This material was originally presented  by the author on December 10, 2002, at a seminar entitled "Special Education Law in New Hampshire" sponsored by the Professional Development Network.

A Word of Caution

No two cases are exactly alike. This material is designed to provide educators with a broad understanding of certain aspects of New Hampshire law and the I.D.E.A. This material does not include every aspect of the law. You are strongly encouraged to seek a legal opinion from your school district's legal counsel regarding any specific case.

Table of Contents

EVALUATIONS, ELIGIBILITY DETERMINATIONS, AND IEPS

OVERVIEW

The goal of this seminar is to provide the educator with a general working knowledge of the state and federal requirements pertaining to the education of children with educational disabilities. In particular this material focuses on the state and federal legal requirements that have arisen since the reauthorization of the Individuals with Disabilities Education Act ("IDEA") and the adoption of our new state regulations.

I. Identifying Children with Disabilities

A. Child Find

In order to reach the stage of evaluation, a district⁽¹⁾ must first locate and identify children who may be disabled. Each district is required to find and evaluate suspected educationally disabled children within their district, between the ages of 0 and 21 years, although the obligation to provide a program does not commence until the age of 3. The "child find" obligations apply to children attending both public and private schools. Districts must comply with the child find procedures set forth in both the Federal Regulations (Sec. 300.125)⁽²⁾ and the State Regulations (Ed 1103.01 - 1103.03).⁽³⁾

The child find requirements extend to highly mobile children with disabilities (such as migrant and homeless children) and children who are suspected of being a child with a disability and in need of special education even though they are advancing from grade to grade. These child find requirements dovetail with the state statutory right of homeless children to attend local schools in accord with NH RSA 193:12(IV).

"Finding" the educationally disabled child is the first step in the sequence of the special education process. Ed 1106.01 identifies the sequence as: (a) referral; (b) evaluation; (c) determination of eligibility; and (d) development of an IEP and Placement.

1. Federal Requirements

The Federal Regulations do not specify how child find will take place. Instead, they simply require that the district have in effect "policies and procedures to ensure identification, location and evaluation".

2. State Requirements

The State Regulations provide us with more specific detail as to the "child find" requirements. See Ed 1103.01 et. seq. For children ages 0 to 3 years the district has a duty to identify and evaluate all children who are "potential children with disabilities" and who are suspected of being in need of special education services. For children 3 years of age, but "less than 22 years of age" the district has an additional duty of "classifying" all children determined to be children with disabilities.

The District is required to have "in-school" referral procedures which insure that "all children who are suspected or known to have a disability" are referred to the IEP Team for further evaluation.

3. Who May Refer?

Any person may refer a child under the age of twenty-two years to the IEP team. The State Regulations list the following nonexclusive reasons for a referral:

An example of these reasons constituting a basis for referral can be seen in Sherwood School District, 36 IDELR 256 (SEA OR 2002). In Sherwood a student had a long history of behavioral problems in the school district which ultimately resulted in his suspension. In addition to having Attention Deficit Hyperactivity Disorder, he had been diagnosed with depression. The school psychologist had informed the special education administrator that the student had problems with peer relationships. The parent had also informed the administrator of their child's difficulties. The Hearing Officer concluded the evidence was sufficient to suggest that the student might be eligible for services and that the special education administrator should have had a "reasonable suspicion of eligibility." The Hearing Officer concluded that this suspicion gave rise to responsibility on the part of the district, not the parents to discern whether an evaluation was warranted. The Hearing Officer found a violation of the child find requirements and ordered reimbursement for the student's private school placement for the past 15 month period. The Hearing Officer's order included reimbursement of expenses for tuition, transportation and testing.

Practice Pointer:

If the State views these reasons as sufficient reasons for referral then arguably these factors may become significant in determining whether or not the district "knew or should have known of a disability" for purposes of extending IDEA protection to a student in the disciplinary context.

4. Other Places Where We Are Required to "Find Children"

The district has a duty to publicize the identity of their child find representative. This duty includes annual correspondence or contact with agencies or groups within the district which may have knowledge of children with disabilities who are not being served. There is a mandatory requirement that the child find coordinator contact local agencies such as DCYF, the district courts, and residential educational and treatment programs.

5. Annual Notice Requirement.

Ed 1103.02 (f) requires that the District shall annually provide all parents of children with disabilities with information regarding their "rights and responsibilities" under federal and state law.

B. "Child with a Disability" Defined

The Federal Regulations enacted to implement the IDEA define "child with a disability" to mean a child, evaluated in accordance with the Federal Regulations, as having:

Who, by reason thereof, needs special education and related services.

(Sec. 300.7 (a).)

If a "child with a disability" needs only a related service, and not special education, the child does not qualify as a "child with a disability" under the eligibility section of the Regulations. However, if the related service required by the child is considered "special education,"⁽⁴⁾ as defined by Section 300.26 of the Regulations, the child is a "child with disability" under the regulations. See Section 300.7.

In sum, there are four criteria for identification of a "child with a disability" under the IDEA and State law:

It is important to note that the definitions utilized in the Diagnostic and Statistical Manual (DSM) by psychologists are not synonymous with the IDEA's regulatory definitions of various education disabilities.

1. Emotional Disturbance [ED]

One of the more difficult conditions to define is that of emotional disturbance. 34 C.F.R. § 300.7(c)(4) defines emotional disturbance as follows:

"(i) the term means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child's educational performance:

(a) an inability to learn that cannot be explained by intellectual, sensory or health factors;

(b) an inability to build or maintain satisfactory interpersonal relationships with peers and teachers;

(c) inappropriate types of behavior or feelings under normal circumstances;

(d) a general pervasive mood of unhappiness or depression;

(e) a tendency to develop physical symptoms or fears associated with personal or school problems."

Emotional Disturbance includes schizophrenia. However, the term does not apply to children who are socially maladjusted unless it is determined that they have an emotional disturbance.

(a) A Textbook Example of ED.

The case of Babb v. Knox County School System, 965 F.2d 104, 18 IDELR 1030 (6th Cir. 1992) is a textbook example of a case of emotional disturbance. Young Jason began having difficulties at age 4 when he was expelled from school for breaking a gerbil's leg and urinating on other children. At the tender age of 5 he attempted to strangle another student and to set a Christmas tree on fire. The 6th Circuit ruled that Jason was ED because "testimony in the record indicates that Jason had difficulty making and maintaining friendships. This inability to create normal social bonds no doubt stems, in part, from tendencies that have resulted in physical abuse of siblings and class mates, torture of animals, and property theft and destruction." The court also ruled that a school district should not have limited its review to a three-month history of Jason's educational performance.

