2019 Update on Kansas Due Process Hearings, State Complaints,

Recent Court Decisions, Federal Guidance, and QuestionsAugust 5, 2019

Kansas State Department of Education

Special Education and Title Services

* Underlined text identifies the issue(s) involved. Bold text highlights the principal points of emphasis.

* These materials are provided as informal guidance. They are intended to be used for general information only, and are not to be considered legal advice or official KSDE policy for any specific situation. If specific legal advice is sought, please consult an attorney. If official KSDE policy is sought, please contact the Office of General Counsel at KSDE

TABLE OF CONTENTS Pg.

Due Process Hearings 1 Formal Complaints to KSDE 5 OCR/OSEP Decisions & Guidance 16 Case Law 21 Questions and Answers 27

DUE PROCESS HEARINGS: 19DP443-001 19DP001

The parents of a 7th grade student requested a due process hearing on July 10, 2018. Various motions were filed, including a motion for summary judgment. On January 4, 2019 the motion for summary judgment was denied. The hearing lasted five days: January 22, 23, 24, and February 11 and 18, 2019.

The student had multiple disabilities, including malignant infantile osteoporosis, anxiety, depression, attention deficit disorder, eating disorder, and autism. The student was also legally blind. In 2013 and 2014, the student lived in one of the dorms at the Kansas State School for the Blind [KSSB]. The student's father stayed in the dorm with him to address the student's medical, behavioral, and feeding concerns, and to aid in facilitating the student's behavior plan. Beginning in 2015, the student was home-schooled and attended a private parochial school for one hour per day. In the 2016 school year, the student attended the private school on a full-

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time basis. During that time, the student attended KSSB each summer for extended school year (ESY) services. During ESY the student lived in the dorms independently with few problems.

Prior to the due process hearing, the parents filed two formal complaints, one in 2017 and one in 2018, alleging that the district failed to provide braille and closed caption television for the student at the private school. The complaint investigator found a failure to implement the IEP. As a result, the district agreed to provide one year of compensatory education at the KSSB. To do so, the district modified the student's IEP to state that the district would reimburse the parents at the mileage rate for transportation to and from KSSB and the student's home in western Kansas. The IEP stated that the mileage rate would be paid for "each time the student has to be transported to KSSB for school and each time the student has to be transported home from school [emphasis added]." The parents believed the district would pay the transportation costs for travel each day (674 miles round-trip), and later when the district objected, to pay the transportation costs each weekend, whether or not the student went home. The school did not agree to either of these interpretations. This became an important issue when the parents rented an apartment in Lenexa so that the student could remain with a parent instead of living in the dorm. The parents did not consult with the IEP team about this living arrangement, so the IEP did not address this situation. While negotiations were ongoing, the student was expelled from the KSSB dorms for behavior reasons. The parents made additional requests for an IEP amendment to address the student's living and transportation situation, even notifying the district that they could no longer afford to rent the Lenexa apartment. However, the district maintained that the statement of compensatory services in the current IEP was appropriate.

The parents requested a due process hearing to resolve this disagreement and the hearing officer disagreed with the district’s position on the appropriateness of the compensatory services in the IEP. Finding that the IEP was not reasonably calculated to provide a free appropriate public education (FAPE), the hearing officer stated, "the IEP failed to address how and where [the student] would reside during his compensatory placement at KSSB…" The hearing officer noted that the parents also failed to respond to district requests for specific information, but added:

Regardless, once the Parents put the District on notice that they could not afford, or no longer had the intention to continue to rent the Lenexa apartment, and they wanted the IEP transportation services to be re-evaluated based upon the same, the IEP team should have addressed a continuum of services that could have provided the related service of transportation to [the student's] residential (or potential lack of residential) placement… This did not occur, instead the District chose to stick with the original language from the July 19, 2017 consented IEP and refused to address the change in circumstances that were affecting [the student's] need for services in order to receive a free and public education at his compensatory placement at KSSB.

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The hearing officer denied, however, the parent's request to be reimbursed for the costs of the apartment, including rent ($1,900.00/mo), utilities, late fees, and renter's insurance. The parents had asserted these should be considered related services. The hearing officer denied this request for reimbursement based on evidence that the parents made a unilateral decision to rent the apartment and did not attempt to inform, or even request, such expenses from the district prior to incurring these costs. The parents appealed this portion of the decision. The review officer affirmed the hearing officer's decision, citing evidence that there were other reasons the parents wanted to rent the apartment in Lenexa (they had another child attending school in the area and they wanted to be able to take the student to doctor appointments).

On another issue, the hearing officer concluded that the parents were not denied the opportunity to meaningfully participate in the IEP process. The hearing officer ordered the following:

1. Within 10 days of the date of the decision, convene an IEP meeting to address the housing needs of the student, including appropriate housing, and provide for that need in the IEP as a related service;

2. The District is directed that the parents are not required to maintain the Lenexa apartment to make the KSSB placement feasible, and if the parents choose not to maintain the Lenexa apartment, the District must provide the related services to address both the housing and transportation needs to maintain the KSSB placement in a realistic manner (although the one-year timeline had expired, the KSSB placement continued as the "stay put" placement during this litigation);

3. The IEP team is required to address the transition services needed by the student, and include in related services: Braille and CCTV services;

4. The IEP team must develop a transition plan for the student's transition back to the home district;

5. If the parents refuse any services or supports that the IEP team agrees are appropriate, the District must obtain a written refusal of services from the parents for each denied service or support;

6. The parents were directed to submit an itemized statement for mileage transporting the student to and from home and KSSB, including all mileage to and from the Lenexa apartment and KSSB [this was a major part of the initial dispute], and the district shall make timely payment for transportation reimbursement.

7. The parents were the "substantially prevailing party," which has implications with regard to an award of attorneys' fees, which must be determined by a court.* Affirmed on appeal to a state review officer. This has now been appealed to district court.

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18DP305-002 18DP001

This case involved a seventeen-year-old boy with multiple disabilities and medical conditions, including severe autism, rheumatic fever Sydeham's chorea (a movement disorder), hyper activity, obsessive-compulsive disorder (OCD), a tic disorder, and autoimmune encephalitis. Testimony indicated that the student could converse, but was unable to express emotions or thoughts. Testimony also indicated that the student engaged in severe aggressive behaviors and self-injurious behaviors. The parents requested that the school district place the student in an out-of-district residential school (Heartspring). The school district refused this request, and the parents and the district both requested a due process hearing (involving several issues including the parent's refusal to give consent for a re-evaluation. The district's request for due process was eventually closed and the parent's request for due process proceeded. That situation put the burden of proof on the parents. At the hearing, the student's teachers and therapists testified that the student was making progress. The student's functional special education teacher testified that this student was the most severe student that she has had in her twenty-eight year career working with children with autism, but that she believed the IEP goals were appropriate and that the student was making appropriate progress toward achieving those goals.

Using the standard for FAPE set by the United States Supreme Court in Endrew F. v. Douglas County School District, that the district must offer an IEP reasonably calculated to enable a child to make appropriate progress in light of the child's circumstances, the hearing officer found that the student's 2016 and 2017 IEPs were appropriately ambitious in light of the student's unique circumstances, and reasonably calculated to enable the student to make appropriate progress in light of his special circumstances. Therefore, the hearing officer concluded that the school district had provided a FAPE in the LRE and the parent's request for the student to be educated at a residential school was denied.

* The hearing officer also addressed the district's argument that a residential placement would not be the least restrictive environment (LRE) for this student. Using the Daniel R.R. test (5th Circuit), adopted in modified form by the Tenth Circuit, see T.W. v. USD No. 259 Wichita, 136 Fed. Appx. 122, 43 IDELR 187 (10th Cir. 2005). the hearing officer concluded that a residential school would not be the least restrictive environment for this student. The Daniel R.R. standard, as adapted by the Tenth Circuit, has a two-prong test:

The first prong is whether education in a regular classroom, with the use of supplemental aids and services, can be achieved satisfactorily – if so the analysis is over and the regular classroom is the least restrictive environment. Factors considered by the 10th Circuit regarding the first prong of the analysis are:

(1) steps the school has taken to accommodate the student in the regular education environment; (2) comparison of academic benefits the child will receive in regular classrooms with those to be received in a special education classroom; (3) the child’s overall educational experience in regular education, including non-academic benefits; and (4) the effect on the regular classroom of the disabled child’s presence in that classroom.

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The second prong of the Daniel R.R. test is, if the child cannot be satisfactorily educated in the regular classroom, whether the school has mainstreamed the child to the maximum extent appropriate.

* This was a lengthy hearing covering eight days, and resulting in eight volumes of transcript.

* This case was appealed to a state review officer. The state review officer sustained the decision in its entirety. The state review officer noted:

1. The district requested consent to conduct a functional behavioral assessment (FBA), but the parents refused to give consent. The review officer said the parent put up "roadblocks" preventing the district from completing assessments and "the Parents cannot now claim the District has failed to make an adequate assessment." And,

2. The student's mother put up a social media post which stated, in part, "…his father and I are in the process of accomplishing for him, to get him into the best private school & all the opportunities he deserves…[t]his is a story of parents relentless in their pursuit to advocate for & provide their child the very best…" After this citation, the review officer said the issue is not whether the district must put this child in the "best private school" or to provide him the "very best." The issue is whether FAPE was provided.

FORMAL COMPLAINTS TO KSDE :

19FC203-001 19FC001

Twelve issues were presented, most asserting a failure to implement the IEP.

The investigator substantiated some allegations and did not substantiate others. With regard to those not substantiated, the investigator correctly stated that missed IEP services do not need to be made up when school is not in session, during winter break or when school is canceled due to weather, or when the student is absent [See Letter to Kane, 72 IDELR 75 (OSEP 2018)].

