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 35 - 71)
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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 - 35
Surrogate Parents (§300.515)
The final regulations contain a change in the criteria for the selection of surrogates. The provision now reads as follows:
(c) Criteria for selection of surrogates. (1) The public agency may select a surrogate parent in any way permitted under State law.
(2) Except as provided in paragraph (c)(3) of this section, public agencies shall ensure that a person selected as a surrogate-
(i) Is not an employee of the SEA, the LEA, or any other agency that is involved in the education or care of the child;
OH Subpart E - 36
(ii) Has no interest that conflicts with the interest of the child he or she represents; and
(iii) Has knowledge and skills that ensure adequate representation of the child.
(3) A public agency may select as a surrogate a person who is an employee of a nonpublic agency that only provides non-educational care for the child and who meets the standards in paragraphs (c)(2)(ii) and (iii) of this section.
OH Subpart E - 37
Why was this change made?
- Surrogate parents must adequately represent the educational interest of the child-not the interests of a particular agency.
- There is the possibility of a conflict between the interest of the child and those of the employee of the agency, because some educational decisions will have an impact on whether an educational agency or some other governmental agency will be responsible for paying for services for the child.
- When the child is in the care of a nonpublic agency with no role in the child's education, an employee of that agency may be the person best suited to serve as a surrogate because of his or her knowledge of the child and concern for the child's well-being.
OH Subpart E - 38
Transfer of Parental Rights at Age of Majority (§300.517)
Background
- IDEA 97 allows for a transfer of rights at the age of majority.
- IDEA 97 also has a "special provision" that allows a State to make a lesser determination than a formal proceeding in determination of incompetency.
- The "special rule" in the regulations was revised to make clear that it only applies if a State has a State mechanism for lesser competency proceedings.
OH Subpart E - 39
The Regulatory Provision
The revised language for the special rule provides:
"(b) Special rule. If, under State law, a State has a mechanism to determine that a student with a disability, who has reached the age of majority under State law that applies to all children and has not been determined incompetent under State law, does not have the ability to provide informed consent with respect to his or her educational program, the State shall establish procedures for appointing the parent, or if the parent is not available another appropriate individual, to represent the educational interests of the student throughout the student's eligibility under Part B of the Act."
OH Subpart E - 40
Manifestation Determination (§300.523)
Most of the NPRM language is retained. Provisions are added regarding deficiencies in IEPs or placement.
To clarify:
What triggers a manifestation determination review?
- A change in placement.
When is a removal considered a change in placement requiring a manifestation determination review?
- Removal by school personnel for up to 45 days for offenses involving weapons and drugs
- Removal by a hearing officer for up to 45 days if the hearing officer agrees with LEA that child is substantially likely to injure self of others
OH Subpart E - 41
- Removal for more than 10 consecutive school days
- A series of short-term removals of 10 school days or less each but collectively amounting to more than 10 school days and constituting a pattern of removals
When do you conduct the manifestation determination review?
- Not later than the date on which the decision to take the removal action is made, the parents must be notified of the decision and provided procedural safeguards notice.
- Immediately, but in no case later than 10 school days after the date on which the decision to take the action is made, a review must be conducted.
OH Subpart E - 42
What happens if, during the manifestation review, deficiencies in the IEP or placements are found?
- The final regulations add a new provision to address this issue. The public agency must take immediate steps to remedy those deficiencies.
OH Subpart E - 43
Protections for Children Not Yet Eligible for Special Education and Related Services (§300.527)
The final regulations retain much of the NPRM language and add a number of clarifying provisions.
(a) General. A child who has not been determined to be eligible for special education and related services under this part and who has engaged in behavior that violated any rule or code of conduct of the LEA...may assert any of the protections provided for in this part if the LEA had knowledge...that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred.
OH Subpart E - 44
(b) Basis of knowledge. An LEA must be deemed to have knowledge that a child is a child with a disability if-
(1) The parent of the child has expressed concern in writing (or orally if the parent does not know how to write or has a disability that prevents a written statement) to personnel of the appropriate educational agency that the child is in need of special eduation and related services;
(2) The behavior or performance of the child demonstrates the need for these services, in accordance with 300.7 (child with a disability)...