The student's behavior however, need not be quite so bizarre as the case set forth above. For example, in Lincoln County School District, 37 IDELR 208 (SEA OR 2002) a 17 year old student suffering from anorexia nervosa was considered to qualify as emotionally disturbed after teachers documented the student's pervasive mood of unhappiness and depression. The Hearing Officer ordered reimbursement for private programs procured by the parents.

(b) The Need for Knowledge.

Districts are not required to be omniscient. For example, in Hoffman v. East Roy Community School District, 38 F.2d 750 (29 IDELR 1074) (Ed. Wi. 1999) the court ruled that a school district had no reason to evaluate a student when it had not been made aware of out of school difficulties nor been provided with information about the student's private therapy. The court specifically noted that the ED criteria are "more subjective and less quantitative than the criteria for the other disabling conditions . . . ."

However, while not required to be omniscient, the District cannot ignore the warning signs of an emotional disturbance. For example, in Board of Education of the Syracuse City School District, 37 IDELR 232 (SEA NY 2002) the Hearing Officer ruled that the District should have recognized the warning signs of the middle schooler's emotional disturbance such as, a sudden decline in academic performance, absenteeism, disciplinary violation and a turbulent family situation. All of these factors were deemed sufficient to warrant an evaluation obligation on the part of the District and a reimbursement order from the Hearing Officer for a private school placement. See also Manhattan Beach Unified School District, 34 IDELR 249 (SEA CA 2001).

(c) Pervasive Moods of Unhappiness.

In Muller v. Committee on Special Education of the East Islip Union Free School District, 145 F.3d 95, 28 IDELR 188 (2nd Cir. 1998) the 2nd Circuit held that Treena qualified as ED because she had a pervasive mood of unhappiness which had been exhibited over a long period of time into a marked degree. The court specifically noted that it was unnecessary for her to have been diagnosed with clinical depression because in the court's opinion the IDEA definition of ED did not require a child to be clinically or medically depressed and she had exhibited symptoms of depression. On the strength of that evidence the court ordered tuition reimbursement for a private placement.

(d) Distinguishing Social Maladjustment.

The courts are willing to acknowledge the difference between social maladjustment and emotional disturbance. For example, in Springer v. The Fairfax County School Board, 134 F.3d 659, 27 IDELR 367 (4th Cir. 1998) the 4th Circuit held that "[t]eenagers, for instance, can be a wild and unruly bunch. Adolescence is, almost by definition, a time of social maladjustment for many people. Thus a 'bad conduct' definition of serious emotional disturbance' might include almost as many people in special education as it excluded. On that basis, the 4th Circuit ruled that conduct such as declining grades, possession of burglary tools, tampering with an automobile, running away from home and staying out all night, steeling for parents and others, use of alcohol and marijuana, high absenteeism, reckless driving, and leaving school without permission and fighting were not necessarily examples of emotional disturbance.

(e) The Need for an Adverse Affect on Educational Performance.

Emotional problems that do not affect educational performance will not be typified as an emotional disturbance. For example, in J.D. v. Pawlet School District, 224 F.3d (2nd Cir. 2000) J.D.'s educational performance was at or above the norm for his age group. The court held that he was not ED because there was no educational affect as a result of a disability despite evidence of behavior and emotional problems.

In Indian River County School Board 36 IDELR 47 (SEA FL 2002) the District refused to reevaluate a student for emotional disturbance eligibility. The Hearing Office found that a previous evaluation together combined with the student's academic progress in middle school provided the District with a rational basis to reject the reevaluation demand. The student exhibited inappropriate types of behavior during transition times. However, these behaviors were intermittent and did prevent her from making excellent academic progress. The student's psychiatrist recommended residential placement, but did such based on out of school behaviors that occurred during the summer.

For a contrasting case see Venus Independent School District v. Daniel S. 36 IDELR 185 (Northern District Texas 2002). In this case the student's academic performance was well above average and he exhibited clinically significant emotional issues. The student had been suspended over 20 times and his behavior included a persistent refusal to do homework and disrespect toward school staff. The court affirmed the Hearing Officer's decision that the student was IDEA eligible under the category of serious emotional disturbance and otherwise health impaired. The court reasoned that despite the student's academic success he could benefit from special education services such as counseling, social skills training and a behavioral intervention plan (BIP) to address his behavior that resulted in removal from the classroom.

(f) Defining "Inappropriate Behavior."

Taking drugs or alcohol is not included within the definition of "inappropriate behaviors under normal circumstances." See Letter to Anonymous, EHLR 213: 247 (OSEP August 11, 1989).

2. Other Health Impairment

Another area that frequently challenges special educators is the definition of "other health impairment." Section 300.7(c)(9) defines other health impairment as 

"having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that:

(i) is due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, and sickle cell anemia; and

(ii) adversely affects a child's educational performance."

Not all medical conditions will result in a finding that a student is OHI eligible. For example, in Pocono Mountain School District, 36 IDELR 224 (SEA PA 2002) a student suffered from a sustained respiratory illness and prolonged absence from school. The Hearings Panel found that the student was not OHI eligible because he did not require special education to meet his unique needs. While there was agreement that his health was impaired, his homebound instruction program resulted in academic achievement and there were no psychological factors found which would impede his learning.

In those circumstances where an IEP team concludes that a child's disability does not mandate a need for special education services, they should still consider whether or not the student may qualify under Section 504 of the Rehabilitation Act.

ADD/ADHD.

ADD/ADHD is one of the most frequent conditions identified as an other health impairment. In a joint policy memorandum, the Office for Special Education Programming observed that about 3% to 5% of students may have significant educational problems due to ADD or ADHD. According to OSEP these students may qualify as disabled under the categories of OHI, LD or ED. OSEP has observed that OHI is a possible identifying definition because ADD may result in a chronic or acute health problem which causes limited alertness. In those cases where special education services are not required the ADD child may still qualify under Section 504.

OSEP has also taken the position that a medical diagnosis is not required for a school district to identify students as ADD/ADHD. However, our State Regulations imply that a medical diagnosis is required for identification under OHI. See ED Table 1100.1 "Qualified Examiners by Type of Disability". Usually parents obtain the necessary opinion through their family physician. OSEP takes the position that if there is a request, the medical opinion must be furnished at no expense to the parents. See 34 IDELR ¶ 35 (OSEP Opinion June 3, 2000); Letter to Gallagher, 24 IDELR 177 (OSEP January 23, 1996).

Not all cases of Attention Deficit Disorder result in the determination that student is otherwise health impaired. For example, in Paron School District, 36 IDELR 254 (SEA R 2002) a student was diagnosed with ADD, manifest inattention, poor impulse control and distractability. However, witness testimony indicated that he consistently performed at or above grade level and participated in the District's "gifted and talented" program. Once again, it is usually the second prong of the test for OHI which creates the controversy; that is whether or not the medical condition "adversely affects a child's educational performance."

