School Shutdown: Pandemic Guidance for Families also Impacted by Disability

A Brief Overview

  • Governor Jay Inslee announced April 6, 2020, that Washington school buildings are closed to regular instruction at least through the end of the school year because of the COVID-19 pandemic.
  • During the shutdown, schools and families are seeking creative ways to help all children learn, said Washington’s Superintendent of Public Instruction, Chris Reykdal, who participated in the April 6 press conference with Gov. Inslee.  “Especially during times of uncertainty,” Reykdal said, “students need our support. They need grace, and structure, and routine. Even though the world may feel like it’s upside down, our students need to know that we will move forward.”
  • PAVE’s program to provide Parent Training and Information (PTI) continues to offer 1:1 support by phone in addition to online learning opportunities. Please refer to our home page at wapave.org to “Get Help” or to check the Calendar for upcoming events. A PTI webinar recorded live March 26, 2020, provides information about the rights of students with disabilities.
  • For questions about delivery of special education during the school building closures, families also can visit the website of the Office of Superintendent of Public Instruction (OSPI), which maintains a page, Special Education Guidance for COVID-19. Ways to support inclusion during the closures and a downloadable spreadsheet of online and offline resources for continuing learning are clickable links on that page.
  • Providing families with access to meals has been a priority for schools. An interactive map on the website of Educational Service District 113 includes information from schools across Washington about where meals are delivered and addresses for where families can pick up free food by “Grab-and-Go.”
  • The U.S. Department of Education has created a website page to address COVID-19. Links on the website, gov/coronavirus, include a Fact Sheet titled, Addressing the Risk of COVID-19 in Schools While Protecting the Civil Rights of Students, issued by the department’s Office for Civil Rights (OCR).
  • For additional resources, see Links to Support Families During the Coronavirus Crisis and Links for Learning at Home During School Closure.

Full Article

With school buildings closed to help slow the spread of the novel coronavirus (COVID-19), families have many questions about how children can access meals, childcare and basic education. Recognizing that too much information can be overwhelming, PAVE provides this article to help families with children impacted by disability understand a few key issues during this challenging time. Included throughout are links to information on official websites that are frequently updated.

Nationally, agencies that provide guidance to schools have been in conversation about the challenge of providing equitable education to all students as learning that respects the requirement for “social distancing” becomes the only option. The U.S. Department of Education is tracking much of that work on its website, gov/coronavirus.

Most schools in Washington resumed services with distance learning on March 30, 2020. Some districts planned a later start because of spring break schedules. Chris Reykdal, Washington’s Superintendent of Public Instruction, issued guidance that all schools within the state offer something in order to engage students in learning.

He emphasized that families and schools should maintain an attitude of creativity and patience and that the goal is not to overwhelm parents and students. The guidance is not a mandate for students, Reykdal said, and the state is not directing schools to grade student work during this period of distance learning. The expectation is that districts “are sending opportunities for families and checking in,” he said in comments quoted in a March 30 broadcast and article from KNKX, a National Public Radio affiliate.

Various federal and state laws protect students with disabilities and their right to a Free Appropriate Public Education (FAPE), regardless of the nature or severity of the disability. How to provide education that is appropriate and equitable when school buildings are closed is a national conversation. In Washington State, the Office of Superintendent of Public Instruction (OSPI) is continuously updating guidance for schools and families on these topics.

An OSPI website page devoted to special education topics during the COVID-19 shutdown includes this guidance: “If the district continues providing education opportunities to students during the closure, this includes provision of special education and related services, too, as part of a comprehensive plan.”

In a March 18, 2020, letter to school staff who support Individualized Education Programs (IEPs), OSPI encouraged IEP reviews and evaluations to continue as possible: “School districts are encouraged to continue to hold IEP and evaluation meetings through distance technology whenever possible, and if agreed upon by parents and school staff are available.”

Meals are a top priority

The Superintendent of Public Instruction, Chris Reykdal, provided information March 19, 2020, in a webinar sponsored by the Washington League of Education Voters. Note: the League of Education Voters offers a comprehensive listing of COVID-19 resources.

Reykdal said that OSPI has prioritized food distribution for students as its most important role during the shutdown. He said some districts deliver food to stops along regular bus routes. Others have food pick-up available in school parking lots. For the most current information about how a district is making meals available for students, families are encouraged to check their local district website or call the district office. OSPI provides a list of districts throughout the state, with direct links to district websites and contact information.

An interactive map on the website of Educational Service District 113 includes information from schools across Washington about where meals are delivered and addresses for where families can pick up free food by “Grab-and-Go.”

Childcare options are difficult to design

Second priority, according to Reykdal, is childcare for parents who rely on outside help so they can work. Families are encouraged to contact local districts for current information about childcare. OSPI encourages only small and limited gatherings of children, so provisions for childcare and early learning have been difficult to organize, Reykdal said. He emphasized that public health is the top concern. “We have to flatten that curve,” he said, referencing a widely shared graphic that shows what may happen if the virus is not slowed by intentional measures.

Note that the Centers for Medicare and Medicaid have relaxed rules in order to give states more flexibility in providing medical and early learning services through remote technologies. The Early Childhood Technical Assistance Center (ECTA) has created a webpage on teleintervention. Topics include training for families learning to navigate technology for online learning and appointments.

Equity is required in education

Thirdly, Secretary Reykdal on March 19 addressed work underway to create new models for distance learning. “Everyone needs to be super patient about this because while districts are preparing to deploy some education, it will look different. And there are serious equity concerns we have to focus on. We expect districts as they launch this to have an equitable opportunity for all students. English language learners need special supports. Our students with disabilities need supports.”

At the April 6, 2020, press conference, Reykdal mentioned that some schools may open on a very limit basis in order to provide services to a few children with significant disabilities. He said OSPI would be consulting with schools throughout the state to develop models for best-practice IEP implementation during the national crisis. “Especially during times of uncertainty,” he said, “students need our support. They need grace, and structure, and routine. Even though the world may feel like it’s upside down, our students need to know that we will move forward.”

PAVE is here to help!

PAVE’s Parent Training and Information (PTI) program continues to provide 1:1 support by phone and offers online training. Please check our calendar of events and follow us on social media.

PTI director Jen Cole addressed some topics related to educational access during a March 19, 2020, podcast hosted by Once Upon a Gene. In addition to providing general information about the rights of students with disabilities, Cole shares her own experience as a parent of an elementary-age student with a disability.

PAVE has added new links on our website to help families navigate these new circumstances. On our homepage, wapave.org, find the large blue button labeled View Links. Clicking on that button will open a list of options. Two new options provide guidance related to the pandemic:

  1. Links for Learning at Home During School Closure: This a resource collection of agencies providing online learning opportunities for various ages.
  2. Links to Support Families During the Coronavirus Crisis: This is a resource collection of agencies that provide information related to the pandemic.

