Table of Contents
Office of Special Education Programs'
Overheads from OSEP Regional Trainings
on the IDEA '97 Regulations
Overheads for
Subpart E (Procedural Safeguards: Overheads 1 - 34)
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NICHCY
National Information Center for Children and Youth with Disabilities
P.O. Box 1492
Washington, DC 20013
1-800-695-0285 (Voice/TTY)
(202) 884-8200 (Voice/TTY)
E-mail: nichcy@aed.org
URL: http://www.nichcy.org
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OH Subpart E - 1
Individuals with Disabilities Education Act
Subpart E
OH Subpart E - 2
General Responsibility of Public Agencies; Definitions (§300.500)
The following changes to the NPRM are reflected in the final regulations:
- A provision regarding revocation of consent was added. It provides:
"If a parent revokes consent, that revocation is not
retroactive (i.e., it does not negate an action that has
occurred after the consent was given and before the
consent was revoked)."
OH Subpart E - 3
Why was this provision added?
- Parents cannot be forced to consent to decisions related to their child's education.
- However, it would be impractical to allow a parent to retroactively apply a revocation of consent where parental consent is required.
- Thus, once a parent consents to an educational decision concerning their child, be it an evaluation or provision of service(s), any revocation of their consent once the action to which they initially consented has been carried out will not affect the validity of the action.
- Since the non-retroactivity of a parent's revocation of consent is based on the Department's interpretation of the statute, and is important to make clear to all parties, it was set forth in the regulation itself.
OH Subpart E - 4
- The following sentence was deleted from the definition of "evaluation"-
"The term means procedures used selectively with an individual child and does not include basic tests administered to or procedures used with all children in a school, grade, or class..."
Why was this sentence deleted?
- The statutory changes to the evaluation procedures make clear that an "evaluation" will include review of existing data, which may include results on tests or other procedures that are based on the general curriculum and may be used with all children in a grade, school, or class.
OH Subpart E - 5
- The definition of "evaluation" in the NPRM had not been updated to recognize this change in the statute.
- Therefore, a change was made to eliminate the last sentence in the definition of "evaluation" so that it does not imply that an evaluation may not include a review of a child's performance on a test or procedure used with all children in a grade, school, or class.
- This change does not mean that a public agency must obtain parental consent before administering a test used with all children unless otherwise required.
OH Subpart E - 6
Other Clarifications:
- To distinguish an initial evaluation from a reevaluation, an initial evaluation of a child is the first completed assessment of a child to determine if he or she has a disability under IDEA, and the nature and extent of special education and related services required.
- Once a child has been fully evaluated the first time in a State, a decision has been rendered that a child is eligible under IDEA, and the required services have been determined, any subsequent evaluation of a child would constitute a reevaluation.
OH Subpart E - 7
Parent Participation in Meetings [§300.501(a)-(b)]
The final regulations make clear that:
- A meeting does not include informal or unscheduled conversations involving public agency personnel and conversations on issues such as teaching methodology, lesson plans, or coordination of service provision if those issues are not addressed in a child's IEP.
- A meeting also does not include preparatory activities that public agency personnel engage in to develop a proposal or response to a parent proposal that will be discussed at a later meeting.
OH Subpart E - 8
Other Clarifications:
- Informal discussions among teachers and administrators, which may or may not be prearranged, are not meetings for which parents must receive notice and the opportunity to attend.
- Whether or not a meeting is prearranged is not the deciding factor in determining whether parents would have the right to attend. Rather, what triggers parents' right to be involved is when the meeting is to discuss and potentially resolve issues related to the identification, evaluation, and educational placement of the child, and the provision of FAPE to the child.
- In practical terms, this means that meetings to which
the parents must be afforded the opportunity to attend cannot be convened without providing parents with reasonable notice.
OH Subpart E - 9
- Whether or not video-conferencing, as well as other methods for enabling full participation in meetings by those with a right to attend, are used is dependent on the particular circumstances, and no one method is mandated.
- If one effective option would be more costly in a particular situation than another, there is no mandate that the more costly alternative be chosen.