3. Specific Learning Disability

Specific learning disability is another major disabling condition which presents a definitional challenge to educators.

Section 300.7 (c) (10) defines a "specific learning disability" as follows:

We know from the case of Manchester School District v. Charles M.F., 21 IDELR 732 (D.N.H. 1994) that a student may not be excluded from identification as learning disabled solely because the student has an emotional disturbance if the student has a specified disorder and the cause is not the emotional disturbance. It is the role of the evaluation team to determine whether a student's educational problems are due to environmental, cultural or economic disadvantage. See Letter to Copenhaver, 25 IDELR 640 (OSEP November 4, 1996). The mere fact that a child has a high IQ does not preclude them from identification as suffering from a specific learning disability. See e.g. Letter to Lillie, 23 IDELR 714 (OSEP April 5, 1995).

A speech and language impairment can also give rise to identification under the IDEA. 34 C.F.R. § 300.7(c)(11) defines a speech or language impairment as a "communication disorder, such as stuttering, impaired articulation, a language impairment, or a voice impairment, that adversely affects a child's educational performance." In Mary P. v. Illinois State Board of Education, 23 IDELR 1064 (N.D. Ill. 1996) the hearing officer ruled that a student with speech problems has an educational impairment if the student is inhibited in his ability to communicate with his peers or teachers.

The majority of due process cases involving the question of a specific learning disability turn on the question of whether the student has "a severe discrepancy between her intellectual ability and achievement." It remains a fundamental principal that the discrepancy between ability and achievement must be severe. See Discussion, page 17 "Additional Procedures for Evaluation of Children with Specific Learning Disabilities".

C. The "Developmental Delay" Designation

The Federal Regulations provide that States and districts have the discretion to include children with "developmental delays" in the definition of "child with a disability," if the child's delays have been measured by appropriate diagnostic tests and procedures which establish that, by reason thereof, the child needs special education and related services. Section 300.7 (b).

New Hampshire recognizes this concept in Ed 1102.08 and 1102.09 (definition of "child with a disability" includes a child with a developmental delay). New Hampshire defines a "developmentally delayed child" as: "a preschool child between 3 and 9 years of age, who, because of impairments in development, needs special education or special education and educationally related services, provided that such child has been determined to have one of the other educationally disabling conditions defined in the Regulations". NH RSA 186-C:2, I.

A District is not prohibited from also continuing to use specific disability categories. The reauthorized IDEA, particularly section 602(3)(B) of the Act, provides that implementation of the provision related to serving children under the developmental delay designation is at the discretion of both the state and the LEA. 34 C.F.R. 300.313(a)(2) provides that "A state may not require an LEA to adopt and use the term developmental delay for any children within its jurisdiction." The federal government cautions that, "It is important to ensure that the broad definition of developmental delay is not used to deny children proper evaluations. In all cases, evaluations must be sufficiently comprehensive to ensure the children's needs are appropriately identified." See Federal Register Volume 64, No. 48, Friday, March 12, 1999, page 12541.

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II. School District Responsibilities for Evaluations, Re-evaluations and Eligibility Determinations

The term "evaluation" has been defined in the Federal Regulations at Section 300.500 (b)(2). "Evaluation" means procedures in accordance with Sections 300.530 -300.536 to:

Our State Regulations accept the Federal definition of an "evaluation". See Ed 1102.21.

A. Evaluation Procedures

1. General Procedures

Section 300.532 of the Federal Regulations and Section 1107 of the State Regulations set forth the minimum requirements for evaluation procedures. The State Regulations on evaluation procedures are similar to the Federal Regulations, but are more specific and detailed. The State Regulations require that districts comply with Sections 300.320, 300.531-536, and 300.540-543 of the Federal Regulations, specify time lines, and designate "qualified examiners." See Ed A, Table 1100.1 "Qualified Examiner's by Type of Disability."

An "evaluation" is comprised of the following minimum components:

The Federal Regulations require that the tests and other evaluation materials used to assess a child be selected and administered so as not to be discriminatory on a racial or cultural basis. Section 300.532(a)(1). Tests and procedures must be provided and administered in the child's native language or other mode of communication, unless it is clearly not feasible to do so. Id. In this regard, "not feasible" does not mean cost prohibitive, but rather, that there is simply no way of administering a test in a child's native language or mode of communication. Thus, in the event a district finds it is not possible to administer a test due to a child's language, the district should consider whether an alternative test administered in the child's native language or mode of communication can be used in place of the test which is not feasible.

The requirements for conducting evaluations provide that a district must ensure that the materials and procedures "used to assess a child with limited English proficiency are selected and administered so 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." Section 300.532(a)(2).

Practice Pointer:

Schools are encountering new demands on their resources due to the influx of students with limited English proficiency. This regulation is an offshoot of the "cultural factors" language which historically had been used to rule out an educational disability. The Office for Civil Rights has taken an aggressive posture with regard to the obligation of schools to teach English as a second language.

Districts are required to use a variety of assessment tools and strategies to gather relevant functional and developmental information about the child. Section 300.532(b). This Regulation provides that, in addition to including information provided by the parent, a district should gather information related to "enabling the child to be involved in and progress in the general curriculum" that may assist in determining whether the child has a disability and the appropriate content of the child's IEP. Id. A district must also ensure that any standardized tests given to a child have been validated, and are administered by trained and knowledgeable personnel in accordance with any instructions provided by the producer of the test. Section 300.532(c).

Practice Pointer:

The Federal Regulations require that evaluators be "trained and knowledgeable." The New Hampshire State Regulations are more specific with respect to who may administer certain tests, requiring state certified or licensed examiners in the specific area of disability being tested. See Ed Table 1100.1 "Qualified Examiners by Type of Disability."

2. Nonstandard Conditions

The Federal Regulations state that if an assessment is not conducted under standard conditions, a description of the extent to which it varied from standard conditions must be included in a district's evaluation report. Section 300.532 (c)(2). This section also requires that a district ensure that 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 has been classified. Section 300.532 (h). This provision, which was an amendment, more than likely arose from the Department of Education's desire to avoid a perceived tendency for evaluation teams to focus too narrowly on a specific suspected disability category, and to encourage a wide-reaching, comprehensive evaluation.