Please note that resources listed are not affiliated with PAVE, and PAVE does not recommend or endorse these programs or services. These lists are not exhaustive and are provided for informational purposes only.

OSPI offers guidance for families

The Office of Superintendent of Public Instruction (OSPI) is the state education agency charged with overseeing and supporting Washington’s 295 public school districts and seven state-tribal education compact schools. As communities respond to the COVID-19 outbreak, OSPI offers a downloadable guide for parents and families.

Included is a section for parents of students in special education. While in session, districts maintain the responsibility to provide a Free Appropriate Public Education (FAPE) to students eligible for special education. “Districts should be communicating with parents and guardians prior to, during, and after a school closure regarding their child’s IEP services,” OSPI states.

Parents may want to consider whether compensatory education or Extended School Year (ESY) services will be needed. The general rights to these services are further described in an article about ESY on PAVE’s website.

Making notes in order to collect informal data about any regression in learning during the shutdown may be important later. OSPI’s resource guide states: “After an extended closure, districts are responsible for reviewing how the closure impacted the delivery of special education and related services to students eligible for special education services.”

OSPI reminds families that schools are not required to provide special education services while they are fully closed to all students.

OSPI addresses issues related to racism

In its guidance, OSPI encourages schools to intentionally and persistently combat stigma through information sharing: “COVID-19 is not at all connected to race, ethnicity, or nationality.”

OSPI advises that bullying, intimidation, or harassment of students based on actual or perceived race, color, national origin, or disability (including the actual disability of being infected with COVID-19 or perception of being infected) may result in a violation of state and federal civil rights laws:

“School districts must take immediate and appropriate action to investigate what occurred when responding to reports of bullying or harassment. If parents and families believe their child has experienced bullying, harassment, or intimidation related to the COVID-19 outbreak, they should contact their school district’s designated civil rights compliance coordinator.”

U.S. Department of Education provides written guidance and a video

The U.S. Department of Education provides a website page to address COVID-19. Links on the website, ed.gov/coronavirus, include a Fact Sheet titled, Addressing the Risk of COVID-19 in Schools While Protecting the Civil Rights of Students, issued by the department’s Office for Civil Rights (OCR):

“Section 504 of the Rehabilitation Act of 1973 prohibits disability discrimination by schools receiving federal financial assistance. Title II of the Americans with Disabilities Act of 1990 prohibits disability discrimination by public entities, including schools. Title VI of the Civil Rights Act of 1964 prohibits race, color, and national origin discrimination by schools receiving federal funds….

“School districts and postsecondary schools have significant latitude and authority to take necessary actions to protect the health, safety, and welfare of students and school staff….As school leaders respond to evolving conditions related to coronavirus, they should be mindful of the requirements of Section 504, Title II, and Title VI, to ensure that all students are able to study and learn in an environment that is safe and free from discrimination.”

On March 21, 2020, the department issued a Supplemental Fact Sheet to clarify that the department does not want special education protections to create barriers to educational delivery options: “We recognize that educational institutions are straining to address the challenges of this national emergency. We also know that educators and parents are striving to provide a sense of normality while seeking ways to ensure that all students have access to meaningful educational opportunities even under these difficult circumstances.

“No one wants to have learning coming to a halt across America due to the COVID-19 outbreak, and the U.S. Department of Education does not want to stand in the way of good faith efforts to educate students on-line. The Department stands ready to offer guidance, technical assistance, and information on any available flexibility, within the confines of the law, to ensure that all students, including students with disabilities, continue receiving excellent education during this difficult time.”

The Department’s Office for Civil Rights (OCR) released a YouTube video March 17, 2020, to describe some ways that OCR is providing technical assistance to schools attempting to offer online learning that is disability accessible. Kenneth L. Marcus, assistant secretary for civil rights within the Department of Education, opens the video by describing federal disability protections:

“Online learning is a powerful tool for educational institutions as long as it is accessible for everyone. Services, programs and activities online must be accessible to persons, including individuals with disabilities, unless equally effective alternate access is provided in another manner.”

Help is available from Parent Training and Information (PTI)

Families who need direct assistance in navigating special education process can request help from PAVE’s Parent Training and Information Center (PTI). PTI is a federally funded program that helps parents, youth, and professionals understand and advocate for individuals with disabilities in the public education system. For direct assistance, click “Get Help” from the home page of PAVE’s website: wapave.org.

PTI’s free services include:

  • Training, information and assistance to help you be the best advocate you can be
  • Navigation support to help you access early intervention, special education, post-secondary planning and related systems in Washington State
  • Information to help you understand how disabilities impact learning and your role as a parent or self-advocate member of an educational team
  • Assistance in locating resources in your local community
  • Training and vocabulary to help you understand concepts such as Free Appropriate Public Education (FAPE), an entitlement for individuals who qualify for special education under the Individuals with Disabilities Education Act (IDEA). 

Behavior and Discipline in Special Education: What to do if the School Calls Because of a Behavior Incident

Continue reading “Behavior and Discipline in Special Education: What to do if the School Calls Because of a Behavior Incident”

Placement in the Least Restrictive Environment (LRE) Encourages Inclusion

A Brief Overview

  • LRE has been an aspect of special education law since 1975, when there was widespread public concern about children with disabilities historically being segregated and denied equitable education.
  • Research shows that children of all abilities learn social skills from one another when they learn side-by-side.
  • Some Washington schools struggle to support access to general education programs and settings for students with disabilities. In 2019, only 56 percent of students with disabilities are included in general education settings for 80-100 percent of the school day.
  • Under federal law, a student is placed in a more restrictive setting when the IEP team agrees that the student needs a different placement for education to be appropriately accessible.
  • Help from a paraeducator might be part of the support services that enable a student to access learning in the Least Restrictive Environment (LRE). Note that a paraeducator is a service, not a placement. Having a 1:1 to help in the classroom does not violate LRE. This topic was included in the resolution of a 2017 Citizen Complaint. Read on for more detail.

Full Article

Some other articles that might be of interest: 

Evaluations Part 2: Next Steps if the School Says ‘No’ to Your Request

Section 504: A Plan for Equity, Access and Accommodations

Schools are responsible to provide a Free Appropriate Public Education (FAPE) for students with disabilities. One of the defining principles of special education law is that students with disabilities have access to general education, with nondisabled peers, to the maximum extent possible. That requirement is called Least Restrictive Environment (LRE).

LRE is a key feature of the Individuals with Disabilities Education Act (IDEA) and has been part of disability rights for students since 1975. PAVE has articles about special education history and key principles of the IDEA. The LRE requirements are a response to widespread public concern about children with disabilities historically being segregated in institutions, separated from peers and removed from neighborhood schools.