Also, the parent alleged that the IEP team made changes to the student's health care plan without parent consent. These changes involved additional comments in the health plan and changes to interventions related to fatigue. The investigator determined that these changes were not a material change in services, and thus did not require consent, because none of these comments or interventions changed the frequency or duration of the health care plan. At most, the changes represented changes in instructional methodology. However, the district also did not provide a prior written notice (PWN) for these changes and that was a violation of law. The investigator cited the recent United States Supreme Court ruling in Endrew F. v. Douglas County Sch. District, stating that a FAPE is an IEP reasonably calculated to enable a child with a disability to make progress that is appropriate in light of the child's circumstances. Thus, any change to an IEP is a change related to FAPE, and requires a PWN.*

19FC266-001 19FC002

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In this complaint, a child was evaluated and determined to be ineligible for special education. The parent requested an independent educational evaluation (IEE) at public expense. The district denied the parent's request for an IEE, and did not request a due process hearing to show its evaluation was appropriate, as required by 34 C.F.R. §300.502(b)(2). The district held the position that it was not limited to the options of either providing an IEE at public expense or initiating a due process hearing because the regulation stated at 34 C.F.R. §300.502(a)(1) said: "The parents of a child with a disability have the right under this part to obtain an independent educational evaluation of the child…[emphasis added]" The term "child with a disability" is defined in the regulations at 34 C.F.R. §300.8, to mean a child evaluated as having one of the specified categories of disability and, who by reason thereof, needs special education and related services. The investigator found that the same language occurs in other procedural safeguard regulations, including the right of a parent of a child with a disability to:

(a) receive the notice of procedural safeguards upon the initial referral or request of a parent for an evaluation;

(b) receive prior written notice before initiating or refusing any proposal related to the identification or evaluation of the child;

(c) file a due process hearing on matters related to evaluation and identification;

(d) attend meetings with respect to the evaluation and identification of their child; and

(e) attorney's fees when they prevail in a due process hearing.

The investigator found, although the district had used a literal interpretation of the regulation, that interpretation was inconsistent with the intent of the law, and if used consistently, would render all of the above referenced procedural safeguards meaningless for parents of children in the child find process. If, as the district argued, parents were only parents of a child with a disability after the child was evaluated and found to be in need special education and related services, then those parents who requested an evaluation and whose child had not been evaluated, or had been evaluated and found to be ineligible, would have none of the listed procedural safeguards. That would lead to an absurd result -- that is, the regulations state that these procedural safeguards do apply to parents of children in the child find process and, at the same time, that they do not. Cannons of statutory construction say that when a literal reading of a statute or regulation leads to inconsistent, contradictory, or absurd results, the statute should be interpreted to avoid those results, and, instead, be interpreted to reconcile the different provisions so as to make them consistent and practicable. The investigator concluded that parents of a child who had been evaluated and determined to be ineligible for special education do have a right to an IEE at public expense unless the district initiates a due process hearing to show that its evaluation is appropriate.

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* Two months after this decision was rendered, and upheld by the Appeal Committee, on May 2, 2019, OSEP issued Letter to Zirkel, 74 IDELR 142 (2019), in which OSEP agreed that parents who disagree with a decision in an initial evaluation that a child does not qualify for special education services, have a right to request an IEE. In its decision, OSEP said "Because the definition of evaluation includes eligibility determinations under IDEA, we believe an IEE can be obtained after an initial evaluation regardless of whether the child was found eligible as a child with a disability…"

19FC333-001 19FC003

In this complaint the parent challenged the district's denial of a request for an IEE. The parent had informed the district that she wanted to use a doctor who is located in Wichita. The district denied this request for an IEE because the district's IEE criteria limited IEEs to a 100-mile radius and to school psychologists with at least three years of experience.

The investigator cited OSEP guidance on this topic, stating that, although schools may set criteria for IEEs, they: (1) cannot prohibit IEE examiners from associating with private schools or advocacy groups because that kind of restriction is unrelated to the examiner's ability to conduct an IEE; (2) cannot require the examiner to have "recent and extensive experience in the public schools" because that is too narrow and unrelated to their ability to conduct an IEE; (3) may not require examiners to be licensed, or eligible for licensure by the State Department of Education because that could make it impossible to assess certain areas of disability (example might be a student who needs assessment by clinical psychologist); (4) may provide a list of IEE examiners, but if they do, the list must be exhaustive; and (5) districts must allow exceptions to their criteria if a parent can demonstrate unusual circumstances (a condition that has no definition). These are examples that OSEP provides to illustrate the regulatory requirement that any criteria must be consistent with a parent's right to an IEE. Letter to Young, 39 IDELR 98 (OSEP 2003), Letter to Parker, 41 IDELR 155 (OSEP 2004), Letter to Petska, 35 IDELR 191 (OSEP 2001).

In addition, the investigator cited these paragraphs in federal regulation 34 C.F.R. § 300.502:

(e) Agency criteria. (1) If an independent educational evaluation is at public expense, the criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, must be the same as the criteria that the public agency uses when it initiates an evaluation, to the extent those criteria are consistent with the parent's right to an independent educational evaluation.

(2) Except for the criteria described in paragraph (e)(1) of this section, a public agency may not impose conditions or timelines related to obtaining an independent educational evaluation at public expense.

(b) Parent right to evaluation at public expense.

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(1) A parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency, subject to the conditions in paragraphs (b)(2) through (4) of this section.

(2) If a parent requests an independent educational evaluation at public expense, the public agency must, without unnecessary delay, either--

(i) File a due process complaint to request a hearing to show that its evaluation is appropriate; or

(ii) Ensure that an independent educational evaluation is provided at public expense, unless the agency demonstrates in a hearing pursuant to Sec. 300.507 through 300.513 that the evaluation obtained by the parent did not meet agency criteria.

In this case, the investigator said she did not need to determine whether the district's criteria conformed with the guidance from OSEP because, under the applicable regulation, when a parent disagrees with the school’s evaluation and requests an IEE at public expense, the school has only two options: provide the IEE or initiate a due process hearing. In this case, the district did neither. Accordingly, the investigator found a violation of law and ordered the district to, within 5 days, provide written notice to the parent either agreeing to the IEE using the evaluator previously identified by the parent, or requesting a due process hearing.

In a portion of the report, titled "Additional Comments," the investigator said that if the district requested a due process hearing, questions regarding its IEE criteria would need to be addressed by the hearing officer, but observed that the 100-mile limitation appeared to be unnecessarily restrictive because the parent was not asking for travel expenses and the 100-mile radius did not include any major city. The requirement that the examiner be a school psychologist with at least three years of experience is different than the district's own criteria for its evaluators because it permits evaluations to be conducted by any of its school psychologists, regardless of the length of the school psychologist's experience, and the examiner selected by the parent, although currently in private practice, has four years of previous experience as a school psychologist, holds an ED Masters in school psychology, a PhD in school psychology, and a PHD in clinical psychology. In addition, the district indicated that school psychologists are involved in every initial evaluation, but other specialists, such as speech/language pathologists, reading specialists, and special education teachers are also involved where expertise is required to assess need. Accordingly, restricting IEEs to only school psychologists appeared to be an undue restriction on IEEs. In addition, the list of IEE providers given to the parents was not exhaustive because of the 100-mile radius, and because it was limited to school psychologists who are members of KASP.

So, what if the LEA believes its criteria are not met?

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The regulations at 34 C.F.R. § 300.502(b)(2)(ii) state that the public agency (LEA) must demonstrate in a due process hearing that the evaluation obtained by the parent did not meet agency criteria. Further, OSEP has provided guidance stating that the regulations provide only two options. With regard to criteria, OSEP has said: "If the out-of-district IEE obtained by the parent does not meet the public agency's location, qualification, or reasonable cost criteria, the public agency may challenge the parent's right to a publicly-funded IEE by initiating a due process hearing." Letter to Heldman, 20 IDELR 621 (OSEP 1993). If a district denies a request for an IEE because it believes the parent's choice is inconsistent with the district's criteria and does not request a due process hearing, parents may file a state complaint or initiate due process to show the district elected an option not available to it. Letter to Anonymous, 56 IDELR 175 (OSEP 2010). In Letter to Zirkel, 52 IDELR 77, (OSEP 2008), OSEP said an LEA may refuse to pay for an IEE if it initiates a due process hearing to show its evaluation was appropriate, or to show the parent's IEE did not meet agency criteria, and that if a parent did receive an IEE at public expense, and the parent's IEE did not meet agency criteria, the LEA would not need to consider the results of that IEE [*the LEA could also give lesser weight to the IEE]. In this letter, OSEP added that a school may deny a request for an IEE without initiating a due process hearing if the school has not completed an evaluation because until an evaluation has been completed, there is nothing with which the parent can disagree (34 C.F.R. 300.502(b)(1) states “a parent has the right to an IEE at public expense if the parent disagrees with an evaluation obtained by the public agency…[emphasis added]”). However, in Letter to Baus, 65 IDELR 81 (OSEP 2015), OSEP said that if a parent disagrees with the evaluation because a child was not assessed in a particular area, the parent has the right to request an IEE to assess the child in that area to determine whether the child has a disability and the extent of services the child needs as a result of that disability, and the school must either ensure the IEE is provided at public expense or initiate a due process hearing.