(3) The parent of the child has requested an evaluation of the child...or
Note: Underlined text is new.
OH Subpart E - 45
(4) The teacher of the child, or other personnel of the LEA, has expressed concern about the behavior or performance of the child to the director of special education of the agency or to other personnel in accordance with the agency's established child find or special education referral system.
(c) Exception. A public agency would not be deemed to have knowledge under paragraph (b) of this section if, as a result of receiving the information specified in that paragraph, the agency-
(1) Either-
(i) Conducted an evaluation under §§300.530-300.536 and determined that the child was not a child with a disability under this part; or
(ii) Determined that an evaluation was not necessary; and
OH Subpart E - 46
(2) Provided notice to the child's parent of its determination under paragraph (c)(1) of this section, consistent with §300.503...
(d)(2) Limitations. (i) If a request is made for an evaluation of a child during the time period in which the child is subjected to disciplinary measures under §300.520 or 300.521, the evaluation must be conducted in an expedited manner.
(ii) Until the evaluation is completed, the child remains in the educational placement determined by school authorities, which can include suspension or expulsion without educational services...
OH Subpart E - 47
Expedited Due Process Hearings (§300.528)
The final regulations retain some of the NPRM language, delete some language, and add a provision regarding the timeline.
...(b)(1) Each State shall establish a timeline for expedited due process hearings that results in a written decision being mailed to the parties within 45 days of the public agency's receipt of the request for the hearing, without exceptions or extensions.
(2) The timeline established under paragraph (b)(1) of this section must be the same for hearings requested by parents or public agencies.
Note: Underlined text is new.
OH Subpart E - 48
(c) A State may establish different procedural rules for expedited hearings under §§300.521-300.526 than it has established for due process hearings under §300.507.
(d) The decisions on expedited due process hearings are appealable consistent with §300.510.
OH Subpart E - 49
Referral to and Action by Law Enforcement and Judicial Authorities (§300.529)
The final regulations retain language from the NPRM and add clarification regarding the transmission of copies of the child's disciplinary and special education records.
...(a) Nothing in this part prohibits an agency from reporting a crime...
(b)(2) An agency reporting a crime under this section may transmit copies of the child's special education and disciplinary records only to the extent that the transmission is permitted by the Family Educational Rights and Privacy Act.
Note: Underlined text is new.
OH Subpart E - 50
Evaluation Procedures (§300.532)
The final regulations retain language from the NPRM and add several new sections with respect to evaluation. Accordingly, each public agency must ensure, at a minimum, that the following requirements are met:
Tests and Other Evaluation Materials Used to Assess a Child under Part B
- Must be selected and administered so as not to be discriminatory on a racial or cultural basis;
- Are provided in the child's native language or other mode of communication, unless clearly not feasible to do so; and
OH Subpart E - 51
- Materials and procedures used to assess a child with limited English proficiency must be selected and administered to ensure that they measure the extent to which the child has a disability and needs special education, rather than measuring the child's English language skills.
- A variety of assessment tools and strategies are used to gather relevant functional and developmental information about the child, including information provided by the parent, and information related to enabling the child to be involved in and progress in the general curriculum (or for a preschool child, to participate in appropriate activities) that may assist in determining:
--- Whether the child is a "child with a disability," and
--- The content of the child's IEP...
Note: Underlined text is new.
OH Subpart E - 52
- Any standardized tests given to a child must be validated for the purpose for which they are being used and must be administered by trained and knowledgeable personnel according to the test's instructions.
- If an assessment is not conducted under standard conditions, a description of the extent to which it varied from standard conditions (e.g., the qualifications of the person administering the test, or the method of test administration) must be included in the evaluation report.
Note: Underlined text is new.