3. Review of Existing Evaluation Data

The Federal Regulations require that the evaluation team review existing evaluation data on the child to determine whether the child has a particular category of disability, or, in the case of a re-evaluation, whether the child continues to have such a disability, so as to decide whether the child needs, or continues to need, special education and/or related services. Section 300.533. This review of evaluation data is also conducted to determine whether any modifications are needed to enable the child to meet the goals set out in the IEP. The term "evaluation data" encompasses:

4. Review Without a "Meeting"

The Federal Regulations provide that the evaluation team may conduct its review without holding a meeting. See Section 300.533 (b). This provision was part of an amendment, which constituted a significant revision, because it clarified that the evaluation team does not need to comply with the procedural requirements and due process notice procedures required by the IDEA whenever a "meeting" is held.

Practice Pointer:

Use this new provision with care. The purpose of the meeting must be limited in scope to the issue of whether or not the evaluation data warrants modifications to the IEP or whether or not a child requires further evaluation to determine whether they continue to be a child with a disability. In many cases, the participation of the parent is preferable. The parents must be informed of any determination arising from the meetings.

B. Evaluation as Prerequisite to Special Education

The State is responsible for ensuring that each school district establishes and implements procedures that meet the requirements of the Federal Regulations for conducting evaluations. Section 300.530. Each district must conduct a full and individual initial evaluation, in accordance with the procedures set forth in the Regulations, before beginning to provide special education and related services to a child with disability. Section 300.531. The purpose of the evaluation is to determine if the child is a "child with a disability," as defined by the Regulations, and to determine the educational needs of the child. In conducting this evaluation, a district is to follow the procedures described in the Regulations, and must ensure that the results of the evaluation are used by the child's IEP team in meeting the requirements of the Regulations pertaining to IEPs. Section 300.320.

Each district is also responsible for ensuring that a re-evaluation of each child with a disability is conducted, in accordance with the Regulations, and that the results of any re-evaluations are addressed by the child's IEP team when reviewing and/or revising the child's IEP. Section 300.321. A re-evaluation must be conducted at least once every three years. Section 300.536.

C. The Evaluation Team

An evaluation team consists of an "IEP team" and "other qualified professionals, as appropriate." See 34 C.F.R. 300.533. The role of the evaluation team is to review the results of the testing and to determine eligibility as a child with a disability.

Pursuant to 34 C.F.R. 300.534(a) upon completing the administration of tests and other evaluation materials the public agency must provide a copy of the evaluation report and the documentation of determination of eligibility to the parent. The failure to inform the parents of evaluation results can be fatal to the subsequent IEP development process. In Amanda J. by Annette J. v. Clark County School District, 35 IDELR 65 (9th Cir. 2001) the Ninth Circuit Court of Appeal ruled that the School District made it impossible to design an IEP that addressed the student's unique needs when it did not provide her parents with copies of the evaluation reports. The fact that the parents did not have access the reports precluded them from meaningfully participating in the IEP development process for their daughter.

D. The Evaluation Timeline

The State Regulations require that, upon receipt of a referral from any source, and prior to evaluation of a child suspected of having a disability, a district must compose an IEP team which shall immediately notify the parent, in writing, of the referral. Ed. 1107.02(b). Within fifteen (15) days of the referral, the IEP team is to determine whether the concerns raised by the referral can be addressed utilizing existing student support services available to all children, whether additional information must be gathered, and, what testing, if any, is needed to address any unresolved concerns. Ed. 1107.02(b). The evaluation process, including a written summary report, must be completed within forty-five (45) calendar days. Any extension requires written parental consent. See Ed 1107.04 (d).

E. Evaluation Team Notice

Within fifteen (15) days of the referral, the IEP team is to give the parent written notice of the disposition of the referral, in a form clearly understandable to parents, which complies with the requirements of Ed. 1125.03(b)-(d), (written prior notice), and includes a description of the district's special education procedures. Ed. 1107.02 (c). If additional testing has been determined to be necessary, the notice must also include a request for written consent to any individual evaluations needed. Id. If the parents and district disagree about the IEP team's disposition of the referral or the district's request for consent to evaluation, either party may commence due process procedures. Ed. 1107.02(e)-(f). Written parental consent is also required prior to conducting an individual evaluation to further diagnose the needs of a child who has already been determined to have a disability. Ed. 1107.02(g).

F. Evaluation Team Report

The IEP team determining a child's disabilities must develop a written summary containing the results of the diagnostic findings and forward a copy of the report to the parent. The report shall be written after the initial evaluation and at least every three (3) years thereafter. Ed. 1107.05 (a). The report must include, but is not limited to: (i) the results of each evaluation procedure, test, record or report; (ii) a written summary of the findings of each procedure, test, record or report; and (iii) information regarding the parent's appeal rights and right to an independent educational evaluation. Ed. 1107.05 (b) (3).

G. Re-evaluations

Section 300.536 pertains to re-evaluations, and requires that a re-evaluation be conducted: (1) if conditions warrant a re-evaluation, or (2) if the child's parent or teacher requests a re-evaluation, and, (3) in any case, at least once every three years. The State Regulations require districts to comply with the Federal Regulations pertaining to re-evaluations.

H. Eligibility Determination

1. Who Makes the Eligibility Determination?

The eligibility decision must be made by a "group of qualified professionals" and the parents. The State Regulations identify this as an "IEP Team" which must also include:

See Ed 1107.01 (c) (1) and (2).

2. How Is The Eligibility Decision Reached?

With respect to procedures for determining eligibility and placement, the Federal Regulations provide that a school district, in interpreting evaluation data for the purpose of determining if a child has a disability, must draw upon information from a variety of sources, including tests, teacher recommendations, physical condition, social or cultural background, and adaptive behavior. Section 300.535. This provision now requires that a district consider parent input as one source of information. Section 300.535 (a)(1).

Practice Pointer:

The role of parental input has always been valued by schools that understand parents are their constituents. This provision simply codifies the "best practice." Those schools that elect to act contrary to the parental input must document an objective basis for disagreement with the parental input.

The State Regulations simply require that districts comply with the applicable Federal Regulations, (Section 300.530-543), in making eligibility determinations. See Ed 1107.01 (b).

The Federal Regulations governing determination of eligibility also provide that a child may not be determined to be eligible under the IDEA if the determinative factor for the eligibility determination is either

(1) lack of instruction in reading or math, or

(2) limited English proficiency, and

(3) the child does not otherwise meet the eligibility criteria under the section of the Regulations defining child with a disability.

See Section 300.534.

Practice Pointer:

Schools should be cautious upon making a decision that a child is not eligible because the problems identified relate primarily to a lack of instruction in reading or math. If the team determines that a child has been deprived of reading or math instruction, the team should consider whether compensatory education should be provided to the child, e.g., in the form of tutoring. The student's deprivation should not go unremedied.

This section also requires districts to evaluate a child's disability before determining the child is no longer a child with a disability and terminating special education or related services. However, a re-evaluation, to determine that the child is no longer a child with a disability, is not required before termination of a student's eligibility under the IDEA due to either graduation with a regular high school diploma, or due to exceeding the age eligibility for FAPE under State law. Section 300.534 (c)(2).