A student qualifies for the protections of the IDEA and special education services when a disabling condition severely impacts access to learning and specially designed instruction is needed. An eligible student is entitled to a Free Appropriate Public Education (FAPE), delivered through an Individualized Education Program (IEP).

The IEP includes specially designed instruction and goal monitoring, supplementary aids and services, accommodations and intentionally chosen spaces to meet the student’s needs. Those thoughtfully chosen spaces are a student’s “placement.” A decision about placement is made after programming decisions are made by the IEP team.

Parents can learn this terminology to help in their advocacy. Here’s a statement that incorporates key terms: Placement in the Least Restrictive Environment (LRE) is part of a school district’s responsibility when providing a Free Appropriate Public Education (FAPE) for a student who receives special education services.

General Education is the first LRE option

The general education setting is the first LRE placement option, and how placement is designed is unique to a student’s individualized needs. Research demonstrates that students with disabilities perform better academically and learn social skills when they have access to the general education setting with proper support.

According to the Office of Superintendent of Public Instruction (OSPI), which provides guidance to schools in Washington State, “The body of research consistently supports the positive link between access to core instruction in general education settings and improved outcomes for students with disabilities.

“Inclusion is the belief and practice that all students have the right to meaningfully access academic and social opportunities in general education settings.” 

Still, some Washington schools struggle to provide meaningful access to general education programs and settings. In 2019, the state reports that only 56 percent of students with disabilities are included in general education settings for 80-100 percent of the school day.

The 2019 Washington Legislature passed House Bill 1109 to provide $25 million in 2020-21 to  implement professional development in support of inclusionary practices, with an emphasis on coaching and mentoring. Information about the Inclusionary Practices Professional Development Project is available on OSPI’s website.

What the law says

The IDEA states that schools are required to provide FAPE in the Least Restrictive Environment (LRE) “to the maximum extent appropriate.” Each state is required to implement the IDEA. The U.S. Department of Education maintains a website that shares language directly from the federal law. According to Sec. 300.114:

 “Each public agency must ensure that—

  • “To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are nondisabled; and
  • “Special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.”

LRE decisions follow a 4-part process

OSPI’s website includes information directed toward parents: “Placement decisions are made by your student’s IEP team after the IEP has been developed. The term “placement” in special education does not necessarily mean the precise physical building or location where your student will be educated. Rather, your student’s “placement” refers to the range or continuum of educational settings available in the district to implement her/his IEP and the overall amount of time s/he will spend in the general education setting.”

Selection of an appropriate placement includes 4 considerations:

  1. IEP content (specialized instruction, goals, services, accommodations…)
  2. LRE requirements (least restrictive “to the maximum extent appropriate”)
  3. The likelihood that the placement option provides a reasonably high probability of helping a student attain goals
  4. Consideration of any potentially harmful effects the placement option might have on the student or the quality of services delivered

What if placement in general education isn’t working?

If a student is unable to access learning in an appropriate way (FAPE) because of the nature or severity of the disability, then the IEP team considers alternative placement options. It’s important to note that a student is placed in a more restrictive setting because the student needs a different location within the school, not because it’s more convenient for adults or because it saves the school district money.

According to IDEA, Sec. 300.114, “A State must not use a funding mechanism by which the State distributes funds on the basis of the type of setting in which a child is served that will result in the failure to provide a child with a disability FAPE according to the unique needs of the child, as described in the child’s IEP.”

Placement options are vast

IEP teams consider a wide range of placement options. They may discuss whether there’s a need for a small classroom setting, for example, or home-based instruction. For a child with a behavioral health condition, the team may discuss whether a “day treatment” school staffed with specialists in behavior management might provide the best access to FAPE.

The continuum of placement options includes, but is not limited to:

  • general education classes
  • general education classes with support services and/or modifications
  • a combination of general education and special education classes
  • self-contained special education classes
  • placements outside of a school district
  • home instruction
  • residential care or treatment facilities

School districts are not required to have a continuum available in every school building. A school district, for example, might have a self-contained setting or preschool services in some but not all locations. This gives districts some discretion for choosing a location to serve the placement chosen by an IEP team.

Placement and location are different

Note that the IEP team determines the placement, but the school district has discretion to choose a location to serve the IEP.

For example, an IEP team could determine that a student needs a day treatment/behavioral health-focused school in order to access FAPE—an appropriate education. If the IEP team chooses a Day Treatment placement, then the school district is responsible to find a location to provide that placement. Following this process, a public-school district might pay for transportation and tuition to send a student to a private or out-of-district facility. If a request for a specialized placement is initiated by the family, there are other considerations.

OSPI’s website includes this information:

“… if you are requesting that your student be placed in a private school or residential facility because you believe the district is unable to provide FAPE, then you must make that request through a due process hearing.”

Note: Due Process is part of the “procedural safeguards” available to family participants on the IEP team. PAVE has an article and a webinar about options when family members disagree with the school.

1:1 is a service, not a placement

The IDEA specifies that a more restrictive placement relies on data showing that “the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.”

Supplementary aids and services can include a wide variety of supports. The student might use assistive technology, for example, or teachers could craft unique ways to present the curriculum. The student may get individualized help from an adult.

The LRE requirement means that schools document efforts to enable a student to access general education, however that might be possible. General education access includes classrooms, programs like PE and art, extracurricular activities, recess…. IEP team members can get creative about how to help the student succeed. Some students design their own clever accommodations. Family members and outside therapists or behavioral specialists also contribute ideas.

A common conflict with families and schools is whether a 1:1 paraeducator might enable access to FAPE in general education. Some parents and schools may have conversations about whether a helper might “restrict” a student’s ability to develop independence. Sometimes those conversations lead to misunderstanding about LRE. A 2017 case in Washington addressed the topic and clarified that a 1:1 is a service, not a placement.

In response to a Citizen Complaint filed by parents in the Lake Washington School District, OSPI issued a public report,  with a finding in favor of the family. The parents wanted their child to get help from a 1:1 aide and disagreed with the school that it would “restrict” the student. According to OSPI’s report, parents had requested a 1:1 aide because they wanted the school to provide more support in order to increase the student’s time in general education. School staff on the IEP team said no to the request, citing a belief that a 1:1 aide “is the most restrictive level of service…”

OSPI rejected that argument, stating:

“The District is incorrect in its belief that 1:1 paraeducator support is the most restrictive environment for all students. Paraeducator support is a supplementary aid and service, not a placement option on the continuum of alternative placements….

“Based on the documentation in this complaint, the District did not base its decision to deny the Parent’s request for 1:1 aide support on the Student’s individualized needs. The District erred in failing to properly consider if the Student could participate in a general education setting with the provision of 1:1 aide support.”

LRE does not mean students are on their own

The conversation about what creates “restriction” is complex, and sometimes school staff bring up the concept of “learned helplessness” if they believe that children learn better with less instead of more support. Each conversation and circumstance is unique, but parents can research the topic of learned helplessness to understand various ways that data are interpreted to generate opinions.

