial Authorities

34 CFR §300.535; WAC 392-172A-05175

Part B of IDEA does not:

  1. Prohibit a school district from reporting a crime committed by your child who is eligible for special education to appropriate authorities; or,
  2. Prevent state law enforcement and judicial authorities from exercising their responsibilities with regard to the application of federal and state law to crimes committed by your child.

Transmittal of Records

If a district reports a crime committed by your child, the district:

  1. Must ensure that copies of  your child’s special education and disciplinary records are transmitted for consideration by the authorities to whom the agency reports the crime; and,
  2. May transmit copies of your child’s special education and disciplinary records only to the extent permitted by FERPA.

Requirements for Unilateral Placement by Parents of Students in Private Schools at Public Expense

CFR § 300.148; WAC 392-172A-04115

If you believe your school district cannot provide a FAPE for your child and you choose to enroll your child in a private school without the district’s agreement, there are specific

steps that you must follow in order to request reimbursement from the district for the private school.

Reimbursement for Private School Placement

If your child previously received special education and related services from a school district, and you choose to enroll your child in a private preschool, elementary school, or secondary school without the consent of or referral by the district, a court or an ALJ may require the district to reimburse you for the cost of that enrollment if the court or ALJ finds that the school district had not made a FAPE available to your child in a timely manner prior to that enrollment and that the private placement is appropriate. The court or an ALJ may find your placement to be appropriate, even if the placement does not meet the state standards that apply to education provided by districts.

Limitation on Reimbursement

The cost of reimbursement as described in the paragraph above may be reduced or denied:

  1. If: (a) At the most recent IEP meeting that you attended prior to your removal of your child from the public school, you did not inform the IEP team that you were rejecting the placement proposed by the district to provide FAPE to your child, including stating your concerns and your intent to enroll your child in a private school at public expense; or (b) At least 10 business days (including any holidays that occur on a business day) prior to your removal of your child from the public school, you did not give written notice to the district of that information;
  2. If, prior to your removal of your child from the public school, the district provided prior written notice to you, of its intent to evaluate your child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but you did not make your child available for the evaluation; or,
  3. Upon a court’s finding that your actions were unreasonable.

However, the cost of reimbursement:

  1. Must not be reduced or denied for failure to provide the notice if:  (a) the school prevented you from providing the notice; (b) you had not received notice of your responsibility to provide the notice described above; or (c) compliance with the requirements above would likely result in physical harm to your child; and,
  2. May, in the discretion of the court or an ALJ, not be reduced or denied for your failure to provide the required notice if:  (a) you are not literate or cannot write in English; or (b) compliance with the above requirement would likely result in serious emotional harm to your child.

 

Resources

If you have questions about the procedural safeguards, please contact your school district or OSPI for additional information:

OSPI
P.O Box 47200
Olympia, Washington 98504
(360)725-6075

speced@k12.wa.us
http://www.k12.wa.us/SpecialEd/default.aspx
http://www.k12.wa.us/SpecialEd/Families/Assistance.aspx

These publicly funded organizations may be able to provide additional information about special education services in Washington State:

Partnerships for Action Voices for Empowerment (PAVE)

6316 So. 12th St.
Tacoma, WA 98465
(800) 5-PARENT (v/tty)

e-mail: pave@wapave.org
Web site: https://wapave.org/

The Office of the Education Ombuds

155 N.E. 100th St. #210
Seattle, WA 98125

(866) 297-2597
e-mail: OEOinfo@gov.wa.gov
Web site: http://www.governor.wa.gov/oeo/