I. Additional Procedures for Evaluation of Children with Specific Learning Disabilities

The determination of whether a child suspected of having a specific learning disability is a "child with a disability," as defined in the Federal Regulations, must be made by the child's parents and a team of qualified professionals. In addition to the regular team, this team must also include the child's regular teacher or, if the child does not have a regular teacher, a regular classroom teacher qualified to teach a child of his or her age. Section 300.540 (a). The Federal Regulations also require that the team include at least one person qualified to conduct individual diagnostic examinations of children, such as a school psychologist, speech language pathologist, or remedial reading teacher. Section 300.540 (b).

The State Regulations applicable to the make-up of the evaluation team for children suspected of having a specific learning disability, mirror the Federal Regulation's requirements. Federal Regulations, as well as the State Regulations, set forth specific criteria the team must consider in making the determination of the existence of a specific learning disability. See Section 300.541; Ed. 1107.06.

By definition the team must consider the following areas: oral expression, listening comprehension, written expression, basic reading skill, reading comprehension, mathematics calculation and mathematics reasoning. The team must make two findings:

As discussed earlier in this material the team may not identify a child as having a specific learning disability if the discrepancy between ability and achievement is the result of: (1) a visual, hearing or motor impairment; (2) mental retardation; (3) emotional disturbance; or (4) environmental, cultural or economic disadvantage.

The requirement of a severe discrepancy is not synonymous with an educational weakness. In Welton v. Liberty 53 School District, 35 IDELR 63 (W.D. Mo. 2001) a high school student had a diagnosed learning disability in the area of written expression. The parents argued that the student had disabilities in reading and math that were not addressed in his IEP. The court indicated that educational weaknesses are not synonymous with a "severe discrepancy" and affirmed the decision of hearing officer limiting the scope of eligibility and disability to the area of written expression.

Practice Pointer:

The discrepancy between achievement and intellectual ability must be "severe."

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III. Individualized Education Programs

The new State Regulations adopt the Federal Regulations pertaining to Individualized Education Programs. An IEP is required to comply with 34 C.F.R. 300.340 - 300.350. The content requirements for an IEP remain essentially the same. However, it is important to note that, in keeping with the legislative inclusionary model, the IEP's annual goals, including bench marks or short term objectives must be related to "meeting the child's needs that result from the child's disability to enable the child to be involved in and progress in the general curriculum (i.e. the same curriculum as for non-disabled children), . . . as appropriate, to participate in appropriate activities." 34 C.F.R. § 300.347. The content standards set forth in 34 C.F.R. § 300.347 are all driven by the fundamental assumption that the IEP should relate to the student's participation in the general curriculum whenever possible.

A sufficient IEP contains the following components:

A. When IEPs Must Be in Effect

At the beginning of each school year the district is required to have an IEP in effect for each identified child within its jurisdiction. The IEP is a prerequisite to the provision of special education and related services to an eligible child. According to 34 C.F.R. § 300.342 an IEP must be implemented "as soon as possible following the meetings to develop the IEP."

The IEP must be accessible to each regular education teacher, special education teacher, related service provider and other service provider who is responsible for its implementation. Each teacher and service provider must be informed of his or her specific requirements related to implementing the child's IEP and the specific accommodations, modifications and supports that must be provided to the child.

B. The Individualized Family Service Plan (IFSP)

In the case of a child with a disability age three (3) through five (5) the district may offer an Individualized Family Service Plan rather than an IEP. The IFSP must be agreed to by the district and the child's parents. The district is required to provide the child's parents a detailed explanation of the differences between an IFSP and an IEP and if the parents elect an IFSP obtain written informed consent from the parents.

An inadequate IFSP can create just as much exposure for private services as an inadequate IEP. In DeMora v. Department of Public Welfare (PA), 34 IDELR p. 85 (SEA Decision March 1, 2001). The hearing officer ruled that the parents were entitled to reimbursement for their private expenses in providing their daughter with Lovaas training. The hearing officer imposed the burden of proof on the school district to demonstrate that its IFSP produced meaningful progress towards the plan's goals. While the district made progress in some areas of the plan it was unable to demonstrate the student's meaningful progress in the areas of occupational therapy, speech therapy and special instruction. This constituted the basis for the district's reimbursement duty.

Practice Pointer:

An inappropriate IFSP is just as dangerous as an inappropriate IEP.

C. IEP Meetings

The district is responsible for initiating and conducting meetings for the purposes of developing, reviewing and revising an IEP. In New Hampshire the district is required to conduct an evaluation within forty-five (45) days after receipt of the parental permission to test. The district is then required to hold a meeting to develop an IEP within thirty (30) days of a determination that the child needs special education and related services.

D. Review and Revision of IEPs

The district is required to review a child's IEP periodically "but not less than annually," to determine whether the annual goals for the child are being achieved and must revise an IEP as appropriate to address any lack of expected progress toward annual goals as well as any lack of expected progress in the general curriculum if appropriate. An IEP must also be revised to address the results of any reevaluation or information about the child provided to, or by the parents. Finally, an IEP should be revised to address a child's anticipated needs.

E. The IEP Team

The district is required to ensure that the IEP team for a child includes:

(1) the parents of the child;

(2) one regular education teacher (if the child is, or may be participating in the regular education environment);

(3) one special education teacher or if appropriate at least one special education provider;

(4) a representative of the LEA who:

(i) is qualified to provide or supervise a provision of specially designed instruction to meet the unique needs of children with disabilities;

(ii) is knowledgeable about the general curriculum; and

(iii) is knowledgeable about the availability of resources of the LEA;

(5) an individual who can interpret the instructional implications of evaluation results. This person may be one of the individuals listed in 2 through 6 of this section;

(6) at the discretion of the parent or LEA "other individuals who have knowledge or special expertise regarding the child, including related services personnel is appropriate; and

(7) if appropriate, the child.

See 34 C.F.R. 300.344(a).

The lack of a duly constituted IEP team can be fatal. For example, in the case of Board of Education of the Star Point Central School District, 37 IDELR 120 (SEA NY 2002) the IEP team lacked a regular education teacher. On the basis of that procedural deficit, the Hearing Officer voided the District's 2000-2001 IEP for a 13 year old home schooled student with multiple disabilities and ordered the District fund six months of vision therapy from a local optometrist. See also Board of Education of the North Salem School District, 36 IDELR 108 (SEA NY 2001) (Regular education teacher attended one of the IEP meetings, but was not present when the team made its final decision on the child's program, Hearing Officer invalidated IEP and awarded reimbursement for private school placement).