Generally, when someone receives help–including education provided by a teacher or a teacher’s aide–that person learns how to do something and eventually models what is taught, with mastery over time. Revoking help before a person is ready to do something independently may create a help”less” situation. A person who cannot perform a task with success and doesn’t get the needed help to get better at the skill may over time give up and become helpless. Some articles on the subject relate to individuals who have been unable to cope or problem-solve independently and therefore “learn” to be helpless.

Parents talking with the school about LRE and appropriate support can do their best to provide accurate and comprehensive information about a student’s unique disability condition and what is needed to meet the student where he/she is ready to learn.

Following are a few additional resources:

An agency called Teaching Exceptional Children Plus features an article by a parent about the value of inclusion in general education. The January 2009 article by Beth L. Sweden is available for download online: Signs of an Inclusive School: A Parent’s Perspective on the Meaning and Value of Authentic Inclusion.

Understood.org offers an article and a video about the benefits of inclusion.

An agency that promotes best-practice strategies for school staff implementing inclusive educational programming is the IRIS Center, a part of Peabody College at Vanderbilt University in Nashville, Tenn.

Some other articles that might be of interest: 

Evaluations Part 2: Next Steps if the School Says ‘No’ to Your Request

Section 504: A Plan for Equity, Access and Accommodations

OSPI Provides Guidance for Families

The Office of Superintendent of Public Instruction (OSPI) is the agency responsible for oversight of all public schools and non-public agencies in Washington State. In addition to supporting schools, OSPI provides resources and support directed toward students and families.

OSPI upgraded its website (k12.wa.us) in July 2019. The home page provides news about current events, a calendar, and an option for Parents and Families to seek resources specific to their needs and concerns.

The Parents and Families section of the website is divided into three categories:

  • Learning, Teaching, & Testing: Information about graduation requirements, learning standards, testing and more
  • Data & Reports: Access to data specific to a school or district, financial reports and guidance about the Washington School Improvement Framework
  • Student & Family Supports: Special Education guidance and information about student Civil Rights, how to file a complaint, health and safety, English Language Proficiency (ELP) and more

Under Guidance for Families: Special Education in Washington State, the website provides this statement:

“The OSPI Office of Special Education aspires to ensure students with disabilities receive Free and Appropriate Public Education (FAPE) as required by the Individuals with Disabilities Education Act (IDEA). About 14 percent of students overall receive special education services in the state of Washington.”

Linkages through the Special Education section of the website provide information on a range of topics. Here are a few examples:

  • How Special Education Works
  • Laws and Procedures
  • Parent and Student Rights (Procedural Safeguards)
  • Making a Referral for Special Education
  • Individualized Education Programs (IEPs)
  • Placement Decisions and the Least Restrictive Environment (LRE)
  • Transition (Ages 16-21)
  • Behavior and Discipline
  • Disagreements and Disputes related to Special Education
  • Special Education Advisory Council (SEAC)

Each section includes state guidance under the rule of federal law (the IDEA) and provides linkages to other resources within and beyond OSPI.

A Need Assistance? link on the Special Education page provides contact information for the Special Education Parent Liaison, available as a resource to parents in non-legal special education matters. According the OSPI’s website, the liaison “serves as a neutral and independent advocate for a fair process.”

“The Special Education Parent Liaison does not advocate on behalf of any one party. Rather, the Parent Liaison exists to address individual concerns about bureaucratic systems and act a guide for anyone attempting to understand and navigate various special education or school district processes and procedures.”

To contact Scott Raub, the Special Education Parent Liaison, call 360-725-6075 or submit a message through OSPI’s Contact Us web page.

 

Washington’s 2019 Law Adjusts Graduation Requirements

The Washington State Legislature passed a law in 2019 that changes graduation requirements and may impact students who receive special education services. House Bill (HB) 1599 changes the rules about which tests students must pass in order to graduate and how they can earn a diploma.  

The new law removes the direct link between statewide assessments and graduation requirements by discontinuing the Certificate of Academic Achievement (CAA) after the graduating class of 2019 and the Certificate of Individual Achievement (CIA) after the graduating class of 2021.

Students in the class of 2020 and beyond will need to demonstrate career and college readiness through one of eight graduation pathway options that align with the High School and Beyond Plan, a requirement for all Washington students. The High School and Beyond Plan (HSBP) is expanded by the new law, and districts will be required to provide an electronic HSBP platform available to students beginning in 2020–21.

After-high-school plans are a critical aspect of the Transition Plan written into a student’s individualized Education Program (IEP) by age 16, and the expansion of the HSBP provides for improved alignment between these future-planning tools.

The Office of Superintendent of Public Instruction (OSPI) is the agency responsible for oversight of all public schools and non-public agencies in Washington State. OSPI maintains a website page with information about graduation requirements. Visit OSPI’s Graduation Requirements page for compete and updated material. The page includes a link to Frequently Asked Questions (FAQ).

This article provides a brief overview of the new requirements, and parents can take this list to an IEP meeting to ask questions and create a plan to ensure graduation success. For more general information about planning for the transition from high school, take a look at a Recorded Webinar on PAVE’s website and/or read an article called Tips to Make a Well-Informed Transition into Life After High School.

Class of 2019, Take Note!

Some students in the Classes of 2014 through 2019 may be eligible to have their assessment graduation requirements waived in English language arts (ELA), math, or both. The Expedited Assessment Appeals Waiver requires that the student show that he/she has the skills and knowledge to meet high school standards and possesses the skills necessary to successfully achieve college or career goals established in the High School and Beyond Plan.

Students may use one of the following to meet the assessment graduation requirements:

  • Graduation standard on Smarter Balanced or WA-AIM (ELA and math)
  • Passing a dual credit course
  • Passing a Bridge to College course
  • ACT or SAT score
  • Advanced Placement score
  • Passing Locally Administered Assessment (COE-Local)
  • Grades Comparison
  • CIA cut-score on Smarter Balanced (“L2 Basic”) (for some students with disabilities)
  • Locally Developed Assessment (LDA) (for some students with disabilities)
  • Off-grade assessment (for some students with disabilities)
  • Expedited Assessment Appeals Waiver

Further information about the waiver is provided in an OSPI Bulletin.

Class of 2020: What will change?

Students will need to demonstrate readiness for post-secondary career or college via one or more pathways. Students in the Class of 2020 will also have access to a waiver. The pathways available to the Class of 2020 are:

  • Graduation standard on Smarter Balanced or WA-AIM (ELA and math)
  • Dual credit
  • Bridge to College
  • C+ in AP, IB, or Cambridge class or achieving certain score on AP, IB, or Cambridge tests
  • ACT or SAT score
  • Also, if completed during the 2018-19 school year: Locally Administered Assessment (COE-Local) This option is not available in 2019-20.

