PROCEDURAL SAFEGUARDS FOR PARENTS OF STUDENTS WITH DISABILITIES
THIS PROCEDURAL SAFEGUARDS NOTICE MUST BE GIVEN OR MAILED TO PARENTS:
(1) upon their request;
(2) when the student is referred for special education the first time;
(3) with each notification of an individualized education program (IEP) team meeting;
(4) when any reevaluation of the student is conducted;
(5) when a request for a due process hearing is filed; and
(6) on the day on which the decision is made to take disciplinary action that may cause a change in placement.
INTRODUCTION - This document provides parents of students with disabilities, from birth to age 26, an overview of their educational rights with respect to special education. This document incorporates procedural safeguards to parents and students with disabilities afforded under the Individuals with Disabilities Education Act (IDEA), the IDEA implementing regulations, the Michigan Mandatory Special Education Act, and the Michigan Revised Administrative Rules for Special Education. In this document R____ will refer to a rule in the Michigan Revised Administrative Rules for Special Education, and 34 CFR ____ will refer to the federal IDEA regulations.
PARENTAL CONSENT - “Consent” means that (1) the parent has been fully informed of all information relevant to the activity for which consent is sought in his or her native language or other mode of communication; (2) the parent understands and agrees in writing to the carrying out of the activity for which his or her consent is sought, and the consent describes that activity and lists the records (if any) which will be released and to whom; and (3) the parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at any time. If a parent revokes consent, the revocation is not retroactive. (In other words, it does not negate an action that has occurred after the consent was given and before the consent was revoked.) The district must obtain informed parental consent before conducting a pre-placement evaluation, conducting any reevaluation, or initially placing a student with a disability in a program providing special education and related services. If a parent fails to respond to a request for a reevaluation, the educational agency may conduct a reevaluation if it can demonstrate that reasonable measures to obtain parental consent have been taken.
To conduct an initial evaluation or reevaluation, the district must seek parental consent and provide notice which includes: (1) the reason(s) and nature for an evaluation/reevaluation; (2) a description of the types of special education programs and services available within the intermediate school district (ISD); (3) a list of organizations, including addresses and phone numbers, available to assist parents in understanding the special education process; (4) a statement of parent’s right to examine all educational records and to participate in meetings with respect to identification, evaluation, program, educational placement and the provision of a FAPE; (5) a statement that a parent may be accompanied to an Individualized Education Program (IEP) team meeting by any person(s) the parent desires; (6) the right to obtain an independent educational evaluation (IEE) if the parent disagrees with the district’s evaluation; (7) a statement of the opportunity for the parent to provide the multidisciplinary evaluation team (MET) with information about their student’s suspected disability and the opportunity to present information to the IEP Team meeting; and (8) the district may use the hearing procedures in Michigan’s Revised Administrative Rules for Special Education, Rules 340.1724 to 340.1724b, to determine if the person may be evaluated or initially provided special education and related services without parental consent.
If the hearing officer upholds the district, the district may evaluate or initially provide special education and related services to the student without the parent’s consent, subject to the parent’s rights under Rule 340.1725 (administrative appeal) and Rule 340.1725a (civil action) and to have the student remain in his or her present educational placement during the time the administrative or judicial proceeding is pending.
PRIOR NOTICE TO PARENTS - The district must provide prior written notice to the parents of a student with a disability each time it proposes or refuses to initiate or change the identification, evaluation, educational placement, or the provision of a free appropriate public education to the student. The notice must include: (1) a full explanation that the procedural safeguards available to the parents under the IDEA; (2) a description of where a parent can obtain a copy of the procedural safeguards document; (3) a description of the action proposed or refused by the district, an explanation of why the district proposes or refuses to take the action, and a description of any options the district considered and the reasons why those options were rejected; (4) a description of each evaluation procedure, test, record, or report the district uses as a basis for the proposal or refusal; (5) a description of any other factors which are relevant to the district’s proposal or refusal; and (6) a list of sources that parents may contact to obtain assistance in understanding the content of the prior notice.
The notice must be written in language understandable to the general public, and provided in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so. If the native language or other mode of communication of the parent is not a written language, the educational agency shall have the notice translated orally or by other means to the parent in his or her native language or other mode of communication so that the parent understands the content of the notice. The district must maintain written evidence that these requirements have been met.
PARENT INVOLVEMENT - Parents must be given an opportunity to participate in meetings with respect to the identification, evaluation, educational placement, and the provision of a FAPE. A meeting does not include informal or unscheduled conversations involving district staff, conversations on issues such as teaching methodology, lesson plans or coordination of services if those issues are not addressed in the IEP. A meeting also does not include preparatory activities of district staff to develop a proposal or respond to a parent proposal that will be discussed at a later meeting.