* In another complaint, corrective action required the district to provide an IEE at public expense. The parent had that IEE done at Children's Mercy Hospital. Children's Mercy issued a statement indicating that the value of the IEE was $800.00, but that there was no charge to the parent. The parent notified the district that she expected the district to pay her the $800.00 because the investigator had ordered the district to provide the IEE "at public expense," as stated in the federal regulations. SETS declined to require the district to make this payment, citing 34 C.F.R. § 300.502(a)(3)(ii), which says, "Public Expense means that the public agency either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to the parent…"

19FC344-001 19FC004

After a parent's request for an Independent Educational Evaluation (IEE), the special education cooperative agreed to pay for the IEE. The parent provided an estimated cost of $2,000 to $3,000, at the rate of $250 per hour for the psychoeducational assessment by a PHD level clinical psychologist. The cooperative responded by saying the standard cost for this kind of assessment was $600, and agreed to pay $600 toward the cost of the assessment, but not more. The cooperative provided the parent with a prior written notice stating the offer to pay

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up to $600, along with a citation to OSEP comments in the federal regulations and in subsequent OSEP guidance documents. Those comments indicated that public schools could "establish reasonable cost containment criteria" for IEEs as long as the school provided parents the "opportunity to demonstrate that unique circumstances justify the selection of an evaluator whose fees fall outside the agency's cost containment criteria."

The investigator determined that there was no evidence that the district had provided this parent with an opportunity to demonstrate that unique circumstances justified selection of an evaluator whose fees fell outside the agencies cost criteria. In addition, the investigator cited federal regulation 34 C.F.R. § 300.502(b)(2), which says that when a parent requests an IEE, the district has two options. The district must, without unnecessary delay:

1) Initiate a due process hearing to show that the school's evaluation was appropriate; or

2) Ensure the IEE is provided at public expense by either paying the full cost of the IEE unless a due process hearing found that the evaluation obtained by the parent does not meet the school district’s criteria.

In its defense, the district cited the federal regulations at, 34 C.F.R. § 300.502(e), stating that districts can set the criteria under which an IEE may be obtained. The investigator agreed that the district could set criteria for an IEE, but that did not provide the district with a third option: to deny a request for an IEE without initiating a due process hearing. In the decision, the investigator cited two guidance letters from OSEP, as follows:

It is noted that the IDEA does not make any other options available to school districts for responding to a parent request for an IEE at public expense. The Office of Special Education Programs (OSEP) has directly addressed this issue, stating:

If the total cost of the IEE exceeds the maximum allowable costs and the school district believes that there is no justification for the excess cost, the school district cannot in its sole judgment determine that it will pay only the maximum allowable cost and no further. The public agency must, without unnecessary delay, initiate a hearing to demonstrate that the evaluation obtained by the parent did not meet the agency's cost criteria and that unique circumstances of the child do not justify an IEE at a rate that is higher than normally allowed. See: Letter to Anonymous, 103 LRP 22731 (OSEP 2002). And See, Letter to Petska, 101 LRP 633 (OSEP 2001) stating "the school district must ensure that the IEE is provided at public expense unless it demonstrates in a due process hearing that the parent's IEE did not meet the district's criteria, including criteria related to location."

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A violation of law was substantiated, and the district was required to, within 15 days, either offer to pay for the IEE requested by the parent or initiate a due process hearing.

* The investigator also noted federal regulation 34 C.F.R. § 300502(b)(2), saying that a school district must insure that when an IEE is requested it is either provided, or the district initiates a due process hearing within a reasonable time. The investigator acknowledged that the regulations do not define the term "reasonable time," but cited (Letter to Anonymous, 56 IDELR 175 (OSEP 2010), where OSEP described it to permit a reasonably flexible, though normally brief, period of time that could accommodate good faith discussions and negotiations between the parties over the need for, and arrangements for, an IEE.

19FC408-001 19FC005

The district responded to a parent's request for an "emergency" IEP meeting by conducting a meeting after school hours. The meeting did not include a regular education teacher of the child. The investigator found a violation of law and the district appealed indicating that it did not need to include a regular education teacher of the child if the meeting was outside of school hours. The appeal committee disagreed, saying: "The Appeal Committee notes that districts are not required to conduct IEP meetings outside of school hours [See Letter to Thomas, 108 LRP 65843, 51 IDELR 224 (OSEP 2008)]. However, if a district does conduct an IEP meeting after school hours, the meeting must comply with the legal requirements for conducting IEP meetings." The finding of a violation was sustained.

In another issue, the investigator substantiated a violation of law because the district added a communication book to the IEP as an accommodation, but did not put the communication book in a PWN and did not obtain parent consent. The district appealed arguing that a PWN and consent were only needed when adding or removing a service, and were not required when adding or removing an accommodation. The district relied on regulations saying that a PWN is required when there is any proposal to initiate or change, or to refuse to initiate or change, the identification, evaluation, placement, or the provision of FAPE. The district's position was that adding an accommodation did not involve identification, evaluation, or placement. In addition, the district took the position that adding an accommodation did not involve the provision of FAPE, because FAPE is defined at 34 C.F.R. 300.17 as, in relevant part, "special education and related services." The appeal committee disagreed, saying:

FAPE is not limited to special education and related services. There is a rich history of case law regarding FAPE stretching back over thirty six years to Hendrick Hudson Dist. Bd. Of Ed. v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 553 IDELR 656 (1982), where the Supreme Court said a FAPE is an IEP reasonably calculated to provide educational benefit. More recently, in Endrew F. v. Douglas County School District, 117 LRP 9767 (S.C. 2017), the Supreme Court added some clarity, stating that a FAPE is an IEP reasonably calculated to enable a child with a disability to make appropriate progress in light of the child's unique

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circumstances, and to include challenging goals and objectives in the IEP. From this lengthy history of case law, it is evident that a FAPE involves all parts of the IEP. Thus, when the federal regulation, at 34 C.F.R. 300.503, requires a Prior Written Notice whenever an agency proposes to initiate or change, or refuses to initiate or change, the provision of a free appropriate public education to the child, it is requiring a Prior Written Notice for any change to an IEP.

The appeal committee also agreed with the complaint report that the addition of the communication book required parent consent, saying:

The term 'Supplementary Aids and Services' is defined in Kansas regulations, at 91-40-1(ttt), to mean 'supports that are provided in regular education classes, other education-related settings, and extracurricular and nonacademic settings to enable children with disabilities to be educated with nondisabled children.' These Supplementary Aids and Services are sometimes referred to as accommodations, although the term 'accommodations' is not used in either federal or state regulations regarding special education. Because an accommodation, such as the Communication Book in this case, is also a Supplementary Aid, the addition of the Communication Book to the IEP constitutes a 100% change in that Supplementary Aid, and requires parent consent under state law. * In K.A.R. 91-40-1, a Material Change in Services means an increase or decrease of 25 percent or more of the duration or frequency of a special education service, related service, or supplementary aid or service specified on the IEP of an exceptional child. Accommodations are supplementary aids and services.

Finally, the appeal committee added that regulations regarding consent require that the parent be fully informed of all information relevant to the activity for which consent is sought [K.A.R. 91-40-1(l)(1)]. That is another reason the committee concluded that a PWN must be provided whenever a school district is requesting parent consent for a special education action.

*In a separate complaint against another district, for the same reason, the investigator found a violation when the IEP team changed an IEP goal without providing a prior written notice.

19FC501-001 19FC006

The parent enrolled the student in a private ABA program from 1:15 to 3:15 p.m. on Mondays and Fridays. The parent subsequently filed a complaint alleging that the school was not providing all of the special education services specified in the IEP, and requesting compensatory services. The investigator determined that the district, at all times, stood ready, willing, and able to provide the services scheduled from 1:15 to 3:15, but failed to do so only because of the parent's unilateral decision to enroll the student in the private services during the time the IEP services at the public school were scheduled. The investigator also determined that the district is not required to provide compensatory services for services missed when the

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services are available at the school and the student fails to attend school [Letter to Clarke, 48 IDELR 77 (OSEP 2007) and Letter to Kane, 72 IDELR 75 (OSEP 2018). In addition, the investigator said compensatory services are not required when a student does not receive services specified in the IEP at times when no students are receiving educational services [not a school day], including holidays, student activities [field trip], or mandatory safety drills, such as fire drills, unless otherwise specified in a child's IEP. If activities are interfering with progress, schools may have to change service times for those children being adversely affected.

The parent also alleged that the student was being bullied and suffering from discrimination to the extent the student was not receiving a (FAPE). The investigator noted that the terms "bullying" and "discrimination" are not defined, nor addressed in any other way, in the IDEA. Accordingly, a complaint investigator will not make any findings as to whether bullying or discrimination are occurring. Rather, the investigator will address only the FAPE issue: Is the student making appropriate progress in light of the student's unique circumstances?

19FC264-001 19FC007

In this complaint, the parent alleged that the school district failed to have an IEP team member who could interpret the instructional implications of evaluation results at a specified meeting of the IEP team. The pertinent regulation is 34 C.F.R. § 300.321. That regulation requires that the IEP team must include certain specified members, including "an individual who can interpret the instructional implications of evaluation results…" That regulation also states that the member of the team who can interpret the instructional implications of evaluation results may be a member of the team who is also filling another specific role on the team (excepting only the parent and the child with a disability). The investigator concluded that the team did not include such a member at the March 21, 2019 IEP meeting, and the school district filed an appeal. In its appeal, the school district asserted that either the special education teacher or the regular education teacher could have filled that role on the team. However, an audio recording of the IEP team meeting demonstrated that no one at the meeting was willing to take on that role. Although the teachers could be heard discussing their observations and classroom assessments, they openly declined to discuss evaluation results. Instead, they said if evaluation data and evaluation results were to be discussed, the team would need to reschedule a meeting when the school psychologist could attend.