Students must demonstrate skills via a pathway for ELA and math. The above options can be used interchangeably to meet both requirements.

Response to Intervention (RTI) – Support for Struggling Students

Brief overview

  • Students struggle in school for different reasons.
  • RTI is an acceptable way of identifying students with learning disabilities.
  • RTI isn’t a specific program or type of teaching.
  • RTI works on a tier system with three levels of intervention.

Full Article

Students struggle in school for different reasons. Response to Intervention (RTI)  can help by combining high quality, culturally responsive instructions with assessments and interventions that are proven to work by evidence from research.

RTI was originally recognized in the 1970s as a system for helping students with potential learning problems early, instead of waiting until they fail. With the reauthorization of the Individuals with Disabilities Education Act (IDEA) in 2004, RTI was noted as an acceptable way to identify students with learning disabilities. RTI can help students who haven’t yet been identified as eligible for special education or those who struggle but don’t qualify for special education services.

At any time during the RTI process, parents or teachers can request an evaluation for special education services.  The evaluation can determine whether a student qualifies for an Individualized Education Program (IEP) or accommodations through a Section 504 Plan. RTI does not replace a school’s responsibility to evaluate students who might qualify for special education services. See PAVE’s article on Child Find, a mandate of the Individuals with Disabilities Education Act (IDEA).

RTI’s goal is for schools to intervene before a student falls too far behind. RTI is not a specific program or type of teaching, but rather a proactive way to check in with a student to see how things are going. Data help school staff decide which types of targeted teaching would work best for the student. If a student’s progress is slow or stagnant, then teachers adjust based on the student’s needs. 

RTI has three levels, or tiers, for intervention:

  • In the general education classroom
  • In a special education classroom, resource room, or small group
  • For an individual student

RTI works best when parents are involved

Parents can monitor their child’s progress and participate in the process. Parents can talk to the school about which instructions or reinforcements are working and boost the benefit by being consistent with the same strategies at home.

As military families move from one location to another, they may notice that each school uses different techniques to implement RTI programs.  Schools will format their programs to best fit the needs of their students by using a variety of tools to improve learning for all students. Keeping up with what’s happening at school might be challenging but can help the student find success.

RTI is part of a Multi-Tiered System of Supports (MTSS) framework.  MTSS provides a method for intervention in academic and non-academic areas, including Social Emotional Learning or behavior support. MTSS is used to support adult students and professionals as well. In this video, a researcher from the American Institutes for Research, Rebecca Zumeta Edmonds, Ph.D., discusses differences between MTSS and RTI.

PAVE has an article that describes MTSS and how it can provide a larger framework for Positive Behavior Interventions and Supports (PBIS), when a child’s behavior becomes a barrier to learning.

For more information on RTI, MTSS, and PBIS:

The Three RTI Tiers

Center on Response to Intervention

Response to Intervention (RTI)

 What is the Difference Between RTI and MTSS?

MTSS: What You Need to Know

Positive Behavioral Interventions & Supports (PBIS) in Schools

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/

Surrogate Parents in Education

The role of the surrogate parent in education is to assure that a student in special education receives a free appropriate public education.

The surrogate parent has the same rights and interests of the parent as defined through both state and federal regulations.  There are regulations governing the identification, qualifications, and appointment of surrogate parents.  The information in this packet outlines those regulations and how they are implemented in WashingtonState.  It is based on the Individuals with Disabilities Education Act (IDEA) and the Washington Administrative Code (WAC) 392-172.

The following definitions are important in the discussion of surrogate parents and their role relating to special education:

Adult Student is a special education student who is eighteen years of age or older and who has not been judged incapacitated by a court of law [WAC 392-172-035 (4)].

Special Education Student is any student, enrolled in school or not, (i) who has a disability, (ii) whose disability adversely affects his/her educational performance, (iii) and who is in need of specially designed instruction [WAC 392-172-035 (2)].

Parent is a natural or adoptive parent, a guardian, an adult person acting as a parent, or a surrogate parent.  The term includes a person acting in the place of a parent, such as a grandparent or stepparent with whom the student lives, as well as persons who are legally responsible for the student’s welfare.  The state cannot be a surrogate parent, if the student is a ward of the state.  A foster parent is considered the parent if he/she has been appointed as the surrogate parent [WAC 392-172-035 (5)].

Permanent Ward of the Court is a student, whose parents have had their parental rights terminated in court.

Surrogate Parent is an individual appointed by the school district or other public agency providing special education to a non-adult student to assure that his/her rights are protected, when the parent cannot be identified, cannot be found or parental rights have been terminated.

WHICH STUDENTS NEED SURROGATE PARENTS?

 

All non-adult special education students have the right to be represented by a parent or guardian throughout the decision-making process.  If a parent or legal guardian is not available, cannot be found, or parental rights have been terminated, then the school district, or public agency providing special education, must appoint a surrogate parent.  More specifically, the district or agency must assign a surrogate parent when:

 

The student needs, or is suspected of needing, special education and related services because of his/her disability; and

The student is between the ages of 3 and 18; and

The student is without a parent to represent him/her when decisions are being made regarding identification, evaluation, program, and placement.  Students who fall into any one or more of the following categories are considered to be without parent representation:

Students whose parents are unknown or cannot be identified;

Students whose parents are unavailable or cannot be located;

Students who are permanent wards of the court.

Adult students (those who are ages 18 – 21) must be legally declared incompetent before a surrogate parent can be assigned to them by the school district.  If a student is not legally declared incompetent, (s)he may represent him/herself or request surrogate parent representation.

Students who need surrogate parents generally live in one of the following places:

Foster homes

Nursing homes

Public or private group homes

State hospitals

Correctional facilities

Most of the students with disabilities who live in one of these five types of places attend public school programs within their local communities.  Some, however, attend school in the group home, or on the state hospital or correctional facility grounds.  Either way, any special education student who meets the criteria stated above must be assigned a surrogate parent.

What does it mean to say that the student’s parent is unknown or cannot be identified?

A student’s parents are considered to be unknown if their identity cannot be determined from a thorough review of the student’s educational and other agency records.

A student with a disability who is not represented by a parent, guardian, or someone acting as a parent must be assigned a surrogate parent for all decision-making within special education.  Because the regulations specifically prohibit the State or an employee of a state agency from qualifying as a parent, students for whom the State or a state agency is acting as a guardian will require the assignment of a surrogate parent.  If a private individual, such as a neighbor or friend with explicit written approval of the student’s parent or guardian, is caring for the student, the appointment of a surrogate parent would not be required.