OH Subpart E - 10
Parent Involvement in Placement Decisions [§300.501(c)]
The NPRM included a provision that required public agencies to "take whatever action is necessary" to ensure that parents understand and are able to participate in any group decisions relating to the educational placement of their child.
The final regulations clarify this provision and use the following wording:
"The public agency shall make reasonable efforts to ensure that the parents understand, and are able to participate in, any group discussions relating to the educational placement of their child, including arranging for an interpreter for parents with deafness, or whose native language is other than English."
OH Subpart E - 11
Why the change?
- Some thought that "whatever action is necessary" was too broad.
- There were also concerns that the provision should not require schools to ensure participation and comprehension by parents but that schools should make reasonable attempts to ensure that parents participate and comprehend.
- Once a parent makes clear that he or she will be involved in the placement decision-making process, this provision requires that the agency ensure that the parent is actually able to participate in (which includes understanding) the process.
OH Subpart E - 12
- However, it is possible that even if an agency makes reasonable efforts to ensure a parent's participation, the parent is still not able to meaningfully participate. Thus, it appears useful to clarify the regulation.
Other Clarifications from the Discussion:
- With respect to placement, if parents are to be meaningfully involved in the placement decision for their child, it is necessary that they understand the various placement options.
- It is implicit in the requirement that parents be ensured the opportunity to be members of any group making the placement decision and that whatever placement options are available to a child will be fully discussed and analyzed at placement meetings, allowing input from all the participants.
OH Subpart E - 13
Independent Educational Evaluation (§300.502)
The basic provision:
"The parents of a child with a disability have the right under this part to obtain an independent educational evaluation of the child..."
The provisions that previously further defined this general provision have been retained, and the final regulations provide further clarification.
- The agency's criteria applicable to IEEs must now be included as part of the information regarding IEEs provided, on request, to the parent.
- If a parent requests an IEE, the public agency may ask for the parent's reason why he or she objects to the public evaluation.
OH Subpart E - 14
- However, the explanation by the parent may not be required, and the public agency may not unreasonably delay either providing the IEE at public expense or initiating a due process hearing to defend the public evaluation.
- The agency criteria provision has been modified to make clear that, while the criteria under which the evaluation is obtained must be the same as the criteria that the public agency uses when it initiates an evaluation, such criteria must be consistent with the parents' rights to an IEE.
OH Subpart E - 15
Clarifications from the Discussion:
- There is nothing in the regulations with respect to IEEs, or evaluations in general, that would prevent reasonable travel for necessary services not available in the community.
- Evaluations of children under IDEA are to cover all areas related to the suspected disability, which may include medical examinations for purposes of determining the child's disability.
OH Subpart E - 16
- The right of a parent to obtain an IEE is triggered if the parent disagrees with a public initiated evaluation.
- Therefore, if a parent refuses to consent to a proposed public evaluation in the first place, then an IEE at public expense would not be available since there would be no public evaluation with which the parent can disagree.
- If the parent believes the proposed public evaluation is inappropriate, he or she may pursue an appropriate publicly-funded evaluation via the mediation or due process procedures.
OH Subpart E - 17
Changes in Notice (§§300.503-300.504)
The requirement that parents be informed about State complaint procedures, including a description of how to file a complaint and the timelines under those procedures, has been moved from the "prior written notice" content to the "procedural safeguards notice."
Why?
- The provision in the NPRM was proposed to enhance the awareness of parents of low-cost and less adversarial mechanisms for resolving disputes with schools. Therefore, it makes sense to require State complaint procedures to be explained along with due process and mediation, rather than in the prior written notice.
OH Subpart E - 18
Parent Consent (§300.505)
With respect to parent consent, the final regulations:
- specifically provide for informed consent;
- make clear that parent consent is not required before-
(1) reviewing existing data as part of an evaluation or a reevaluation; or
(2) administering a test or other evaluation that is administered to all children unless, before administration of that test or evaluation, consent is required of parents of all children.
- provide that a public agency may not use a parent's refusal to consent to one service or activity to deny the parent or child any other service, benefit, or activity of the public agency, except as required by these regulations.