F. Transition Service Participants

When the purpose of an IEP meeting is to address transition services the district is required to invite the student to attend his or her IEP meeting. If the student does not attend the IEP meeting the district shall "take other steps to ensure that the student's preferences and interests are considered." 34 C.F.R. § 300.342.

G. Parent Participation in IEP Meetings and IEP Development

Federal law requires that districts shall take steps to ensure that one or both of the parents of a child with a disability are present at each IEP meeting. This effort includes notifying parents of the meetings early enough to ensure that they will have an opportunity to attend; and scheduling the meeting at a mutually agreed on time and place. The notice provided to the parent must:

(1) indicate the purpose, time and location of the meeting and who will be in attendance; and

(2) inform the parents that they may invite "other individuals who have knowledge or special expertise regarding their child."

The District must take steps to ensure that the parents participation in the IEP meeting is meaningful. For example, when the District failed to show the parent had copies of the evaluations concerning her son that were discussed at the IEP meetings or that she had read the reports prior to the meeting, the Hearing Officer ruled that the IEP created at the meeting was "a nullity" finding that the parents lack of meaningful participation was the equivalent of an improperly constituted team. See Board of Education of the City School District of the City of New York, 36 IDELR 228 (SEA NY 2001).

In those cases where the student with a disability is age fourteen (or younger if appropriate) the notice to the parents must also indicate that a purpose of the meeting will be the development of a statement of transition service needs and that the district will invite the student. With regard to children with a disability beginning at age sixteen (or younger if appropriate) the notice must indicate that the consideration of further transition services, indicate that the district will invite the student, and identify any other agencies invited to send a representative.

If neither parent can attend an IEP meeting the district can conduct the meeting through individual or conference telephone calls.

Under certain circumstances a meeting may be conducted without a parent in attendance. A meeting may be conducted without a parent in attendance if the district is unable to convince the parents that they should attend. In this case the district must make a record of its efforts to arrange a mutually agreed upon time and place such as:

(1) detailed records of telephone calls made or attempted and the results of those calls;

(2) copies of correspondence sent to the parents and any responses received; and

(3) detailed records of visits made to the parents' home or place of employment and the results of those visits.

For example, in the case of Modesto City Schools, 37 IDELR 167 (OCR, San Francisco (CA) 2002) the School District was able to demonstrate its efforts to invite parents to a section 504 meeting by submitting evidence of certified mail receipts indicating efforts to deliver notice.

The law clearly requires the use of interpreters or other action as appropriate in those cases where the parents are deaf or their native language is other than English. Parents are entitled to a copy of their child's IEP at no cost.

H. Development Review and Revision of the IEP

The State standards for development review and revision of an IEP remain similar to the prior State standards. The regular education teacher is a member of the IEP team and must, to the extent appropriate, participate in the development, review, and revision of the child's IEP, including assisting in the determination of:

(1) appropriate positive behavioral interventions and strategies for the child; and

(2) supplementary aids and services, program modifications or supports for school personnel that will be provided for the child.

Therefore, it is critical that the regular education teacher participate in IEP development.

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IV. "No Child Left Behind" and Its Impact on IDEA

The implementation of the No Child Left Behind Act will have an impact on those individuals providing services under the Individuals with Disabilities Education Act. The accountability standard set forth in the Act indicate that "Adequate Yearly Progress" ["AYP"] must include the achievement of students with disabilities." The No Child Left Behind Act of 2001 maintains the same general accountability structure as the 1994 Elementary and Secondary Education Act ["ESEA"] reauthorization. However, the No Child Left Behind Act includes the following significant changes in the area of accountability:

PROCEDURAL SAFEGUARDS, COMPLAINTS, MEDIATION AND DUE PROCESS

OVERVIEW

The purpose of this material is to provide the educator with a general understanding of the procedural safeguards afforded parents under the state regulations and IDEA. The second purpose of this material is to provide the educator with an understanding of the tools available under our state regulations for the resolution of disputes in special education matters. This material is not a substitute for wise legal counsel and therefore, educators are heartily encouraged to seek the advice of their legal counsel in any particular matter.

I. Least Restrictive Environment (LRE)

The Federal Regulations governing Least Restrictive Environment, ("LRE"), require districts to 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 non-disabled. Removal of children with disabilities from the regular educational environment may occur 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. Section 300.550.

The 1997 reauthorization of the IDEA now requires a justification from the IEP team as to why a student is not participating in the general education class and curriculum. The applicable State Regulations essentially mirror the Federal Regulations on LRE. Ed. Sec. 1115.01, 1105-06. To the extent possible, educators are required to afford special education students opportunity to participate in the general curriculum. A 1999 amendment to the Federal Regulations clarifies that LRE requirements do not apply to a disabled student who was convicted as an adult under state law and who is incarcerated in an adult prison. See also NH RSA 194:60.

The case of West Springfield Schools, 37 IDELR 147 (SEA MA 2002) illustrates the tension between offering an appropriate placement and maximizing contact between disabled and nondisabled students. In West Springfield, a 14 year old student had multiple severe lifelong disabilities including moderate to severe retardation, visual impairment, tic disorder, autism and behavioral difficulties. In addition, the student had profoundly severe aeroallergenic asthma/dypsnia and IEG syndrome which required a climate controlled environment and frequent health status monitoring. The School District proposed an IEP which called for the student's placement in a separate classroom at West Springfield High School which would be air conditioned. The parents argued that a private special education school was the least restrictive setting in which the student could receive the "maximum feasible benefit" from her education.⁽⁶⁾ The hearing officer concluded that the District's IEP met the student's need for a climate controlled atmosphere, but also offered her the opportunity to interact with her peers. The Hearing Officer's decision turned in great part on the fact that the child would be able to maintain contact with other nondisabled students.

A second example of the LRE principal in action can be found in the case of Hanson v. Smith, 37 IDELR 153 (D. MD. 2002). In Hanson, the District proposed placement in their new special education program which was designed to serve students with learning disabilities. The parents desired that their 12 year old child with multiple disabilities including significant language based deficiencies, remain at his private school. The court found for the District citing testimony that the student would benefit from the mainstreaming opportunities presented by the District's program. I have noticed the fact that the court also affirmed the District's entitlement to waive financial considerations when determining placement so long as its proposal offered FAPE in the LRE.

Finally, in Wrentham Public Schools, 37 IDELR 200 (SEA MA 2002) the District's proposed IEP called for placement of a sixth grader with speech language deficits in a regular education classroom with the accompanying use of supplemental aids and services. The Hearing Officer rejected the parents' proposal of a private school setting on the basis of the presumption that whenever there is a reasonable likelihood that a student with a disability can be educated appropriately in a regular classroom through modifications, then the regular classroom placement should be tried.