The Appeal Committee agreed with the conclusion of the investigator and sustained the conclusion that the IEP team did not include an individual who could interpret the instructional implications of evaluation results. After listening to the audio recording of the meeting, the Appeal Committee said:

The Appeal Committee concludes that there is sufficient evidence to support the findings and conclusions in the report of the investigator. The Appeal Committee agrees with all of the findings and conclusions, specifically including all of the following:

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Someone must be present at the meeting who can interpret the instructional implications of evaluation results, regardless of the purported purpose of the IEP meeting (p. 9).

No one from the district made any affirmative statement to indicate that they were assuming this required role when the advocate specifically asked that the person in that role be identified (p. 9).

The district did not at any time during the meeting point to one or more of the individuals present as being able to function in the required role. No one from the district noted on the signature page of the amended IEP that they had assumed that role (p. 9).

No one from the district affirmatively assumed the role of a person who can interpret the instructional implications of evaluation results.

The Appeal Committee also noted:

The requirement that the IEP team include a member who can interpret the instructional implications of evaluation results is meaningless if the member that has that ability to serve in that roll declines to provide the needed interpretation. There must be a member of the IEP team who is both able and willing to fill that role.

* The Committee noted: "The Kansas Special Education Process Handbook is a guidebook. It is intended to provide general guidance to the public. It is not law or regulation. It should not be cited in legal analysis, particularly in situations where it is inconsistent with law or regulation. The Appeal Committee agrees entirely with the investigator's analysis (on page 4 of the Initial Report) of a portion of the Handbook indicating the team needed to include a member who can interpret instructional implications of any "new" evaluation. That statement is correct, but misleading because there must be a member who can interpret the instructional implications of evaluation results even if the most recent evaluation is not a new evaluation. That provision has been removed from the Handbook."

19FC362-001 19FC008

In this complaint, the district was cited for several violations by: failing to complete the initial evaluation within 60 school days; failing to provide the parents with a prior written notice (PWN) of the decision that this child was not eligible for gifted services; failing to give the parents a copy of the evaluation report within a reasonable time; failing in the evaluation report to certify in writing that the report reflected the conclusions of all members of the evaluation team; failing to provide any separate statement that the report did not reflect any member's conclusion, all as is required by law. Further, the evaluation was not signed by any team member. In addition, the gifted evaluation report was developed solely by the school

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psychologist, and did not reflect any input from any other member of the eligibility team. Instead, the report stated that it was the opinion of the school psychologist that the student was not eligible because the support that the student was receiving in the regular education environment was meeting her needs. There was no indication in the report to document that any team discussion occurred or, if it did occur, that any consideration was given to any input from other members of the team or from the parents. Thus, the investigator determined that the eligibility decision was not made by a team of qualified professionals, as required by law.

19FC453-001 19FC009

This complaint involved a nine-year-old boy enrolled as a non-resident student in a residential day school located outside his home district. He was released from the day school on April 25, 2019 and returned to live with his family. On April 30, the student's mother attempted to enroll the student for the remainder of the school year in his district of residence. When his mother went to the office of the zoned school building to enroll the student, the administrative assistant told the parent that she was unsure whether the student could be pulled back into the system or whether the student would need to enroll using a snap code. The administrative assistant told the mother she would get back to her. The principal called the mother and left a voice mail asking the mother to call him back so he could talk to her about what was needed to enroll the student. The mother responded by e-mail and the principal responded back by voice mail. There were five such exchanges, in which the parent responded by e-mail and the principal responded back by leaving a voice mail. At no time did the principal leave any information as to what needed to be done to enroll the student. The parent filed a complaint, and the investigator ruled that the district failed to follow the requirements regarding a student who transfers into a new district within the same state. That requirement is to provide comparable services until the new district either adopts the incoming IEP or develops a new IEP. The district appealed that decision on the basis that the parent is required to enroll the student before the transfer requirements take effect, and that this parent only inquired about enrollment, and did not actually enroll the student.

The appeal committee disagreed. It cited emails sent by the parent, as follows:

May 1: "I received a voicemail regarding registration. I came in to register the student yesterday."

May 6: "I came in to register the student on Tuesday of last week. You were going to check to see if the tech guys could pull him back into the system or send me a snap code so that I could get him re-registered."

May 7: "Last Wednesday I emailed you after you left the first voicemail asking you to let me know what was needed to get him registered. Again, it has been a week and all I have received are voicemails asking me to return your call. If there is something needed please let me know what that is."

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The Appeal Committee said:

It is clear to the Appeal Committee that when the parent made repeated references in her email correspondence to registering her child, she was referring to enrollment. These repeated communications document that this parent was not merely inquiring about the enrollment process, she was attempting to enroll her child. Her email statement on May 7 correctly stated that she had received nothing in response to these attempts to enroll her child except voicemails asking her to return calls from the principal. The Appeal Committee agrees with the investigator's finding on page 7 of the report that "In this case it is clear that the parent wanted to enroll the student in USD #453 on April 30, 2019."

The Appeal Committee also agrees with the investigator's statement, on page 7 of the Initial Report, that school districts are free to adopt reasonable enrollment procedures. Districts are not free, however, to put up barriers to prevent or to delay the enrollment of children whose parents are attempting to use the procedures to enroll their child. This is particularly the case for parents of a child with a disability. When it comes to compliance with district procedures, such as procedures for enrollment, school districts are in a much more powerful position than parents. That power should not be used to make the process more difficult than it needs to be or to delay enrollment. This situation could have been avoided with a simple email to the parent on April 30, from either the administrative assistant or the principal, providing what the parent requested: informing the parent whether the student would be enrolled by being pulled back into the system or by providing a snap code. That did not happen.

As a result, the Appeal Committee agrees with the investigator's conclusion that this student was denied a free appropriate public education (FAPE).

Corrective action, including compensatory services were required.

OCR/OSEP

Coeur d'Alene (ID) School District 271, 74 IDELR 143 (OCR 2018)

In this complaint, the student spent two hours in a traditional high school, at which time she boarded a bus and traveled to an alternative high school for the rest of the school day. The parent alleged that the 40 minutes per day of additional transportation time to and from the alternative school resulted in a shorter school day than regular education students received. OCR found no violation of Section 504, in a redacted report, saying:

With respect to whether the district provided the student with a shorter school day than her non-disabled peers because of transportation between [ ] and [ ] 34 C.F.R. § 104.4(b)(iv) prohibits a recipient from providing different or separate aid, benefits, or services to individuals with disabilities unless such action is

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necessary to provide the individual with an aid, benefit or service that is as effective as those provided to others. In this case, the evidence established that the student's IEP team followed the proper procedural requirements of Section 504 in making a placement determination that the student's disability-related needs could best be met with a program at both [ ] and [ ]. Although the schedule of services provided to the student was different than that generally provided to students at each school, the evidence established that this arrangement was necessary to provide the student with educational benefits that are as effective as those provided to others and which meets her individual disability-related needs. Therefore, OCR has determined that the evidence does not support a conclusion that the district failed to comply with Section 504 or Title II with respect to this aspect of the issue investigated.

OCR added: "Except in extraordinary circumstances, OCR does not review the result of individual placement or other educational decisions so long as the district complies with the procedural requirements of Section 504, and OCR generally will not evaluate the content of a Section 504 plan or IEP."

*OSEP has rejected this position with regard to special education complaints to an SEA.

(KS) Unified School District, 73 IDELR 79 (OCR 2018)

This was a retaliation complaint made to the Office for Civil Rights (OCR) against a Kansas school district that banned a parent from entering the school or making any physical contact with school personnel. The ban included a provision that the school would call the sheriff's office if the parent did not comply with the ban. IEP meetings were to be conducted in the school board of education office. Any parent contact with school personnel had to be in writing, and any response by school personnel had to be in writing. To establish a prima facie case of retaliation, under Sec. 504 of the Rehabilitation Act, the OCR must find (1) an individual engaged in a protected activity; (2) the recipient school district was aware of the individual’s protected activity; (3) the recipient took an adverse action against the individual contemporaneous with or subsequent to the protected activity; and (4) a causal connection between the adverse action and the individual’s participation in a protected activity can be reasonably inferred (OCR presumes a causal connection when there is a close proximity in time between the protected activity and the adverse action). If these four elements are established, OCR determines whether the recipient had a legitimate, non-discriminatory, reason, that is not a pretext, for the adverse action. In this case, the OCR determined that all four elements of retaliation were present, and so, there was a prima facie case of retaliation. Accordingly, it looked to see if the adverse action was taken for a legitimate, non-discriminatory reason, that was not a pretext, for the adverse action. OCR determined that the ban was imposed not because of the protected activity [parent advocacy for her child], but because the parent was rude, demanding, and took up inordinate amounts of time (multiple hours of personal and

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phone conversations) which disrupted school, and the parent would not follow visitation requirements such as making advance arrangements, not disrupting school activities, and leaving when asked to leave. Case law is consistent with this outcome [see Lagervall v. Missoula County Public Schools, 71 IDELR 40 (D. MT. 2018) and Forest Grove School District, 73 IDELR 115 (D. OR 2018)]. When imposing restrictions on parent contact with school officials, the school should make sure it is doing so for a legitimate, nondiscriminatory reason, and that the restrictions are reasonable based on the circumstances.

County Area Educational Services, 119 LRP 7674 (OCR 2018)

This OCR complaint was filed against a Kansas special education interlocal. The complaint alleged that the interlocal failed to evaluate the student before changing his placement and failed to provide the student with a FAPE. The interlocal gave OCR a proposal to resolve the complaint. OCR accepted the proposal and is monitoring the completion of the proposal.

Of interest, is that the IDEA does not require an evaluation before making a change of placement. However, Section 504 regulations, at 34 C.F.R. 104.35, require schools to conduct an evaluation of a student "before taking any action with respect to the initial placement of the person in regular or special education and any subsequent significant change in placement [emphasis added]". Unlike the Kansas statutory definitions of substantial change in placement and material change in services, there is no mathematical calculation in the Section 504 regulations for when a "significant change in placement" occurs. However, OCR guidance has said a "significant change in placement" occurs when there is a substantial and fundamental change in a student's educational program." That change may include a change in educational environment and/or change in services.