OH Subpart E - 19
Clarifications from the Discussion:
- Parental consent would be necessary if a test is conducted as part of an evaluation or reevaluation, and when any assessment instrument is administered as part of an evaluation or reevaluation.
- However, schools would not be required by these regulations to obtain parental consent for teacher and related service provider observations, ongoing classroom evaluation, or the administration of or review of the results of adapted or modified assessments that are administered to all children in a class, grade, or school.
- If a child is about to graduate or otherwise stop receiving special education and related services,
prior notice requirements would be triggered.
OH Subpart E - 20
- In practical terms, if a State does not allow the agency to override a parent's refusal for an initial evaluation or reevaluation which the agency deems necessary in order to provide FAPE, the agency must follow the requirements of State law.
- In cases where the evaluation or reevaluation is necessary in order to determine that the child is or continues to be a child with a disability under Part B, and State law prohibits an agency from overriding a parental refusal to consent, the agency may have no recourse but to not provide, or not continue to provide, services under the Act to the child.
Of course, if an agency proposed an evaluation or reevaluation and the parent refused consent, the agency could reconsider whether its proposed evaluation or reevaluation was necessary, if circumstances warrant.
OH Subpart E - 21
Mediation (§300.506)
The final regulations make two significant changes from the NPRM:
(1) If a mediator is not selected on a random (e.g., a rotation) basis from the list described in paragraph (b)(2)(i) of this section, both parties must be involved in selecting the mediator
and agree with the selection of the individual who will mediate.
(2) A person who otherwise qualifies as a mediator is not an employee of an LEA
or State agency solely because he or she is paid by the agency to serve as a mediator.
OH Subpart E - 22
Clarifications from the Discussion:
- The use of a single mediator in the mediation process is important for clear communication and
accountability.
- Paragraph (b)(1)(iii)-("The procedures must ensure that the mediation process is conducted by a qualified and impartial mediator who is trained in effective mediation techniques")-repeats the statutory language and is clear that each mediation be conducted by one mediator, as opposed to a panel or multiple mediators.
OH Subpart E - 23
- In general, a hearing officer should not extend the timelines for a due process hearing based on the fact that there is a pending mediation in the case unless both parties agree to that extension.
- If mediation is used in the resolution of a State complaint, it should not be viewed as creating, in and of itself, an exceptional circumstance justifying an extension of the 60-day timeline.
- While the SEA or LEA may require that the parent attend the meeting to receive an explanation of the benefits of mediation and to encourage its use, a parent's failure to attend this meeting prior to the due process hearing should not be used to justify delay or denial of the hearing or the hearing decision.
OH Subpart E - 24
Impartial Due Process Hearing; Parent Notice; Disclosure (§300.507)
The §300.507 of the NPRM contained two new provisions (not specifically stated in the statute or the current regulations) with respect to due process hearings.
Change #1:
The regulations in effect when IDEA '97 passed provided that a parent or a public agency may initiate a hearing on matters relating to the identification, evaluation, or educational placement of the child, or the provision of FAPE to the child.
- Now, when such a hearing is initiated, the public agency must inform the parents of the availability of mediation (described in §300.506).
OH Subpart E - 25
Change #2:
IDEA '97 requires that when parents request a due process hearing, they (or the attorney representing the child) are required to provide notice to the public agency. This notice must include specific information.
- A public agency may not deny or delay a parent's right to a due process hearing for failure to provide this notice.
These provisions were retained. The final regulations also make a change to "Content of parent notice" [§300.507(c)(2)(iv)], which now includes:
...a description of the nature of the problem of the child relating to the proposed or refused initiation or change, including facts relating to the problem...
OH Subpart E - 26
Hearing Rights (§300.509)
The current regulation establishes a "5 days" time period for disclosure.
The new statute provided for a "5 business days" time period for disclosing results of evaluations.
The final regulations avoid the confusion and additional litigation and costs by making the time frame for disclosure to be 5 business days prior to the hearing.