EVALUATION PROCEDURES - “Evaluation” means procedures used in accordance with Section1414 of the IDEA to assist the Individualized Education Program (IEP) team in its role of determining whether a student has a disability and the nature and extent of the special education and related services that the student needs. The term also means procedures used selectively with an individual student and does not include ongoing classroom evaluation, teacher observation, basic tests administered to or procedures used with all students in a school, grade, or class. The parent has the right to:
(1) have tests and other evaluation materials provided and administered in the student’s native language or other mode of communication, unless it is clearly not feasible to do so;
(2) be assured that testing does not discriminate on the basis of race or cultural background;
(3) have evaluation instruments used that are validated for the specific purpose(s) for which they were intended and administered by trained personnel in conformance with the instructions provided by their producer; if an assessment is not conducted under standard conditions, a description of the extent the assessment varied from the standard administration must be included in the evaluation report;
(4) have evaluations used that assess specific areas of educational need and not produce merely a single intelligent quotient (IQ) score. No single procedure is to be used by the IEP Team as the sole criterion for determining whether the student is a student with a disability and an appropriate special education program for the student;
(5) have a variety of assessment tools and strategies used to assess all areas of suspected disability and gather relevant functional and developmental information that may assist the IEP Team in determining eligibility, IEP content, and how to enable the student to be involved in, and progress in, the general curriculum or appropriate activities. The evaluation should cover all areas relating to the suspected disability, including, where appropriate health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor ability;
(6) have technically sound instruments used that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors;
(7) have assessment tools and strategies used that provide relevant information that directly assists the IEP Team in determining the educational needs of the student;
(8) have evaluation instruments and procedures adapted for students with impaired sensory, physical or speaking skills; and consider the age, socioeconomic and cultural background;
(9) as part of an initial evaluation, if appropriate, and as part of a reevaluation have the student’s IEP Team review existing evaluation data on the student. Based upon that review, including parent input, the IEP Team must identify what additional data, if any, is needed to determine (a) whether the student is (or continues to be) disabled; (b) the student’s present levels of performance and educational needs; (c) whether the student needs (or continues to need) special education programs and/or related services; and (d) whether any changes in such programs and services are needed to enable the student to meet the goals in the IEP and participate, as appropriate, in the general curriculum. The district shall use those tests and materials needed to produce the data identified above by the IEP Team;
(10) have the evaluation completed by a multidisciplinary evaluation team (MET) of at least two persons, which includes a teacher or person knowledgeable in the area of the suspected disability. The evaluation shall be sufficiently comprehensive to identify all of the student’s special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified;
(11) provide the MET with information about the student’s suspected disability, along with any evaluation(s) the parent may have obtained for the student;
(12) have an initial evaluation conducted by a MET within 30 school days after the school has received the parent’s written consent to evaluate;
(13) have a reevaluation every three years to determine if the student still has a disability and is eligible for special education (unless notified a reevaluation is not needed, the reasons why and the right to request a reevaluation despite the notice);
(14) be provided a copy of the evaluation report and the documentation of determination of eligibility;
(15) request reevaluation more frequently than three years if it appears appropriate;
(16) be notified of each evaluation procedure, test, record, or report the IEP Team used in determining eligibility and the need for special education programs or services; and
(17) if the student is to receive vocational education, have a vocational evaluation which must include special information regarding the student’s disabling condition and an assessment of the student’s (a) personal adjustment skills; (b) aptitudes; (c) interests; (d) academic achievement.
INDEPENDENT EDUCATIONAL EVALUATION - “Independent educational evaluation” (IEE) means an evaluation conducted by a qualified examiner who is not employed by the district responsible for the education of the student in question. “Independent educational evaluation at 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 the parent.
The parent of a student with a disability or suspected disability, has the right to obtain an IEE of the student, as defined in Rule 340.1701(a) if the parent disagrees with an evaluation obtained by the district. However, the district may initiate a due process hearing under Rule 340.1724 to show that its evaluation is appropriate. If the final decision finds that the evaluation is appropriate, the parent still has the right to an IEE, but not at public expense. If the parent obtains an IEE at their own expense, the results of the evaluation must be considered by the district in any decision made with respect to the provision of a FAPE to the student, and may be presented as evidence at a due process hearing regarding the student.
If a hearing officer requests an IEE as part of a hearing, the cost of the evaluation must be at public expense. Upon request, each district shall provide parents with information about where an IEE may be obtained. When 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, shall be the same as the criteria which the district uses when it conducts an evaluation.
MEDIATION - Any party before or after requesting a hearing may request mediation which is a process through which the parties seek to reach a mutually agreeable settlement. Mediation is a voluntary procedure. The mediator shall be subject to mutual agreement by the parties and shall be a qualified and impartial mediator trained in effective mediation techniques. The same person shall not mediate and hear the same dispute. The mediation shall not be used to delay the hearing or deny other rights or procedural safeguards. If an agreement is reached at mediation, such agreement shall be set forth in a written mediation agreement. According to Michigan special education rules, within five school days of receipt of the mediation agreement, an IEP Team shall be convened to incorporate the agreement into the IEP. If any party rejects the mediator’s recommendations, the case shall proceed to hearing in the normal fashion.
The local district or the state agency may require parents who choose not to use the mediation to meet with a disinterested party who is under contract with either: (1) a parent training and information center or community parent resource center; or (2) an appropriate alternate dispute resolution entity at a time and location convenient to the parents. The purpose of the meeting would be to encourage the use and explain the benefits of the mediation process to the parents.
The state maintains a list of individuals who are qualified mediators and knowledgeable in the laws and regulations relating to the provision of special education and related services. There is no cost for the mediation process to the parents. Each session in the mediation process shall be scheduled in a timely manner and shall be held at a location that is convenient to the parties to the dispute. Discussions that occur during the mediation process shall be confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding. The parties to a mediation process may be required to sign a confidentiality pledge prior to the commencement of mediation.