The presumption in favor of educating students in the regular classroom setting is certainly rebuttable. For example, when a child regresses, the Hearing Officer may conclude that inclusion is not an option. In Tuscaloosa County Board of Education, 36 IDELR 195 (SEA AL 2002) the student regressed in his inclusion setting and has seen an increased number and intensity of seizures. The teacher testified that he avoided other children and had poor peer interaction. On that basis, the Hearing Officer opted for placement at a developmental center which, though more restrictive, would offer the student FAPE in the least restrictive alternative.

There have been a number of cases over the past year where districts have advocated more restrictive placements and those more restrictive placements were opposed by the parents. In the majority of those cases a Hearing Officer opted for the District's recommendation of a more restrictive setting.

Our First Circuit has continued to uphold the general premise that behaviors observed at home will not necessarily justify a residential placement. In Gonzalez v. Puerto Rico Department of Education, 34 IDELR 291 (1st Cir 2001) the First Circuit affirmed the proposed public school placement holding that, despite conflicting testimony, there was sufficient support for the Hearing Officer's determination that the student did not require a residential setting. The court affirmed the decision of the lower court which, while not dismissing the significance of the student's home based problems, determined those problems did not affect the student's ability to learn to such an extent as to require residential placement.

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II. Placement

Federal Regulation Section 300.552 governs the determination of the placement of a child with a disability. This Regulation requires that the placement decision be made by a group of persons, including the parents, who are knowledgeable about the child, the meaning of the evaluation data, and the placement options. Section 300.552 (a)(1). This Regulation further requires that the child's placement be determined at least annually, be based on the child's IEP, and be as close as possible to the child's home. Section 500.552 (b). The applicable State Regulation, for the most part, contain the same requirements as the Federal Regulations. Ed. 1115.02-1105.05.

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III. Modifications do not Mandate Removal

Both the Federal and the State Regulations state that districts must ensure that "a child with a disability is not removed from education in age appropriate regular classrooms solely because of needed modifications in the general curriculum." Section 300.552(e); Ed. 1115. Unless the IEP requires some other arrangement, the child should be educated in the school that he or she would attend if non-disabled, i.e., the child's neighborhood school. This particular Regulation raises concern with whether it is permissible to place a child in a non-neighborhood school, if that placement cannot be justified entirely by the child's needs as identified in the IEP. For example, the Americans with Disabilities Act, (ADA), and the law under Section 504, may allow a District to place a child in a non-neighborhood school because of physical accessability. In that case, a student who is placed in a non-neighborhood school to facilitate access to the school building would not be denied rights under the IDEA, since the child's need for modifications in the general curriculum was not the reason for the removal from the neighborhood school.

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IV. Notice

A. When Notice is Required

Districts are required to give notice to parents prior to proposing to initiate or change, or refusing to change, an identification, evaluation, placement, or provision of a FAPE. There are several provisions of this Regulation which merit attention. First, the Federal Regulation requires that notice be given to the parents within a "reasonable time" before the public agency makes a change or refuses to make a change. Section 300.503 (a)(1). Note that the State Regulation requires the district to "immediately" notify the parent upon receipt of a referral, and a notice of disposition must go out within fifteen (15) days of the district having received a referral for special education, identification or evaluation. Ed. 1107.02 (b) and (d).

The State Regulations also require that notice be given not less than fourteen (14) days prior to the district's proposed initiation or change, or refusal to initiate or change, the identification, evaluation or placement of a child with a disability. Ed. 1125.03 (a). The parent and district may agree to extend the fourteen (14) day time limit. Id. Notice must also be provided when transition will be a topic addressed at an IEP meeting. This notice must indicate that the student will be invited to attend, as will representatives of agencies that may be responsible for providing transition services.

B. Contents of Notice

The substantive requirements for the content of the notice include: a description of the action proposed or refused by the district; an explanation of why the district proposed or refused to take the action; a description of other options the district has considered and reasons for rejection of these options; and a description of evaluation procedures, tests or reports that the district used in making its decision. Section 300.503; Ed. 1125.03. In addition, the district must provide a statement that the parents have protections under the procedural safeguards of the IDEA and Federal Regulations, and, if the notice is not an initial referral for evaluation, the means by which a copy of a description of procedural safeguards can be obtained. Section 300.504; Ed. 1125.03 (b). Thus, a complete copy of the procedural safeguards description should be provided with all initial referral notices. Furthermore, the notice must also provide resources for parents to contact to obtain assistance in understanding the purpose of the IDEA and the regulations promulgated under that Act. Section 300.503 (b).

Practice Pointer:

Some case managers tend to use "boilerplate" descriptions for the reasons for rejecting a particular option. These descriptions can readily become the "Achilles heel" for a district that is subsequently required to defend a decision.

Another section of the Federal Regulations requires districts to provide notice in a language or method of communication understandable to the parent. The Regulation specifically states that if the native language or other method of communication of the parent is not a written language, the district must maintain written evidence that it has met the requirement that the notice be provided orally, or in another method understandable to the parent, and that the parent understands the content of the notice. Section 300.503 (c). Thus, it is not enough for a district to simply take the action to communicate the notice to the parent, but there must be written proof in the file that documents the steps that were taken to communicate the notice to the parent and to ensure his or her understanding.

C. Procedural Safeguards Notice

Section 300.504 governs the procedural safeguards notice. At a minimum, districts must provide a copy of the procedural safeguards notice to the parent upon any of the following events: (1) initial referral for evaluation; (2) each notification of an IEP meeting; (3) re-evaluation of the child; and (4) receipt of a request for a due process hearing. Copies of the procedural safeguards description should be maintained by district personnel and should be readily available to parents.

Practice Pointer:

Many districts have a practice of offering the full Booklet of Parental Rights at every meeting. Arguably, once the parents have one booklet, the rights notice on the written prior notice is sufficient. Proof of the written prior notice having been sent with a procedural rights notice can avoid the cumbersome step of documenting at each subsequent meeting that the parental rights were explained or offered.

The procedural safeguards notice must include a full explanation of all of the procedural safeguards available under the Federal Regulations and, pursuant to a recent amendment, the state complaint procedures available under the Regulations. Section 300.504 (b). The notice must include the procedural safeguards available relating to: (1) independent educational evaluations; (2) prior written notice; (3) parental consent; (4) access to educational records; (5) opportunity to present complaints to initiate a due process hearing; (6) the child's placement during the pendency of due process proceedings; (7) procedures for students who are subject to placement in an interim alternative educational setting; (8) requirements for unilateral placement by parents of children in private schools at public expense; (9) mediation; (10) due process hearings, including requirements for disclosure of evaluation results and recommendations; (11) state level appeal; (12) civil actions; (13) attorneys' fees; and (14) state complaint procedures, including a description of how to file a complaint and the timelines under those procedures. Of course, the Regulation also provides that the notice must be in a language understandable to the parent.