Note: This change is consistent with prior interpretations by the Department, which recognized that the intent of pre-hearing disclosure is to avoid surprise by either party at the hearing.
OH Subpart E - 27
Finality of Decision; Appeal, Impartial Review (§300.510)
The proposed regulations included a provision that would give a copy of written findings and the decision to the parties.
This was changed by the final regulations to require that:
"The official conducting the review shall give a copy of written, or, at the option of the parents, electronic findings of fact and decisions."
OH Subpart E - 28
Attorney Fees (§300.513)
This section has changed in two ways:
(1) use of Part B money to pay attorneys' fees, and
(2) the entire statutory provision regarding attorneys' fees has been added.
Use of Part B Money
- Funds under Part B of the Act may not be used to pay attorneys' fees or costs of a party related to an action or proceeding under section 615 of the Act and subpart E of these regulations.
- This provision does not preclude a public agency from using funds under Part B for conducting an action or proceeding under section 615 of the Act.
OH Subpart E - 29
Inclusion of Statutory Provisions
- This second change-the inclusion of the entire statutory attorney fee provisions-is new to these
regulations, since they have never before been a part of the regulations. But the provisions have been in the statute itself for many years.
- According to the regulations, a court awards reasonable attorney's fees under section 615(i)(3) of the Act consistent with the following:
--- Determination of amount of attorneys' fees: Fees awarded under this section must be based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished. No bonus or multiplier may be used in calculating the fees to be awarded.
OH Subpart E - 30
--- Prohibition of attorneys' fees and related costs for certain services:
(1) Attorneys' fees may not be awarded and related costs may not be reimbursed in any action or proceeding under section 615 for services performed subsequent to the time of a written offer of settlement to a parent if-
...the offer is made within the time prescribed by Rule 68 of the Federal Rules of Civil Procedure or, in the case of an administrative proceeding, at any time more than 10 days before the proceeding begins;
...the offer is not accepted within 10 days; and
...the court or administrative hearing officer finds that the relief finally obtained by the parents is not more favorable to the parents than the offer of settlement.
OH Subpart E - 31
(2) Attorneys' fees may not be awarded relating to any meeting of the IEP team unless the meeting is convened as a result of an administrative proceeding or judicial action, or at the discretion of the State, for a mediation conducted prior to the filing of a request for due process under §§300.507 or 300.520-300.528.
- Exception to the above prohibition on attorneys' fees and related costs: Notwithstanding the above prohibition, an award of attorneys' fees and related costs may be made to a parent who is the prevailing party and who was substantially justified in rejecting the settlement offer.
- Reduction of amount of attorneys' fees: With one exception (described on the next overhead), the court reduces, accordingly, the amount of the attorneys' fees awarded under section 615, if the court finds that-
(1) The parent, during the course of the action or proceeding,
unreasonably protracted the final resolution of the controversy;
OH Subpart E - 32
(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 comparable 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 the parent did not provide to the school district the appropriate information in the due process complaint in accordance with §300.507(c).
- Exception to the above reduction in amount of attorneys' fees: The provisions with respect to reducing the amount of attorneys' fees do not apply in any action or proceeding if
the court finds that the State or local agency unreasonably protracted the final resolution of the action or proceeding, or there was a violation of section 615 of the Act.
OH Subpart E - 33
Child's Status During Proceedings (§300.514)
The final regulations require that:
"If the decision of a hearing officer in a due process hearing conducted by the SEA or a review official in an administrative appeal agrees with the child's parents that a change of placement is appropriate, that placement must be treated as an agreement between the State or local agency and the parents for purposes of paragraph (a) of this section [determining the child's current placement during subsequent appeals]."
OH Subpart E - 34
Why was this change made?
- This paragraph is based upon, and incorporates, the longstanding judicial interpretation of the Act's pendency provision.
- However, this provision does not limit either party's right to seek appropriate judicial review under §300.512. It only shifts responsibility for maintaining the parent's proposed placement to the public agency while an appeal is pending in those instances in which the State hearing officer or State review official determines that the parent's proposed change of placement is appropriate.
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