The term guardian refers to private individuals who have been given the legal custody of a child by an appropriate court.  If the individual has been granted full guardianship (s)he is considered to be the student’s parent and a surrogate parent appointment is not required.  In some cases, a state agency may have full guardianship of a student with a disability.  In this case, the student requires the assignment of a surrogate parent.  If the court has assigned only limited guardianship of a student with a disability to an individual or state agency, it will be necessary to clarify in writing who will be acting on the student’s behalf.  The guardianship papers should state exactly what is covered by the guardianship.

In cases where the administrator of an institution is also the legal guardian for a student, a surrogate parent must be appointed.  No student can be represented in the educational decision-making process by an employee of any public agency involved in the education or care of that student due to a possible conflict of interest.

Foster parents are considered as “a person acting as a parent” and therefore can serve as surrogate parents.  Because they are only reimbursed for their services, they are not considered employees of the state or placement agency.  They need to be appointed as the surrogate parent by the school district, unless they are the legal guardians of the student.

What does it mean to say the student’s parents are unavailable?

A student’s parents are considered to be unavailable if they cannot be located even after the school district or educational agency has exerted a reasonable effort to locate them.  A reasonable effort includes some combination of the following:  documented telephone calls, letters, certified letters with return receipts, visits to the parents’ last know address, or agency records that clearly indicate the enactment of a court order which terminates parental rights.

A certified letter from the school district should include a description of parents’ rights in the special education decision-making process and a form allowing the parent to state his/her availability to represent the interests of the student.  The certified letter is one appropriate method for this process.  It should be used together with other methods mentioned previously, because some people will not sign for a certified letter.

A parent is also considered to be unavailable if (s)he is unable to participate in the student’s program for reasons such as distance or incarceration.  If the parent lives outside of the school district where the student attends program (e.g. the student who is placed in a residential treatment center and parental rights have not been terminated), the school or educational agency should attempt to contact the parents with the help of their home school district to determine their availability.  If these parents choose to surrender their education rights and responsibilities to a surrogate parent, such authorization should be in writing.  If a parent is too ill to participate at a meeting, either in person or by phone, that parent has the option of giving another individual the ability to act for them.  This should be done in writing.

An uncooperative or uninvolved parent is not the same as an unavailable one.  A surrogate parent cannot be assigned to a student whose parents have chosen not to participate in his/her educational program unless the school or educational agency can document that the parents are, in fact, unavailable or that their parental rights have been terminated.  It is also necessary for the school or educational agency to show that they have made the required attempts to involve the parents and they have chosen to be uncooperative or uninvolved.

When is the student a permanent ward of the court?

A student is considered a permanent ward of the court if parental rights have been terminated through a judicial process.  This judicial process is called a dependency hearing.  Parental rights are terminated for a number of reasons, as stated in RCW 13.34.  Once parental rights have been terminated and the student becomes a permanent ward of the court, a surrogate parent must be appointed by the school or educational agency.

What is the duty of the school or educational agency?

It is the responsibility of the local education agency to identify students who are in need of a surrogate parent appointment.  Assistance in identifying students in need of surrogate parents can also be sought from the care facility or agency responsible for the student, such as the Department of Social and Health Services, the Department of Corrections, or the Division of Mental Health

WHO CAN BE A SURROGATE PARENT?

A person, recruited as a surrogate parent, must have the following qualifications:

Be an adult 18 or over;

Have no vested interest that conflicts with the student’s educational interests;

Be committed to learning about the child’s educational needs and about the special education system in which the child is enrolled; and

Have knowledge, special training, and skills to insure adequate representation of the child.

Currently, the State of Washington states that the following individuals are considered the parent and do not need to be appointed as a surrogate parent:  natural or adoptive parent, guardian or an adult acting as a parent.  It also clearly notes that a foster parent can be included if (s)he is appointed as the surrogate parent.  [WAC 392-172A-035(5)]  It is important that the foster parent tells the school or educational agency if (s)he is the guardian of the student or needs to be appointed as the surrogate parent.

Depending on the child’s status and other circumstances in his/her life, an eligible child is assigned a surrogate parent from one of the following three categories of people:

Foster Parents – If the child lives in a foster home and you are his/her foster parent, you are eligible to be appointed as his/her educational surrogate parent also, as long as you meet the qualifications and would like to serve in this role.  You should be appointed as the surrogate parent in order to have the rights and responsibilities involved.

Volunteers – For children who do not live in foster homes, volunteers are recruited from the community in which the child lives.  If you are a volunteer serving as a surrogate parent and you meet the above qualifications, you will most likely be assigned to a child who lives in a nursing home, group home, state hospital or correctional facility.

  1. Parents, Legal Guardians, or other family members  – Some children with disabilities are permanent wards of the court but have parents or guardians and other family members who are able and would like to be involved in their special education programs.  In these cases, the child’s parents or guardians or other family members may be assigned as his/her surrogate parents.  Once again, if you fit into this category, you must meet the qualifications and you should be appointed as your child’s surrogate parent.

In addition, a surrogate parent cannot be an employee of the Office of the Superintendent of Public Instruction, a local education agency, nor a public institution involved in the education of the child or any public agency involved with the care of the child.  For example, a special education teacher cannot be a surrogate parent for a student in his/her classroom.  There could be concern that the school district (the teacher’s employer) may recommend one thing for the student and the teacher may feel the student needs something else.  If this happened, the surrogate parent (teacher) might feel obligated to accept the district’s recommendation.  A special education teacher could be a surrogate parent for a child in another district, but the potential conflict of interest issue must be carefully discussed beforehand.

For the same reason, surrogate parents cannot be employees of the state or any local government, or public educational or human resources agency responsible for or involved in the education or care of the child.  For example, DSHS caseworkers and juvenile justice officers cannot be surrogate parents since they are governmental employees.  However, if surrogate parents are paid for their services, they are not to be considered employees of the state or other agency solely because they are paid by the agency to serve as surrogate parents.

Other considerations for matching a surrogate parent with a student include:

A relative who is familiar with the student’s background and needs, and who is willing to complete the required training, should be given the option of being appointed the student’s surrogate parent.

The surrogate parent must be committed to becoming thoroughly acquainted with the student and his/her educational needs.  In other words, in addition to the required knowledge of special education, the surrogate parent must be willing to devote sufficient time to adequately represent the student.  Most surrogate parents will not have more than one or two students assigned to them to allow adequate time for appropriate representation.  By agreeing to be a surrogate parent, you are not obligated to accept every assignment requested of you.

The surrogate parent should be of the same racial, cultural, and linguistic background as the student.  The surrogate parent should be able to communicate with the student in his/her primary language and share some of the same cultural values in order to fully understand the student.

The surrogate parent should reside in the same geographical area as the student.  Obviously, the surrogate parent needs to be accessible to both the student and the school; geographic proximity will minimize the problem of accessibility.

