Regulations for the Education of Students with Exceptionalities

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IDEA Regulations Revised Individuals with Disabilities Education Act

regulations revised December 1, 2008 Effective December 31, 2008

Parent right to revoke consent for special education and related services

Codified requirement to correct noncompliances as soon as possible and no later than one year after notification

Representation at due process hearing by nonattorneys

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Why revise Policy 2419?

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Revised Policy 2419

Policy and guidance documents are posted on the OSP Web site:

http://wvde.state.wv.us/osp/policy2419.html

Policy also is posted on the WVBE Web site:wvde.state.wv.us/policies

Procedural safeguards regarding parent right to revoke consent have been revised by WVDE

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Revisions Parent right to revoke consent Student Assistance Teams Prior written notice Eligibility criteria – gifted and mental impairment Dates for Response to Intervention implementation IEP considerations Testing accommodations and APTA criteria moved

to Participation Guidelines document Least restrictive environment PreK caseloads Discipline Due process hearings and mediation

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Prior Written Notice (PWN) Changes made throughout the policy to

create consistency General timeline for provision of PWN

changed to 5 days (previously 10 days)In response to comments that 10 days often

was an unnecessary delayTo ensure consistent ruleDisciplinary removal resulting in change of

placement requires same day PWN

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Chapter 1 – Free Appropriate Public Education

Page 6 - Medicaid consent procedures revised, consistent with OSEP clarification

Consent documentation must be obtained from parent prior to disclosing student records and billing Medicaid

Specific services, extent, frequency and duration of services documented

Revised and parent consent obtained if billable services change

Consent may be, but need not be, requested at an IEP meeting; may obtain consent without convening an IEP meeting

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Chapter 1 – Free Appropriate Public Education

Page 7 – Clarifies the term “standard diploma” does not include:

Modified diploma General Educational Development

credential (GED)

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Chapter 2 – Child Find Page 9 - Referral sections reorganized and

streamlined Clarifies referrals may be made by any

interested person or agency; evaluations may be initiated only by parent or district

Clarifies who receives and processes referral.

Policy 2419 addresses SAT for purpose of considering referrals for special education, however, SAT has other purposes not involving special ed referrals, to which timelines would not apply.

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Chapter 2 – Child FindStudent Assistance Team Pages 9-10 - The SAT may:

Conduct problem-solving processProcess written referrals for special

educationRespond to parent request for initial

evaluation and provide prior written notice

Initiate initial evaluation when warranted based on outcome of interventions, response to a parent request, or when apparent disability warrants immediate attention

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Processing Special Ed Referrals Within 5 school days of receipt of written

referral for evaluation, notify team members.

Within 10 days, conduct review of concerns, data and interventions (if any) and make a determination of further action

Must invite parents to review recommendations.

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Conducting the SAT Problem-Solving Process:

1. Initiate, continue or modify interventions within a timeline established for the student by the SAT;

2. Review the effectiveness of the SAT’s recommendations within the timeline established for the student, but in no case may the review take place beyond forty-five school days;

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SAT Problem-Solving Process (con’t)

3. Ensure problem solving activities of the SAT are not used to delay processing a request for initial evaluation where immediate action is warranted; and

4. Close the problem-solving process when appropriate based on results of interventions: or

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Initiate (or Refuse) an Evaluation

1. Request an initial evaluation, in cases where warranted, for example, a sensory impairment or other significant disability requiring immediate attention or when presented evidence and documentation of previous interventions sufficient to make a decision; or

2. When a written request for initial evaluation has been initiated by the parent, determine whether the evaluation will be conducted, and provide prior written notice of the decision and a copy of the procedural safeguards to the parent.

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Prior Written Notice

Within five days of SAT decision to request multidisciplinary evaluation, provide PWN and procedural safeguards to parent and request consent for evaluation

SAT may serve as the multidisciplinary team if it has appropriate members or another group may be designated.

Principal, teacher or other designee documents date consent is received

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Chapter 3 - Evaluation Page – 14 - PWN required when

responding to parent request for additional evaluation

Upon receipt of a written parental request for an additional evaluation, the IEP team considers the request, with or without holding a meeting, and within ten days of receipt provides prior written notice of its response. If the evaluation is conducted, the aforementioned timelines apply.

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Chapter 3 - Evaluation

Page 15 - PWN required when requesting parent consent for evaluation/reevaluation

Page 16 - Written consent requested within five days of decision to evaluate

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Chapter 4 - Eligibility Page 19 - Eligibility Committee must convene

within 80 days of parent consent or after completion of reevaluation

Provide parents of students with sensory impairments information pertaining to WV Schools for the Deaf and the Blind (p. 20)

Page 26 - Gifted eligibility criteria:If student’s general intellectual ability score is

unduly affected by performance in one or more composite scores, an alternate general ability index or individual composite measure may be used as permitted in test manual

Individualized Student Transition Plan for gifted in grades 9-12 consistent with Policy 2510 (p. 27)

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Chapter 4 - Eligibility

Criteria for mental impairment revised per clarification (p. 28)Mild/moderateModerate/severe

Aligns with certification patterns and provides flexibility in determination based on adaptive functioning

RTI timelines revised per clarification (pp. 30 and 36)

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RTI

Page 31 - Students who do not achieve mastery on essential or critical grade-level skills, as substantiated by assessment results, are identified for additional supports and interventions at Tier 2.