Practice Pointer:

A significant problem that many districts are encountering is that they are not yet informing parents of their rights and obligations with regard to unilateral placement. Schools should supplement their current rights pamphlets with updated disclosures with regard to the parental rights and obligations that attach to unilateral placement decisions. The failure to do such has adverse state and federal consequences. Under the IDEA, the district loses some key procedural defenses. Under 186-C:16-b,III, the district loses the protection of a key time limitation on due process requests for reimbursement.

The State of New Hampshire has indicated that absent capacity, rights transfer to the adult student at the age of majority. See Bureau of Special Education, FY '01, Memo #6, New Hampshire Department of Education (October 18, 2000). As a result, at least one year before a student reaches the age of majority under New Hampshire law the student's IEP must include a statement that the student has been informed of his or her rights under Part B of the IDEA and that rights will transfer to the student on reaching the age of majority.

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V. Consent

A. "Informed Consent"

The Federal Regulation requires "informed" parental consent before conducting an initial evaluation or re-evaluation, and before the initial provision of special education and related services to a child with a disability. Section 300.505. The recent addition of the term "informed" indicates that the Department of Education believes it is not enough to just obtain parental consent, but rather, that districts have an affirmative obligation to educate the parent as to the action proposed to be taken. The doctrine of "informed consent" has long been used in the physician-patient context to imply a significant burden upon the physician to ensure that the patient is made fully aware of all ramifications of the proposed treatment and that the physician is satisfied that the patient is capable of making an informed decision as to whether to consent to the treatment. The Department's decision to add the word "informed" indicates that the Department is placing a significant burden on districts to ensure that the parent is not simply told about the proposed action, but also that the parent has the ability to consider the proposed action and weigh the consequences of assenting to the proposal.

The State Regulations currently require written, informed parental consent for the same purposes as the Federal Regulation, but also require parental consent prior to annual renewal of the IEP and placement, determining or changing the disability classification, and changing the nature or extent of the special education or related services. Ed. 1125.04.

Practice Pointer:

The team meeting is the forum for ensuring that parental consent is informed consent. The case manager should take the time to discuss the proposed action in the context of other alternatives. The minutes/notes of meeting should specifically indicate that the parents were informed of the nature of the decision being recommended by the team and that they were given an opportunity to ask questions.

B. Revocation of Consent

The definition of "consent" indicates that a revocation of consent does not have retroactive effect if the action consented to has already occurred. That is, revocation of consent does not negate an action that has occurred after the consent was given, and before the consent was revoked. Section 300.500 (b)(1)(iii)(B).

Practice Pointer:

In the past, one of the first steps that advocates have taken in assuming a new matter has been to revoke all prior consents. This new provision avoids the unnecessary ambiguity previously created by such a revocation.

C. Consent Unnecessary for Data Review

Parental consent is not required before reviewing existing evaluation data as part of an evaluation or re-evaluation, or for administering a test used with all children, unless consent is otherwise required from all parents. Section 300.505 (a)(3).

D. Beware of "Linkage"

The Federal Regulations specifically state that a district may not use parental refusal to consent to one service or benefit to deny the parent or child another service or benefit. Section 300.505 (e).

Practice Pointer:

This provision may have implications for teams that have tried to link service decisions. For example, the team may have used parental refusal with regard to one service as a basis for stalling the IEP/Placement decision. This provision may have implications for how a district approaches an adversary proceeding. As a general rule, schools should be willing to provide all services that are not in dispute.

E. Parental Failure to Respond to Written Prior Notice

A parent has fourteen (14) days in which to respond to a written prior notice. Parental consent is required as a prerequisite to conducting an initial evaluation and the initial provision of special education and related services to a child with a disability. Provided a parent has taken reasonable measures to obtain informed written consent, the LEA may, after fourteen (14) days, implement the following proposed changes: annual renewal of the IEP and placement of a child with a disability; determining or changing the disability classification; changing the nature or extent of the special education or special educationally related services; or conducting a re-evaluation. Reasonable measures to obtain consent are defined as: documentation of telephone calls to the parent made or attempted and the results of those calls; and copies of correspondence sent to the parent and any responses received, which correspondence shall be sent certified mail return receipt requested. The parents failure to respond does not necessarily vitiate their right to a due process hearing. See Ed 1125.06; see also Sec. 300.505 (c).

Practice Pointer:

This documentation should include written letters, follow-up letters and telephone logs with memoranda to the file.

F. Five "Deadly Sins" in Regard to Procedural Safeguards

The following "deadly sins," are illustrative of the consequences of failing to provide parents with their procedural safeguards.

1. Failure to hold an IEP conference upon parental request.

In Knable v. Bexley City School District, 34 IDELR 1 (6th Cir 2001) the District met informally on a number of occasions to discuss with parents possible placement options for the student. However, the meetings did not rise to the level of an IEP conference. On the basis of the District's failure to conduct an IEP conference the Sixth Circuit awarded reimbursement for residential placement costs to the parents.

2. Failure to Timely Request Due Process After Parental Request for an Independent Educational Evaluation.

In Coeur d'Alene School District No. 271, 35 IDELR 261 (SEA ID 2001) the Hearing Officer concluded that a School District's failure to timely request due process in response to a parent's request for an Independent Educational Evaluation triggered the parent's entitlement to the Independent Educational Evaluation.

3. Failure to Notify Parents of Due Process Rights During Alternative School Assignment Triggers Compensatory Education Award.

In Walker County Board of Education, 35 IDELR 45 (SEA AL 2001) the School District was aware of a student's disability, but failed to notify his parents of their due process rights after the student was suspended and transferred to an alternative school. The Hearing Officer awarded 30 days of compensatory education as a result of the District's violation of the student's right to stay put.

4. Cumulative Suspensions Without Procedural Safeguard Notices.

In Green County Board of Education, 36 IDELR 144 (SEA AL 2002) an unidentified student was suspended for a cumulative total of 19 days. Despite the fact that the cumulative total of the suspension days exceeded 10, the District failed to provide the parent with a procedural safeguard notice. The Hearing Officer found this lack of notice sufficient grounds for awarding 7 days of compensatory education.

5. Unilateral Changes in Placement Without Notice of the Right to Due Process.

In a text book illustration of what not to do, the Oktibbeha County School District, 37 IDELR 57 (SEA MS 2002) made a unilateral decision to transfer a student with multiple disabilities to another district. The Hearing Officer had no difficulty finding that this constituted a change of placement which should have triggered IDEA safeguards, particularly a notice to the parents of the right to seek due process.