SURROGATE PARENT TRAINING

According to IDEA and WAC 392-172-308(3) (b), the school district shall assure that a person appointed as a surrogate parent has knowledge and skills that assure adequate representation of the student.  Since there are no other guidelines, procedures for “…assuring that the person chosen as surrogate have adequate knowledge and skills…” vary widely.  In general, surrogate parents should be familiar with the State and Federal special education regulations, rights and responsibilities of surrogate parents, the educational decision-making process, and procedural safeguards.  Surrogate parents should also be familiar with the nature of the student’s disability.

Some volunteers may not need to participate in a formal training process.  Comparable experience in lieu of training may include one of the following:

Valid State Board of Education certification in the area of special education;

Completion of at least six (6) hours of college level courses in special education within the last three (3) years;

Attendance at a minimum of five (5) hours of parent training/inservice training workshops on special education and parents’ rights within the last three (3) years;

Parent of a student who has received special education services for at least one (1) year; and/or

Other appropriate training or experiences as determined on an individual basis.

Whether formally trained or not, appointed surrogate parents may also require one-to-one information/assistance as they learn about their assigned students and the educational programs being provided for them.  This assistance is important since no surrogate parent can be expected to know all details about special education and the many different disabilities that could affect students.  The student’s teacher, school principal, special education administrator, and Educational Service District (ESD) special education personnel can all be resources in this regard.

Currently, classes are available from Washington PAVE, which would satisfy the training requirements to become a surrogate parent.

RIGHTS AND RESPONSIBILITIES OF A SURROGATE PARENT

Being a surrogate parent involves many rights and responsibilities as far as the student’s special education needs and services are concerned.  However, unless you are also the child’s foster parents, you only have responsibility for representing the child when decisions about his/her educational program are being made.  You do not have a commitment for the child’s care and financial support.

Surrogate Parent Rights

A surrogate represents the student in all matters relating to the identification, evaluation, educational placement of the student and the provision of a Free, Appropriate, Public Education (FAPE) to the student [WAC 392-172-308(5)].

By law, you have the same rights that biological parents or guardians have in the educational process, including the right:

To a free appropriate public education for your student in accordance with an individualized education program (IEP);

To inspect and have a copy of all records with regard to your student’s educational program;

To request changes if inaccurate or inappropriate information is contained in your student’s records;

To appropriate and nondiscriminatory educational assessment for your student in his/her primary language;

To be fully informed about the evaluation procedures, tests and all results;

To give informed consent for the initial evaluation and/or re-evaluation of your student;

To seek an independent educational evaluation of your student if you think the school’s evaluation methods and/or results were inappropriate;

To participate fully in the planning of your student’s individualized education program;

To know about the special education services available for your student;

To have your student educated with his/her non-disabled peers, if appropriate;

To question the appropriateness of your student’s educational program;

To decide if a proposed special education placement is appropriate for your student;

To talk with the people involved in your student’s education and to receive regular progress reports and other communications routinely given to parents;

To give informed consent before any major change is made in your student’s educational placement;

To call for a parent/school conference, new evaluation, or planning meeting whenever necessary;

To have people attend any school meeting with you and to ask your student to attend, if appropriate;

To be notified in writing when:

Your student has been referred for an evaluation;

Your student will be tested;

A change in placement is being considered;

A change in your student’s educational plan is being considered; or

An educational planning meeting is called.

To be informed of and initiate due process procedures; and

To participate as an equal partner with school personnel in planning your student’s individualized education program.

Remember, these are the same rights that all parents have in the special education process.  If you ever hear the term “parents’ rights”, this also refers to “surrogate parents’ rights”.  In the long run, the real goal is student’s rights.

Surrogate Parent Responsibilities

As a surrogate parent, you have the responsibility to act on behalf of your child to make sure that (s)/he receives an education designed specifically to meet his/her needs and abilities.  In order to do this, you will:

Know your rights as a surrogate parent and be prepared to participate actively;

Review the last evaluation done on your child and request copies of the results.  Make sure the evaluation is current and complete.  Ask for an explanation of the results if anything is unclear.

Review your child’s last individualized education program and prepare to participate in developing his/her next one.  Investigate other school programs and placements, if appropriate.

Attend all parent/school meetings and conferences to plan and/or review your child’s educational program.  Make specific requests for services if necessary.  Set up a regular means for communication with the school.  If appropriate, invite your caseworker to attend these meetings with you.  If he/she doesn’t attend, communicate the results of the meetings to him/her.

Make a decision regarding consent for your child’s placement into an education program.  Approve or disapprove the program that you have helped to develop.

Working for Change

If you feel that your child’s educational program is not appropriate or is not being followed, you may need to work for change through one or more of the following procedures:

Talk with your child’s teachers, therapists, principal, etc.  Try to resolve any problems at this level first.

Request that another educational planning meeting be held to discuss specific issues and concerns.  Look over other school programs and services, if necessary.

Write a letter to request a meeting with the director of special education for your school district.

Initiate complaint, mediation or due process fair hearing procedures.

Confidentiality

Under the regulations of the Family Education Rights and Privacy Act (FERPA), as well as IDEA and WACs, it is your responsibility to keep confidential any information that you gather from your child’s records and from talking with teachers and others involved in his/her education.  Because you will be asked to share some of this information with school and agency people, you must be able to use discretion and report only the information that is pertinent to the planning and implementation of your child’s educational program.  Surrogate parents are not given access to all of the personally identifiable data about the child’s family or background.

If your choose not to continue as a surrogate parent or if your child is no longer eligible for a surrogate parent, you will be asked to return copies of the educational records and all other written information that you have collected while you were assigned.

LIMITATIONS OF THE SURROGATE PARENT

The surrogate parent has no authority or responsibility for the care, maintenance, or financial support of the student.  While the surrogate parent may participate with the an agency in the discussion of appropriate foster or group home placement for the student, the surrogate parent has no authority or responsibility to approve a non-educational placement in such a home.  The surrogate parent, as appointed by the school district, only makes decisions regarding the provision of a free appropriate program for the student.

The role of a surrogate parent may be somewhat different when assigned to a student with a disability who is between the ages of 18 and 21.  According to IDEA, all students with disabilities between the ages of 3 and 21 must be afforded all of the procedural safeguards that are spelled out in the regulations, including the assignment of a surrogate parent if they meet the eligibility criteria.  Students age 18 and over who have been determined incompetent by a court of law, continue to require the assignment of a surrogate parent for educational decision-making purposes.

LIABILITY

There is currently no guarantee that attempts will never be made to hold surrogate parents liable for their actions.  However, it is highly unlikely that they could be held liable for any decisions about the student that were made in good faith.  Therefore, their only liability would be for gross misconduct or willful negligence, which is improbable as long as they can demonstrate their “knowledge and skills” and are “acting in good faith”.