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Chapter 5 - IEP

Page 43 - When the IEP team and parent do not reach consensus, the district representative makes the decision and provides PWN to parent at conclusion of the meeting

Clarifies IEP team must conduct manifestation determination within ten days of disciplinary removal resulting in change of placement

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Chapter 5 - IEP Pages 46-47 - Reorganizes IEP

considerations to reflect order in IDEA regulations

Changes WESTEST to WESTEST2 Page 51 - Deletes sections duplicated in

Guidelines for Participation of Students with Disabilities in State Assessments – requirements still in effect but now found only in the guidelines posted at:

http://wvde.state.wv.us/oaa/filecabinet.html#federal

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Chapter 5 - IEP Page 52-53 - Least restrictive environment

Reorganizes and removes repetitionClarifies that continuum of placements must be

availableClarifies that placement in LRE is decided after

all other parts of the IEP are completed and is based on student’s needs

Adds placement may not be based on availability of placement options, services, staff or space – similar to previous Policy 2419 requirements

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Parent Right to Revoke Consent Prior to IDEA, federal regulations required

parent to file a due process hearing to remove a child from special education services

Districts were reluctant to remove a child due to free, appropriate public education requirement

IDEA regulations had been interpreted by Office of Special Education Programs (OSEP) to allow parent choice

December 1, 2008 codified the parent’s right, effective December 31, 2008

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IDEA, 34 CFR §300.300

(3) If the parent of a child fails torespond to a request for, or refuses toconsent to, the initial provision ofspecial education and related services,the public agency—(i) May not use…mediation procedures under

§ 300.506 or the due process procedures under §§ 300.507 through 300.516 in order to obtain agreement or a ruling that the services may be provided to the child;

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IDEA, 34 CFR §300.300

Will not be considered to be inviolation of the requirement to makeFAPE available to the child because ofthe failure to provide the child with thespecial education and related servicesfor which the parent refuses to or failsto provide consent; and(iii) Is not required to convene an IEPTeam meeting or develop an IEP under§§ 300.320 and 300.324 for the child.

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IDEA, 34 CFR §300.300

(4) If, at any time subsequent to theinitial provision of special educationand related services, the parent of achild revokes consent in writing for thecontinued provision of specialeducation and related services, thepublic agency—(i) May not continue to providespecial education and related services tothe child, but must provide priorwritten notice in accordance with§ 300.503 before ceasing the provision ofspecial education and related services;

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(ii) May not use …mediation procedures under § 300.506

or the due process procedures under §§ 300.507 through 300.516) in order to obtain agreement or a ruling that the services may be provided to the child;

(iii) Will not be considered to be in violation of the requirement to make FAPE available to the child because of the failure to provide the child with further special education and related services; and

(iv) Is not required to convene an IEP Team meeting or develop an IEP

IDEA, 34 CFR §300.300

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Consent for Initial Placement and Revoking Consent – Pages 56-57 Parent or student to whom rights have

transferred must revoke consent in writing

Provide PWN within five days of receipt of written revocation to parent regarding termination of services

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Implications of Revocation Amendment of records not required Age of majority – student to whom rights have

transferred may revoke consent, however, also parents receive PWN

Consent may not be revoked for a particular service

Subsequent request for evaluation after services have been terminated is treated as initial evaluation

The student is no longer entitled to special discipline rules

The student no longer receives IEP accommodations in general education environment

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Disagreement on Particular Service Initial consent is for special education and

related services, not for a particular service When consent is revoked, it is for all

special education and related services If a parent wishes to terminate a specific

service, IEP team considers whether FAPE can be provided without it, and, if so, may remove the service from the IEP

If the IEP team refuses to remove the service, the parent may use due process hearing to resolve the issue

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PWN and IEP – Page 57At the conclusion of the IEP Team meeting, provide the parent or adult student prior written notice and a copy of the IEP

This applies whether or not the parent attends the meeting and whether or not the parent agrees with the IEP

Procedural Safeguards Notice - p. 60 Provide for disciplinary removal resulting in

change of placement (p. 65)

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Chapter 6 – Administration of Services

Page 63 – Maximum case management limit of 20 students with IEPs for teachers of developmental delay

Page 66 – Special education teacher required

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Chapter 6 – Caseloads

When students with different levels of service need are in the same class, the per period staffing ratio for the highest level of need (more staff) is required (p. 67)

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Pre-K CaseloadsProgram

Maximum Students Per Session

Staff

Universal Pre-k with Students with IEPs

20 students per session with limit of 10 students with IEPs per session

2 staff persons per session (1 teacher and 1 additional staff person) with no more than 9 students with IEPs3 staff persons (1 teacher and 2 additional staff persons) required for 10 students with IEPs

Special Education Pre-k

8 students 1 teacher and 1 additional staff person

10 students1 teacher and 2 additional

staff persons

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Chapter 7 - Discipline Disciplinary removal resulting in change of

placement (e.g. over 10 days) requires same day PWN and procedural safeguards (p.69)

School personnel (not district) may unilaterally remove a student to Interim Alternative Educational Setting for specific reasons (drugs, weapons, serious bodily injury) (p. 70)

Severe bodily harm change to “injury” consistent with federal law

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Chapter 9 – General Supervision and Accountability Notification and correction of noncompliances

as soon as possible, and in no case later than one year

Chapter 10 – Procedural Safeguards

PWN five day timeline (p. 92)

Parent revocation of consent added to applicable sections (p. 93, p. 102)

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Chapter 11 – Dispute Resolution Mediation may be filed for “any matter”

(p. 101) – changed consistent with IDEA 2004 regulations

WVDE informs parent of free/low cost legal assistance when a due process hearing is filed (not district) (p. 103)

Representation by nonattorneys (p. 107) Due process hearing decision may be

appealed to civil court within 90 days (p. 110)

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smcquain@access.k12.wv.us

(304)558-2696

FAX (304) 558-3741

Direct questions to: Sandra McQuain, Ed.D.

Assistant DirectorOffice of Special Programs

West Virginia Department of Education

Bldg. 6, Room 304Charleston, WV 20305

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