Letter to Kane, 72 IDELR 75 (OSEP April 18, 2018)

OSEP says that "Generally, a special education or related service missed due to participation in required scheduled assessments would not constitute a denial of FAPE and the LEA would not be required to make up the missed service. And, for a child who is absent from school on testing days due to a parent's choice, the LEA would not be obligated to make other arrangements to make up the missed services. OSEP based this opinion on the IDEA requirement that children with disabilities must be included in all general state and districtwide assessment programs [and alternate assessments where necessary], as indicated in their respective IEPs. This letter provides the same analysis as used in Letter to Clarke, 48 IDLER 77 (OSEP 2007). *A disclaimer in the IEP remains a good practice.

Letter to Anonymous, 72 IDELR 251 (OSEP August 23, 2018)

OSEP was asked whether a school district could limit the amount of time an independent evaluator, who is paid by the parent, could observe children in their classrooms. OSEP said that the IDEA does "not provide a general entitlement for third parties, including attorneys and educational advocates, to observe children in their current classrooms or proposed educational

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placements. The determination of which individuals may have access to classrooms may be addressed by State and/or local policy." With regard to agency criteria for an IEE, however, OSEP said: "it would be inconsistent with the right of a parent to have an IEE considered by the public agency for a public agency to limit an independent evaluator's access in a way that would deny the independent evaluator the ability to conduct an evaluation in a way that meets agency criteria. Such criteria would include the amount of time that the independent evaluator spends with the child." Also see, Letter to Savit, 64 IDELR 250 (OSEP 2014), where OSEP says a two-hour limit for independent educational evaluators would be inconsistent with the IDEA because such a limitation may restrict the scope of the IEE and prevent an independent evaluator from fulfilling his or her purpose, unless the LEA also limits its evaluators to a two hour observation period.

Letter to Wayne, 73 IDELR 263 (OSEP January 29, 2019)

OSEP said: "If a determination is made through IDEA's child find process that a child needs special education and related services and a parent makes clear his or her intent to keep the child enrolled in the private school, the LEA where the child's parent resides, is not required to make FAPE available to the child. However, the LEA where the child's parents reside must make FAPE available and be prepared to develop an IEP if the parent enrolls the child in public school [citations omitted]."

Note: There is abundant case law saying that if a parent of a child with a disability who is attending a private school, requests the development of an IEP, or an update to an existing IEP, the school is required to do so, because although the receipt of FAPE is based on enrollment, the offer of FAPE is conditioned only on residency. So, a school may not require re-enrollment as a condition to conducting an evaluation or updating an IEP [See, Woods v. Northport Public School, 59 IDELR 64 (6th Cir. 2012)]. [ Note also, the LEA is required to conduct a re-evaluation of parentally placed private school children every three years (with parent consent). [See, Letter to Goldman, 53 IDELR 97 (OSEP 2009)].

Letter to Nathan, 73 IDELR 240 (OSEP 2019)

When a district has imposed a long-term suspension of a child not yet identified, and that district is deemed to have knowledge that the student is a child with a disability, may the district wait until an initial evaluation has been completed before conducting a manifestation determination review (MDR)? If not, how is the district to determine whether the behavior subject to discipline is a manifestation of a disability even before the LEA has made its eligibility determination?

OSEP said there is no exception to allow more than 10 school days from the date of the decision to make a disciplinary change of placement to complete an MDR. So, the answer to the first question is "no." With regard to the second question, OSEP said:

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We appreciate that the LEA would not have the IEP to use in its assessment of whether the behavior was a manifestation of the child's disability in these situations. See 20 U.S.C. § 1415(k)(1)(E)(i)(II). Nevertheless, it would still be possible for the LEA to convene a group of knowledgeable persons, as determined by the parent and the LEA, who would be able to conduct the MDR even before the LEA has made its eligibility determination, if the LEA cannot conduct the evaluation before the MDR. The group would likely consider the information that served as the LEA's basis of knowledge that the child may be a child with a disability under IDEA, such as concerns expressed by a parent, a teacher or other LEA personnel about a pattern of behavior demonstrated by the child. Based upon its review and consideration of the available information, the group would determine whether the conduct in question was caused by, or had a direct and substantial relationship to the child's suspected disability.

Letter to Zirkel, 73 IDELR 241 (OSEP 2019)

OSEP affirms that there is nothing in the IDEA which would prohibit children who have an IEP from receiving instruction using RTI or MTSS strategies, with the understanding that all special education and related services must continue to be provided consistent with each child's IEP.

*EDITOR's NOTE: Section 504 regulations regarding discrimination, at 34 C.F.R. 104.4, state that recipients of federal funds may not "limit a qualified handicapped person in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving an aid, benefit, or service."

Letter to Siegel, 74 IDELR 23 (OSEP 2019)

The regulations regarding students who transfer from one school district to another, within the same state and in the same school year, require that the receiving district provide comparable services until it adopts the IEP the student brings with him/her or develops a new IEP. This regulation does not address cases where a student moves to a new school during the summer. However, OSEP said that when a student transfers during the summer, the IDEA requires that an IEP be in effect at the beginning of the school year. OSEP summarized:

Therefore, public agencies must ensure that an IEP is in effect at the beginning of the school year for children who move into a new public agency during the summer. How a public agency meets this requirement is a matter to be decided by each individual new public agency. If the parent requests that the new public agency convene the IEP Team prior to the start of the school year and the public agency refuses to do so, the agency must provide written notice to the parent of the refusal. The prior written notice must include, among other content, an explanation of why the agency determined that conducting the

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meeting is not necessary to ensure the provision of appropriate services to the student. *Same for refusing a request for an IEP meeting with a PWN in Federal Register, March 12, 1999, Appendix A, p. 12476-12477.

Letter to Olex, 74 IDELR 22 (OSEP 2019)

Asked whether parent consent is required before conducting "age appropriate transition assessments," OSEP said this:

…we believe that generally, parental consent is not required prior to conducting an age appropriate transition assessment because the purpose of the assessment is to develop appropriate postsecondary IEP goals and not to determine whether a child has or continues to have a disability, and the nature and extent of the special education and related services that the child needs. If, however, the IEP Team determines that a reevaluation of the child is warranted in order to obtain additional data, based on the student's educational or related services needs including improved academic achievement and functional performance, the public agency is required to obtain parental consent consistent with 34 C.F.R. § 300.300(c).

Letter to Mills, 119 LRP 21572 (OSEP 2019)

OSEP says, "If a request for an initial evaluation has been made, the LEA must respond to the request through prior written notice, which includes among other content, an explanation of why the agency proposes or refuses to take the action. If the LEA believes an evaluation is not necessary because the child is not suspected of having a disability, it must issue written notice to the parent explaining why it is refusing to evaluate the child." OSEP has also said that if a parent requests a re-evaluation, the district may refuse to do so by issuing a prior written notice stating the refusal and the reason why the agency is refusing the request Federal Register, Aug. 14, 2006, p. 46640. For re-evaluations, the pertinent regulation is 34 C.F.R. § 300.303(a)(2), which says a public agency must ensure that a reevaluation of each child with a disability is conducted if the child's parent or teacher requests a reevaluation. Nevertheless, OSEP has made it clear that public agencies may refuse a request for a re-evaluation using a prior written notice. *Same for refusing a request for an IEP meeting with a PWN in Federal Register, March 12, 1999, Appendix A, p. 12476-12477.

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CASE LAW

*The two cases directly below illustrate some of the problems with due process

L.J. v. School Board of Broward County, Florida, 70 IDELR 260 (S.D. Fla. 2017)

The parents alleged that the district failed to implement the IEP, resulting in a denial of FAPE. The court found that any failure to implement the IEP was not a material failure (using the 5th Circuit standard). This case is remarkable for its length. There were two due process hearings, the first for 26 days with a 191-page decision, and the second, for 18 days over a six-month period. Fifteen months after the second hearing, the hearing officer issued a 101-page ruling in favor of the parent. This court overturned that decision. To be fair, after a hearing of this length a hearing officer will often order the parties to submit proposed findings of fact, and that can take significant time. But, here is a court in 2017 reviewing a due process order from 2011, for a hearing conducted in 2009, regarding an IEP from 2006-07.

* Intent for special education due process was a relatively short and informal hearing, but the need to establish a record for appeal has interfered.* Recent Kansas due process hearings have exceeded 10 days of hearing, over a thousand pages of transcript, hundreds of exhibits, and decisions in excess of 100 pages.* Cost is heavy fiscally and emotionally.

School District of Philadelphia v Kirsch, 71 IDELR 123 (3rd Cir. 2018)

The district did not have an IEP in place at the start of the 2013 school year for twins with autism, and did not develop an appropriate IEP until December. The parents set up a non-profit private school, called "A Step Up Academy (ASUA)." Parents entered into an irrevocable tuition contract with ASUA for the twins' enrollment in the school for the 2013-14 school year. ASUA charged the parents the following for each of the twins:

$35,000 basic annual tuition for the 2013-14 school year; $11,000.00 for an instructional assistant; $9,000.00 for individual speech therapy; $1,800.00 for individual occupational therapy; and $7,250.00 for a six-week Extended School Year ("ESY") program.