Likewise, school districts who, “in good faith”, implement a sound surrogate parent program are unlikely to be held liable for their actions in this regard.  There is far greater liability in either failure to implement a program or failure to assign a surrogate parent to an eligible student when needed.

QUESTIONS AND ANSWERS

Why can’t the school or public care facility take care of being the surrogate parent?

In the past, the school and the public agency legally responsible for the child made the educational decision about students in special education.  There were two main problems with this:  1) neither party could be completely objective in representing the child’s needs; and 2) neither party could spend time learning all that was necessary about one child.  A surrogate parent is not bound by either of these constraints.

Must a foster parent become the surrogate parent for a special education student in his/her care?

As previously stated, unless the foster parent is the legal guardian of the student, then he/she would have to be appointed as the surrogate parent in order to make educational decisions.  In this situation the foster parent must meet all the qualifications ser forth for all surrogate parents.

However, not every foster parent must be the surrogate parent for his/her child in special education.  The foster parent may not want to be the surrogate parent because of time constraints, short-term placement, or many other reasons.  In these situations, the school district must appoint a surrogate parent.

How much time does it take to be a surrogate parent?

By becoming a surrogate parent, you are assuming responsibility for giving parent input at all educational planning meetings and for monitoring your child’s program.  At a minimum, each year this includes attending an annual IEP review meeting and 2 or 3 parent/teacher meetings.  It may also include meetings with social workers and others at the child’s place of residence.  Although the amount of time you spend will vary with the needs of your particular child, the job usually involves a minimum of 5 meetings and visits to the school and residence each year.

Do I have a choice about the child to whom I’m assigned?

Yes.  You may accept or refuse an assignment to a child with a special disability, of a certain age group, etc.  For example, you may already have a good understanding about a certain disability, have been involved with a school and its operation, or have background information that would be of benefit when serving as a surrogate parent for a particular child but not another.

What if a student over the age of 18 needs a surrogate parent?

Students between the ages of 18 and 21 who have been declared incompetent in court are assigned a surrogate parent who has all of the rights and responsibilities of any surrogate parent.  For students who haven’t been declared incompetent, the services of a surrogate parent “advisor” could be offered – someone who will help make decisions but the final say rests with the student.  If you are serving as an “advisor”, remember that the student also has the right to control access to his/her own educational records.

Who has the final say about my child’s educational program?  What is the role of the child’s caseworker, hospital superintendent, etc?

As a surrogate parent, you are the person who has been officially designated to work with the school in planning and monitoring your child’s school program.  Although caseworkers, other public agency social workers, care facility personnel and others will (and should) continue to be involved with your child’s special education program, it is your role to assure that the student receives an appropriate program.

What should/shouldn’t I sign?

As a surrogate parent, you will sign all forms relating to your child’s special education.  This will include evaluation, IEP, and placement forms.  You should not sign for anything for which you could be held liable such as permission for driver’s education, school fees, field trips, etc.

How often can I visit my child’s classroom?

As often as is necessary.  You may need to visit your child’s classroom several times in order to get to know him/her and start to develop a profile of his/her needs and abilities.  You will also need to visit during the year in order to monitor how the program is working.  You should feel free to visit at other times as well.  Make sure that you go through the necessary steps to set up each visit by contacting the teacher or principal.  (Check to see what the procedure is in your child’s school.)  If you would like to talk with any therapists that work with your child, make separate appointments to see them as well.

Is it okay to get more involved with my child than just participating in his/her school program?

Some volunteer surrogate parents choose to become more involved:  by visiting the child at home, taking the child on outings, etc.  This is a decision that needs to be made jointly by you and the personnel at your child’s home, who may or may not feel that this additional involvement would be beneficial to the child.  Remember though, you can be a very effective surrogate parent even if you choose not to become involved outside the area of education.  As a surrogate parent, your only obligation to the child is in the area of special education.

Can I be held liable if I make a wrong decision about my child?

Currently, there is no legislation that specifically protects surrogate parents from being held liable.  However, you have been appointed as a surrogate parent under the guidelines of federal and state law.  Unless your actions are grossly negligent, it is highly unlikely that you could be held liable for any decisions that you make in the best interests of your child.

How much do I need to know about my child’s disability?  How can I learn more about it?

You can be a very effective surrogate without knowing a lot about your child’s disability, provided that you know a lot about your child.  However, it may be helpful for you to learn about some of the special needs that children with certain disabilities often have.  Ask your child’s teacher for materials or contact the appropriate state and national organization.  The internet is often a good source of information, especially the sites maintained by disability support groups.  Your public library may also be useful.  NICHCY (the NationalInformationCenter for Children and Youth with Disabilities) has packets of written information about disabilities that have been written especially for parents.

Will the school be evaluating my activities as a surrogate parent?

Schools are responsible for monitoring the activities of each surrogate parent to make sure he/she is doing his/her job.  They may do this in written form or verbally by talking with teachers and others who have been in contact with you.  The school will use this information to help decide whether or not to reassign you each year.

What if I have a question after I’m assigned as a surrogate parent?  Whom do I ask?

Start by asking your child’s teacher, therapist, principal, etc.  They can probably answer most of your questions.  You can also contact the Parent Training Project of Washington PAVE, the federally funded parent training and information center for the state of Washington.

What if the school terminates my surrogate parent assignment?

There are several reasons that the school may discontinue your assignment:

the child changes schools;

the child reaches age 18;

the child’s status changes and he/she is no longer eligible for a surrogate parent; or

the school feels that you have not done a adequate job as a surrogate parent.

If you feel that your assignment was unfairly discontinued, you may file a complaint with the Office of the Superintendent of Public Instruction, Special Education Operations.  Call PAVE if you need more information.

As a volunteer surrogate parent, what is my role at my child’s place of residence?

As a surrogate parent you legally have “control” only over educational decisions about your child.  You do not have the authority to make decisions about services that your child receives at his/her residence.  It is important, however, to talk with all persons involved with your child, especially in his/her home environment, in order to get a full picture of the child’s strengths and needs.  Make sure that social workers and others at the residence understand your role as a surrogate parent and strive to attain their cooperation in securing an appropriate educational program for your child.

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.

What are Procedural Safeguards?

The Individuals with Disabilities Education Act (IDEA) requires schools to provide the parents/guardians of a student who is eligible for or referred for special education with a notice containing a full explanation of the rights available to them.

School districts must provide parents a copy of the Procedural Safeguards:

  • At least once every school year.
  • In the parents native language.
  • When you or others, including the district, request that your student be evaluated to determine eligibility for special education services. This process is called a referral.
  • The first time you file a citizen complaint in a school year.
  • The first time you request a due process hearing in a school year.
  • When a decision is made to remove a student for more than ten school days in a year as part of a disciplinary action, and that removal constitutes a change of placement.
  • Upon request.

This 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 participant understands that this is information to educate them not to provide them with legal representation