OH Subpart E - 53
As previously required, public agencies must also ensure that:
- evaluation materials include those designed to assess specific areas of educational need, not just those providing a single general IQ score (intelligence quotient);
- tests are selected and administered so that results accurately reflect the child's aptitude or achievement level (or whatever other factors the test purports to measure), rather than reflecting the child's impaired sensory, manual, or speaking skills (unless those skills are the factors the test is designed to measure);
- no single procedure is used as the sole criterion for determining (a) whether the child is a "child with a disability" or (b) an appropriate educational program for the child.
OH Subpart E - 54
Public agencies must also ensure that:
- the child is assessed in all areas related to the suspected disability...;
- in evaluating each child with a disability under §§300.531-300.536, the evaluation is sufficiently comprehensive to identify all of the child's special education and related services needs, whether or not commonly linked to the disability category in which the child is classified;
- technically sound instruments are used that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors; and
- the evaluation provides relevant information that directly assists in determining the child's educational needs.
OH Subpart E - 55
Determination of Needed Evaluation Data (§300.533)
A review of existing data is part of the evaluation process under IDEA 97. This section retains most of the information that was in the NPRM, with a few changes.
Review of Existing Evaluation Data
As part of an initial evaluation (if appropriate) and as part of any reevaluation under Part B, a group that includes the individuals required by §300.344 and other qualified professionals, as appropriate, shall conduct a review of existing evaluation data on the child.
- Conduct of review. This group may conduct its review without a meeting.
OH Subpart E - 56
Requirements if Additional Data Are Not Needed
- If the group's determination is that no additional data are needed to determine whether the child continues to be a child with a disability, the public agency shall notify the child's parents-
--- of that determination and the reasons for it; and
--- of the right of the parents to request an assessment to determine whether, for purposes of services under this part, the child continues to be a child with a disability.
- The public agency is not required to conduct the assessment described above unless requested to do so by the child's parents.
Note: Underlined text is new.
OH Subpart E - 57
Other Clarifications:
- Whether additional data are needed as part of initial evaluation or reevaluation must be determined on a case-by-case basis:
--- depending on the needs of the child
--- depending on the information available regarding the child
--- by the group described in §300.344 (the IEP team) and other qualified professionals, as appropriate.
- A public agency must ensure that the group fulfilling these functions includes individuals beyond those that are described in §300.344 (IEP team), if necessary to ensure that appropriate, informed decisions are made.
OH Subpart E - 58
- Under both the statute and these regulations, parents have the right to request an assessment, as part of a reevaluation, to determine whether their child continues to have a disability under IDEA.
However:
- This right is limited to determinations of eligibility for services under Part B.
- If the group reviewing the existing data does not believe additional data are needed to determine a child's continued eligibility under IDEA, but the parents want additional testing for reasons other than continued eligibility under IDEA, such as admission to college, the denial of the parent's request would be subject to due process.
OH Subpart E - 59
- The composition of the group reviewing existing data will vary depending upon the nature of the child's suspected disability and other relevant factors.
- Although a public agency must ensure that the review of existing data and the determination of any needed additional data must be made by a group, including the parents, neither the statute nor these regulations require that the public agency conduct a meeting for this purpose. A State may require such meetings.
OH Subpart E - 60
- Neither the statute nor these regulations require that all individuals who were involved in the initial placement of a child be part of the group that, as part of a reevaluation of the child, reviews existing data and determines what additional data are needed.
- Both the statute and the regulations require that a group that includes all of the individuals described in §300.344 for an IEP meeting, and other qualified professionals, as appropriate, fulfill those functions.
OH Subpart E - 61
Determination of Eligibility (§300.534)
Upon completing the administration of tests and other evaluation materials-
(1) A group of qualified professionals and the parent of the child must determine whether the child is a child with a disability...and
(2) The public agency must provide a copy of the evaluation report and the documentation of
determination of eligibility to the parent.
OH Subpart E - 62
A child may not be determined to be eligible under this part if-
(1) The determinant factor for that eligibility determination is-
(i) lack of instruction in reading or math; or
(ii) limited English proficiency; and
(2) The child does not otherwise meet the eligibility criteria under 300.7(a).
Note: Underlined text is new.
OH Subpart E - 63
A public agency must evaluate a child with a disability in accordance with §§300.532 and 300.533 before determining that the child is no longer a child with a disability.