The twins' basic tuition included ABA-based behavior support, academic instruction, one individual and three group speech/language therapy sessions per week, and one individual and three group occupational therapy sessions per week. The court found the parents were entitled to tuition reimbursement from September 2013 to December 2013 because of the failure to have an IEP in place during that period of time. But, because "stay put" was in place during the entire litigation from the filing for due process in October of 2013 until this decision in 2018, the school had to reimburse the tuition for the entire 2013 school year and all of the next three school years that totaled almost $500,000, plus attorneys' fees.

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E.R. v. Spring Branch Independent School District, 73 IDELR 112 (5th Cir. 2018)

Part of the definition of the term "FAPE" is to develop an IEP that meets state standards. However, this court said it is not necessary to base an IEP on state grade-level standards or grade level advancement, particularly when there is a high likelihood that the child would not be able to meet those standards. Citing the Endrew F. standard for FAPE, the court said, "Notably, this standard uses 'appropriately'; accordingly, it does not require ambitions beyond what may be reasonably expected given the circumstances." The court added, "The IEP standard is not perfection. Endrew F., 137 S. Ct. at 999 (citing Rowley, 458 U.S. at 206-07) ("Any review of an IEP must appreciate that the question is whether the IEP is reasonable, not whether the court regards it as ideal." (emphasis in original)). It simply 'must aim to enable the child to make progress'.". And, of course, that progress must be appropriate in light of the child's circumstances. In L.H. v. Hamilton County Department of Education, 68 IDELR 274 (E.D. TN 2016), the court put it this way:

The annual goals must be designed to meet the child's needs that result from the child's disability to enable the child to be involved in and make progress in the general education curriculum. Then the court said: "From these provisions, the Court divines the following relevant principles. IEP goals are to be firmly grounded in a child's current abilities, but aligned with, or pointed toward, the applicable general-education standards for the child's current grade level. The role of special-education services and supports, then, is to enable the child to make appropriate progress toward these goals, thereby accessing the general-education curriculum as intended by the IDEA…To put it in more concrete terms, if a child's current level of performance is the ground, and the general-education grade-level standard is the roof, special-education supports and services provided pursuant to an IEP are intended to function as a ladder upon which a child can climb from his or her current level of performance toward the general-education curriculum…Sticking with this analogy, the relevant question is how far and how fast a child must climb that ladder to remain in the regular-education classroom. The language of § 1414(d)(1)(A)(i)(II) -- that the IEP must contain 'annual goals ... designed to ... enable the child to be involved in and make progress in the general education curriculum’ -- strongly implies that IEP goals need not be pegged to the top of the ladder, with mainstreaming predicated on achieving those goals. Rather, IEP goals should be set as far up the ladder as the child can reasonably be expected to progress within one school year.

T.B. v. Prince George's Co. Bd. Of Ed., 72 IDELR 171 (4th Cir. 2018)

In this "child find" case, the 4th Circuit Court said the district committed a procedural violation by not evaluating a student with an emotional disability earlier. Although there was a procedural violation, it was not a violation of FAPE because even after the evaluation was completed and an IEP developed, the student showed no interest in academics and refused

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to come to school. Thus, the procedural violation was not the cause of the student's educational detriment (a prerequisite for relief).

This court then concluded:

Every child possesses a gift within, something unique that he or she can contribute to society. Many times special education is needed to nurture that gift. But there are times too when students need to assist educators in developing their own inner capabilities. Poor motivation and poor performance do not always and invariably lie at the feet of teachers and schools. Students themselves also have to try.

This was not a unanimous decision by the three-judge panel. The dissenting judge said:

The easy explanation for T.B.'s educational demise is that he did not attend school regularly, and when he did, he did not put forth his best effort. The unfortunate reality of this case, however, is that the evidence presented at the due process hearing fails to answer the obvious question: "Why?" In the special education context, the answer is rarely that a student "simply does not want to go to school." J.A. 31. While one could certainly argue that the ALJ's conclusion that T.B. would not have come to school even with an appropriate IEP was speculative, the plaintiffs' evidence offered nothing to counter it.

K.D. v. Downingtown Area School District, 904 F.3d 248, 72 IDELR 261 (3rd Cir. 2018)

This case involved a third-grade girl with multiple disabilities, who was making slow, but steady progress, but falling behind her peers. The parent's challenged her third-grade IEP. At the initial hearing, which occurred before the Supreme Court's ruling in Endrew, the hearing officer used the Third Circuit standard for FAPE [meaningful benefit] in concluding that the student was receiving a FAPE. On appeal, the District Court said it was not error to use the "meaningful benefit" standard because, in Endrew, the Supreme Court "simply affirmed the standard that has been used in the Third Circuit for years." On further appeal, the Third Circuit agreed, saying "But Endrew F. did not overrule our precedent." It added:

The Supreme Court rejected the Tenth Circuit's standard, not ours. On the contrary, Endrew F.'s language parallels that of our precedents. The Court held that the IDEA 'requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances.' That language mirrors our longstanding formulation: the educational program "must be reasonably calculated to enable the child to receive meaningful educational benefits in light of the student's intellectual potential and individual abilities." Our test requires an educational program 'likely to produce progress, not regression or trivial educational advancement.' (Citations omitted).

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With regard to the limited progress made by this student, the court said:

While courts can expect fully integrated students to advance with their grades, they cannot necessarily expect the same of less-integrated students. As Endrew F. explained, "for a child fully integrated in the regular classroom, an IEP typically should ... be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade." But the District Court found that K.D. was not fully integrated into the regular classroom. Instead, she received supplemental learning support for much of the day. So there is no reason to presume that she should advance at the same pace as her grade-level peers (citations omitted).

The Court said slow progress does not prove that this student's IEPs were not challenging enough or updated enough. Progress must be meaningful, or in the words of the Supreme Court, appropriate in light of the student’s circumstances.

The 9th Circuit has also said the Endrew F. decision did not change the 9th Circuit's FAPE standard. In E.F. v. Newport Mesa USD, 71 IDELR 161 (9th Cir. 2018), the court noted that the Supreme Court rejected the Tenth Circuit's interpretation that the Rowley decision permitted merely a de minimis standard for measuring progress, but added, "We have already noted that Endrew did not change, but simply clarified Rowley. M.C. v. Antelope Valley Union High Sch. Dist., 858 F.3d 1189, 1200 (9th Cir. 2017). Consequently, the ALJ's application of the Ninth Circuit's standard was proper even before Endrew clarified the Supreme Court's holding in Rowley.”

C.D. v Natick Public School District, 74 IDELR 121 (4th Cir. 2019)

The 4th Circuit held that the standard in Endrew F. is compatible with the "meaningful educational benefit" standard. Thus, FAPE means a meaningful educational benefit in light of the child's circumstances. The court also said language in Endrew F. about ambitious and challenging goals did not set that language apart as independent tests of FAPE. Instead, the court said: "In short, Endrew F. used terms like 'demanding,' 'challenging,' and 'ambitious' to define 'progress appropriate in light of the child's circumstances, not to announce a separate dimension of the FAPE requirement." So, the court rejected the argument that Endrew F. set a two-part analysis for FAPE. The court added that: "Depending on context, determining whether an IEP is reasonably calculated to offer meaningful progress may or may not require a sub-inquiry into how challenging the plan is."

E.I.H. v. Fair Lawn Board of Education, 72 IDELR 263 (3rd Cir. 2018)

A girl with autism had transportation specified in her IEP. She was later diagnosed with epilepsy and prescribed Diastat, a medication that must be administered rectally for seizures lasting longer than two minutes. Her parents requested that a medical professional who could administer the medication be on board the bus taking the student to and from school. The IEP

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team agreed the student needed this support, but declined to put it in the IEP because it was a need related to a medical condition that was not part of her autism and was not needed for educational purposes. Recognizing the student's need for this service, although the district did not put in in the IEP, the district did agree to put a nurse on the bus in the student's Individualized Health Plan (IHP). The hearing officer ruled that the nurse's presence on the bus was a related service and needed to be added to the IEP, and ordered the district to do so, and to reimburse the parents $192.00 for the cost of transporting their daughter to and from school until the nurse was provided. The parents initiated a court action seeking attorney's fees. The school then made a cross claim against the ruling that the nurse services on the bus needed to be in the IEP. The District Court ruled in favor of the district, holding that the nurse was simply a health precaution that had nothing to do with the child's education. The parents appealed to the United States Circuit Court of Appeals for the Third Circuit. The Third Circuit noted that the definition of the term related services is: "Transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education…;" The court laid down as a guiding principle that "Anything considered to be a 'related service' -- i.e., a service necessary to assist a qualifying student in obtaining an education -- must be listed in the student's IEP." The court said both parties agreed that the student could not take the bus unless a nurse was provided to administer the medication when needed. Accepting that, the Third Circuit said, "it stands to reason that she would not be able to access her FAPE without the nurse. And, if that is the case, then the ALJ was correct to include the nurse within L.H.'s IEP as opposed to IHP." In a foot note, the court indicated whether the nurse services were in an IHP or an IEP made a difference because, unlike a Health Care Plan, an IEP cannot unilaterally be changed or disregarded at will. The Third Circuit overturned the District Court decision and ordered the nurse to be added to the IEP as a related service and that the parents were entitled to attorney's fees. * Same result as Donald B. v. Bd. Of Sch. Comm. Of Mobile County, Ala., 26 IDELR 414 (11th Cir. 1997), where the court said a school may have to provide transportation to a child with a speech impairment, who is fully mobile, if, “in its absence, a disabled child … would be denied a genuine opportunity for equitable participation in [a special education program].”

Albuquerque Public Schools, 74 IDELR 29 (SEA NM 2018)

A three-year old student was prescribed medical cannabis three times per day to control seizures. New Mexico law allows the use of medical cannabis, but prohibits the possession or use of cannabis on school property. Federal law also prohibited possession or use of cannabis at school. The IEP team refused to consider home instruction as a placement option. The hearing officer ruled that because the child needed medication that the district could not legally administer at school, the home was the least restrictive environment for at least part of the school day, with part of the day also allocated to attendance at school.