The evaluation described...above is not required before the termination of a student's eligibility under Part B of the Act due to graduation with a regular high school diploma, or exceeding the age eligibility for FAPE under State law.
Note: Underlined text is new.
OH Subpart E - 64
Other Clarifications:
- Public agencies must ensure that lack of instruction in reading or math is not the determinant factor in determining that a child is a child with a disability. The specific standards and process by which they do this, and the content of the evaluation report, are appropriately left to State and local discretion.
- Both the statute and the regulations require that, upon completing the child's evaluation, a public agency must provide a copy of the evaluation report and the documentation of determination of eligibility to the parent, but neither establishes a timeline for providing these documents to the parents. Rather, this timeline is appropriately left to State and local discretion.
- However, parents and other IEP team participants must have all the information they need to participate meaningfully in IEP meetings.
OH Subpart E - 65
Procedures for Determining Eligibility and Placement (§300.535)
In interpreting evaluation data for the purposes of determining if a child is a child with a disability under §300.7, and the educational needs of the child, each public agency shall-
(1) Draw upon information from a variety of sources, including aptitude and achievement tests, parent input, teacher recommendations, physical condition, social or cultural background, and adaptive behavior; and
(2) Ensure that information obtained from all of these sources is documented and carefully considered.
Note: Underlined text is new.
OH Subpart E - 66
If a determination is made that a child has a disability and needs special education and related services, an IEP must be developed for the child in accordance with §§300.340-300.350.
Placements (§300.552)
In determining the educational placement of a child with a disability, including a preschool child with a disability, each public agency shall ensure that the placement decision-
- is made by a group of persons, including the parents, and other persons knowledgeable about the child, the meaning of the evaluation data, and the placement options; and
- is made in conformity with the LRE provisions of this subpart...
Note: Underlined text is new.
OH Subpart E - 67
The public agency must also ensure that:
- The child's placement-
--- is determined at least annually;
--- is based on the child's IEP; and
--- is as close as possible to the child's home.
- Unless the IEP of a child with a disability requires some other arrangement, the child must be educated in the school that he or she would attend if nondisabled;
- In selecting the LRE, consideration is given to any potential harmful effect on the child or on the quality of services that he or she needs; and
- A child with a disability is not removed from education in age-appropriate regular classrooms solely because of needed modifications in the general curriculum.
Note: Underlined text is new.
OH Subpart E - 68
Other Clarifications:
- Public agencies that do not operate programs for nondisabled preschool children are not required to initiate those programs solely to satisfy the requirements regarding placement in the LRE.
- The full continuum of alternative placements at §300.551, including integrated placement options (such as community-based settings with typically developing age peers), must be available to preschool children with disabilities.
- The overriding rule in this section is that placement decisions for all children with disabilities, including preschool children, must be made on an individual basis.
OH Subpart E - 69
- Under §300.552 (Placements), a child with significant cognitive disabilities, for example, could not be removed from education in age-appropriate regular classrooms merely because of the modifications he or she needs to the general curriculum.
- This provision should not be read to require the placement of a child with a disability in a particular regular classroom or course if more than one regular age-appropriate classroom or course is available in a particular grade or subject.
OH Subpart E - 70
Children's Rights (§300.574)
- The SEA shall provide policies and procedures regarding the extent to which children are afforded rights of privacy similar to those afforded to parents, taking into consideration the age of the child and type or severity of disability.
- Under the regulations for the Family Educational Rights and Privacy Act of 1974 [34 CFR 99.5(a)], the rights of parents regarding education records are transferred to the student at age 18.
Note: Underlined text is new.
OH Subpart E - 71
- If the rights accorded to parents under Part B of the Act are transferred to a student who reaches the age of majority, consistent with §300.517, the rights regarding educational records in §§300.562-300.573 must also be transferred to the student. However, the public agency must provide any notice required under section 615 of the Act to the student and the parents.
Why was this moved into the regulations?
- Because of the importance of clarifying the relationship of parent and child rights under IDEA
and FERPA.
Note: Underlined text is new.
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