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Sioux Falls School District, 74 IDELR 57 (SEA SD 2019)

Parents filed a state complaint with the South Dakota Department of Education alleging that the school district failed to give due consideration to their request to place the student in a residential program. The investigator determined that the school had given sufficient consideration to the parents' request after examining the Prior Written Notice (PWN). The PWN explained that the parents' request was refused because the school was able to meet the student's needs at the school and the student was making progress. This kind of notice could be stronger if the school included supporting data.

QUESTIONS AND ANSWERS:

Q1. We have a child who has been at Children's Mercy Hospital in Kansas City, Missouri for 6 months, and in isolation for an immune issue. The parents have notified the district that he will soon be able to have educational services in the hospital. What is our obligation?

A1. This situation is not directly addressed in law. However, the IDEA applies to all children with disabilities. So, what happens when a parent places their child in an out-of-state facility, and the other state takes the position that it is not obligated to provide services to the child under the IDEA because the child is not a resident of that state? If the state where the parents live also take the position that it has no IDEA responsibility because the student is no longer living within the state, we have a child who has fallen through a crack, where no state has responsibility. Although there are some exceptions, courts have been generally unwilling to let children with disabilities fall through such a crack, and will assign responsibility where it most belongs –usually to the state and district where the child’s parents live.

We have such a case in our circuit. In Jefferson County v. Elizabeth E., 60 IDELR 91 (10th Cir. 2012) the United States Circuit Court of Appeals for the Tenth Circuit dealt with a situation where the parents and child lived in Colorado. The parents placed their child in a psychiatric residential treatment facility in Utah, and then transferred the child to another residential facility in Idaho for a lengthy stay. Meanwhile, the parents wanted to continue to talk to the Colorado district about the child’s placement and on-going evaluation in Colorado. The Colorado district took the position that because the student was no longer living in Colorado, it had no obligation to the student under the IDEA (IDEA Limbo).

The main focus of the Tenth Circuit's decision was on how to analyze the conditions under which a district was required to pay for a residential placement. Near the end of this decision, the Tenth Circuit cited, with approval, Catlin v. Sobol, 93 F.3d 1112 (2nd Cir. 1996), and that court's determination that “under the IDEA a child’s residence is the same as that of the child’s parents.” In the next section of the case, the Tenth Circuit applies that analysis to this case and says the Colorado district’s position that it had no ongoing IDEA responsibility for this child because the child was physically living in Idaho, was wrong. The Colorado district

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remained the responsible district, and retained all IDEA obligations. The school had responded to the parents requests to continue with the on-going evaluation and to conduct an IEP meeting with a “ready, willing, and able” letter, stating it would continue with the evaluation and IEP development when the child returned to Colorado. The court said that was insufficient. The district was required to meet IDEA requirements, including the requirement to respond to the parent’s requests with a PWN.

This decision did not say that the Colorado district needed to provide services in Idaho when the placement was made unilaterally by the parent. Rather, it said that the district was required to continue its IDEA responsibilities to this child, and that included continuing the on-going evaluation, continuing IEP meetings to discuss proposed services, placement, etc. Had the district done so, perhaps the IEP team would have reached a decision that would have offered a FAPE under the circumstances, and the child could have returned to Colorado. Because it did not do so, the court found the district had failed to offer a FAPE to this student and the cost of the Idaho placement, including the residential costs, fell on the Colorado district.

Also noteworthy for this issue, is the Kansas statute, at K.S.A. 72-3410(b). That statute says that if a child with a disability, upon referral by a person licensed to practice medicine, is admitted to a hospital, treatment center, or other health care institution, or to a group boarding home or other care facility, and the institution or facility is located outside the school district in which the child resides, the district where the facility is located may contract with the district where the parent of the child resides to provide special education and related services. If a contract is not entered into between the school districts, the child is deemed to be a student in the district which is providing special education services to the student. This statute adds: "Nothing in this subsection shall be construed to limit or supersede or in any manner affect or diminish the requirements of compliance by each school district with the provisions of subsection (a) [addressing child find], but shall operate as a comity of school districts in assuring the provision of special education services for each exceptional child in the state [emphasis added]."

Q2. I have heard that when an IEP team cannot reach consensus with regard to what goes into an IEP, the LEA representative on the team makes the decision. Does that mean that if everyone on the team believes the student needs a particular service, the LEA representative can just veto the whole team?

A2. In Letter to Richards, 55 IDELR 107 (OSEP 2010), OSEP said the IEP team should work toward a general agreement, but the school is ultimately responsible for ensuring the IEP includes the services that the child needs in order to receive a free appropriate public education (FAPE). It is not appropriate to make IEP decisions based on a majority vote. If the team cannot reach agreement, the public agency must determine the appropriate services and provide the parents with prior written notice of the agency’s determinations regarding the child’s educational program and of the parent’s right to seek resolution of disagreements through

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due process or a state complaint. * EDITORS NOTE: This is not a blank check. If a parent requests a due process hearing or files a state complaint, and all members of the IEP team differ from the LEA representative, the parent will likely prevail.

Q3. We sometimes conduct a re-evaluation for a limited purpose, such as to determine whether a related service is still necessary. Do we have to, or may we, extend the date for the triennial evaluation to three years from the date of this limited evaluation?

A3. The re-evaluations described here are insufficient to satisfy the requirements of the three-year reevaluation regulation, at 34 C.F.R. 300.303.

There are two specific regulations for reevaluations. They are 300.303 and 300.305.

300.303 says: “A public agency must ensure that a reevaluation of each child with a disability is conducted in accordance with §§ 304 through 300.311…” So, reevaluations have the same requirements as initial evaluations, which includes the requirement in 300.304(c)(4) that a child be assessed in all areas related to the suspected disability, including, if appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities. Accordingly, to satisfy the three-year reevaluation requirement, the reevaluation would need to satisfy this requirement that the child be assessed in all areas related to the disability.

There is also 300.305, which requires, as part of an initial evaluation, if appropriate, and as part of any reevaluation, the IEP team must review existing evaluation data, and under 300.305(a)(2)(B) determine: whether the child continues to have a disability; the present levels of academic achievement and related developmental needs of the child; whether the child continues to need special education and related services; and whether any additions or modifications to the special education and related services are needed to enable the child to meet the measurable annual goals set out in the IEP of the child and to participate, as appropriate, in the general education curriculum.

In other words, to satisfy the three-year reevaluation requirement, the reevaluation must be a full reevaluation that is conducted in accordance with all of the requirements in §§ 300.304 through 300.11, including both 300.304(c)(4) (assessed in all areas related to the disability), and specifically including the requirements in 300.305. Despite the regulations that say “any reevaluation” must include everything in 300.304 through 300.311, that appears to apply only to any re-evaluation that serves as the three-year reevaluation. There are many reevaluations that are conducted with much more limited scope. It is important to conduct those limited reevaluations from time to time, but those limited reevaluations do not meet the requirements to constitute a three-year reevaluation, as that term is described in 300.303(a).

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Q4. We evaluated a student who qualified for special education, developed an IEP, and made multiple attempts to have a meeting with the parents to sign the paperwork (consent), but the parents never showed up. May we go ahead and place the student since we made multiple attempts to have a meeting?

A4. Do not confuse the ability to conduct a meeting without the parents after multiple attempts to schedule a meeting with the consent requirement for the initial evaluation and initial IEP. While there is an exception to the consent requirement for a re-evaluation, a material change in services, and a substantial change in placement, there is no exception for the consent requirements related to the initial evaluation and initial IEP.

In K.S.A. 72-3430, paragraph 6, the statute says parents have a right to consent or refuse to consent to a substantial change in placement or a material change in services, unless those changes are ordered pursuant to the disciplinary authority of school officials under the law [72-3433], or if the child’s parents fail to respond to the request for consent. Note that the last sentence says that if there is a failure to respond to a request for consent for a material change in services or a substantial change in placement, there must be detailed records of all contacts with the parents to demonstrate both (a) the request for consent and (b) any response.

Accordingly, if, after an IEP meeting is completed, a request for consent is made regarding a proposed material change in services or a substantial change in placement, and the parents fail to respond to that request within a reasonable time (15 school days), the school may implement the proposed changes without consent. When those changes mean the student will no longer receive any services, however, there must also be a reevaluation that supports the decision that the student is no longer eligible for special education. That is a federal requirement, at 34 C.F.R. 300.305(e).

This process requires the district to schedule a meeting. The district should send two notices of that meeting to the parents in two different ways and if the parents do not come to that meeting, the team may proceed to make proposed changes to the IEP. Then, a PWN and request for consent is sent home to the parents. If the IEP date is Feb 8 and the parents do not respond within 15 school days, the proposed changes could be made in 15 school days from Feb 8. That could include ending services if the proper re-evaluation had been conducted.

In addition, Kansas Administrative Regulation 91-40-27(g) says the same thing as the statute. This Kansas regulation however, adds reevaluations to this authority to proceed without consent, when the parents fail to respond to a request for consent to a re-evaluation [this would also include giving the parents a reasonable time to respond to the request for consent – that is where the 15 school days comes in]. This regulation also adds that consent is not needed for a material change in services if that change is due to graduation from high school with a regular education diploma.

* Note, the time to give the parents to respond is not 15 days. It is 15 school days.

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Q5. With regard to the 10-day notice for an IEP meeting, the location of the meeting is required. Does that mean the notice must include the specific room number? Sometimes that is difficult to schedule.

A5. There is no official guidance on that issue. Of course, putting the room number where the meeting will take place would almost always be adequate. So, that is the preferred method, but because the law does not directly address this question, there is some flexibility. If a specific room number is not on the notice, the notice must provide a reasonable description of the location. That is somewhat subjective. From a compliance standpoint, the question would be “Would a reasonable person be able to find the meeting with reasonable effort?” A notice that said the meeting would be held in Kansas, for example, is clearly not reasonable (and therefore not adequate) notice. Even notice that says the meeting will be in a particular building may not be reasonable if the building is a large building, at Topeka High School for example. People can argue about whether that kind of notice is adequate, and if people are arguing there is a problem with the reasonableness of the notice.

There are times where a notice of meeting goes out and the exact location for that meeting has not yet been reserved. That notice could be adequate notice if it describes how parents will be reasonably able to find the meeting. For example, the notice could say “The meeting will be located at Topeka High School. It is a large building. Please go directly to the business office, Room 4, and show a staff member this notice. You will be given instructions on how to find the location of the meeting or be escorted to the meeting room.” Something like this provides a reasonable explanation of the location of the meeting because it enables a reasonable person to able to find the meeting room with reasonable effort, and could even be standard language on a district’s notice of meeting.

Q6. Can the excusal process for IEP members be used for the LEA representative on the team?

A6. Yes, an LEA representative may use the excusal process to be excused from an IEP meeting in whole or in part. The federal regulation says this process may be used by team members described in paragraphs (a)(2) through (a)(5) of regulation § 300.321. (a)(2) is the regular education teacher of the child, (a)(3) is the special education teacher of the child; (a)(4) is the LEA representative; and (a)(5) is the individual who can interpret instructional implications of evaluation results. So, the only members of the IEP team who are not part of the excusal process are the parent, the student (if the student has been invited as a member of the team), and those invited to the meeting as members of the team who have knowledge or special expertise of the child.

It would generally be unwise to have an IEP meeting without an LEA representative because the district is going to be bound by whatever that team puts into the IEP. A better course of action would be for the LEA representative to appoint some other (trusted) person to act as the LEA representative at the meeting. Federal regulations, at 34 C.F.R. § 300.321(d) specifically allow an LEA representative to designate another member of the IEP team to act as the LEA representative, as long as that other member of the team meets the requirements to be an LEA

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representative. Those requirements are: [1] is qualified to provide or supervise the provision of special education services; [2] is knowledgeable about the general education curriculum; and [3] is knowledgeable about the availability of resources of the district.

Q7. A mother is asking that we not provide a copy of the IEP to the father because there is a Protection from Abuse order in place and the father does not know where the children live or go to school. This information is on the IEP and the mother believes she and the children would be in danger if the father had this information.

A7. A parent has a right to inspect and review the education records of their children. However, FERPA regulations, at 34 C.F.R. 99.4, say parents have this right “unless the educational agency or institution has been provided evidence that there is a court order, State statute, or legally binding document relating to such matters as divorce, separation, or custody that specifically revokes these rights.” The specific Protection from Abuse order referenced in this question did not revoke the parent’s right to access education records, but it did specifically provide that the mother’s address and telephone number shall remain confidential for her protection. So, it does look like a redacted IEP omitting at least the address and telephone number of the mother would be proper.

In Letter to Anonymous, 21 FAB 7 (FPCO 2017) the Family Policy Compliance Office (FPCO), the office in the U.S. Dept. of Education which oversees FERPA, addressed a situation where a father filed a complaint against a school district which only gave the father a redacted copy of education records. The father took the only action available to him by filing a complaint with the FPCO [a parent does not have a right to a due process hearing over this kind of allegation]. The FPCO cited the same regulation referred to above, and then went even further, adding that:

However, we have historically advised that, if school officials are concerned for the safety of the student or custodial parent or if a restraining order preventing contact exists, the school would not be required to disclose the student's contact information, such as home address and telephone number, or the name of the school within the district in which a student is enrolled (emphasis in bold print added).

The FPCO then closed the complaint without conducting a full investigation. Notice that the FPCO said if school officials are concerned for the safety of the student or the custodial parent or if there was a restraining order. If a complaint were to be filed with SETS, SETS would apply the same standard as the FPCO applied in this complaint.

When there is a legitimate safety concern, the safety of the children and the custodial parent is the primary consideration. So, when there is such a legitimate safety concern, or there is an order from a court restricting information from a parent due to safety concerns, the better course of action is to provide parents with a redacted copy of education records which omits the kind of information the FPCO indicated could be redacted. That would not only include the

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address where a mother or children are living and the telephone number of such a residence, but also information regarding where the children are attending school.

Q8 Please let me know if the manifestation meeting is required to take place prior to any disciplinary change of placement decision for a student identified for special education. We asked that they allow the manifestation meeting prior to their board voting on a long-term suspension last night. We were denied and they held the long-term suspension decision. We will have our manifestation meeting Friday. However, it would appear the sped law states that any sped student being considered for a long-term suspension should have a manifestation determination prior to that decision.

A8. Federal regulations, at 34 C.F.R. 300.530(e), state that the manifestation determination review (MDR) be conducted within 10 school days of any decision to change the placement of a child with a disability for a violation of a student code of conduct. The decision to change a child’s placement for a violation of a student code of conduct is made by the disciplinary due process hearing officer, after a review of all the evidence. Some schools prefer to conduct the MDR before conducting the disciplinary due process hearing, others choose to conduct the due process hearing first. The law does not require one before the other. The only requirement is that if the disciplinary due process hearing is conducted before the MDR, the MDR must be conducted within 10 schools days of that hearing. There is nothing illegal, or even irregular about conducting a disciplinary due process hearing before conducting the MDR. However, conducting the MDR before the hearing might be prudent if the team is leaning toward determining the behavior is a manifestation of the disability, thus rendering the hearing moot. Also note that a school district must conduct an MDR before the child reaches more than 10 consecutive school days of suspension as a result of a disciplinary removal.

Q9. Evaluation---parent and school agree to evaluate a student and agree on what assessments are needed. Parent and school agree that since there are only 15 school days left in school year, it would be recommended to wait to initiate the evaluation in the fall for the reasons they considered. What is the recommended documentation for that decision?

A9. When all agree that an evaluation should be conducted and that it would be better to begin the evaluation at the beginning of the new school year, a better practice is to get everything set up while you are working on it. The school could elect to give the parents a PWN proposing to conduct an evaluation, as described in the PWN, and request consent from the parents. On the consent page, there is a check box and the “I give consent…” paragraph. Just below that paragraph, a statement could be added to state something like: “This consent is effective beginning on August 20, 2019."

Using this procedure, the school cannot proceed with the evaluation until the consent becomes effective. That gets everything done, and still delays the beginning of the evaluation to August 20, and starts the 60 school day time line for completing the evaluation on August 20. It is just a nice way to get everything set up while people are thinking about it and in agreement, and

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still delaying the process to the time the parties agree would be most appropriate. Although, not required, the PWN could explain why the parties are delaying consent.

Of course, the parents would always have to be in agreement to use this process to delay an evaluation because it is the parents who would be voluntarily delaying the effective date of their consent. If you use this method, there should be some calendar procedure established to remind school personnel that the evaluation timeline for this child is set to begin in August (or whatever date is chosen).

Q10. I have a team that is in the process of doing a re-evaluation and as part of it we are doing an FBA. Data is being collected on a data sheet that is then uploaded into an application on the computer to be sorted and graphed. The paper part of the data sheet has teacher notes and such on it. We first started to share with the parent but it became quickly apparent that the parent was not interpreting the sheet accurately. We went to sending home a daily schedule with notes. The parent has requested that they get copies of the daily recording sheet or “raw data” which have staff notes on it to share with a doctor. Are we required to provide “raw” data or teacher note data or can the summary results be enough?” So is the “raw data “ considered teacher notes or a part of the student’s educational records if it is not put in the student’s file? What is required for us to share?

A10. Parents have a right to inspect and review the education records of their child. An education record is defined as any information recorded in any way that has personally identifiable information of the student and is maintained by the school district. So, that is a really broad definition.

If the data sheets have the students name or other personal identifier on them, and are maintained by the district, they are education records and the parent has a right to inspect and review them. If the data sheets do not have a personal identifier on them, they would not be an education record and the parent would not have a right to review them, even if they were maintained by the district. There is an exception for certain personal notes because the definition of the term "education record" does not include records that are kept in the sole possession of the maker, are used only as a personal memory aid, and are not accessible or revealed to any other person except a temporary substitute for the maker of the record. The teacher notes you describe would not meet this exception because they were not kept in the sole possession of the maker and they were revealed to other persons.

In short, if these data sheets have personally identifiable information of the student, they are education records and the parent has a right to inspect and review them.

Q11. A student's team is in the process of conducting a reevaluation. The date to meet with the parent to review the reevaluation results has been set. Parent is requesting a copy of the reevaluation report prior to the reevaluation meeting. Can you provide us guidance regarding this request?

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A11 There is no reason to deny such a request. The school personnel will have had that opportunity. It is only right that a parent have the same opportunity. And, it would probably be helpful for all involved if the parent has had a chance to look at it prior to the meetings so the parent does not have to slow down the meeting to do reading for the first time at the meeting. The report may include recommendations, but any final decisions must be made by the team.

Q12. A product called AngelSense (or something similar) allows parents to listen to their child while they’re at school (and despite what the website may claim, it also seems that the parent could listen to other students, adults in the room, etc.). We’ve got a parent that is demanding that her child be allowed to wear it, and telling us that there are not any FERPA or confidentiality issues. I’m assuming if I pushback I’m going to get questions such as “how would this be any different than me visiting the classroom? I hear other students and staff when I drop by to see my child in-person?”

A 12. FERPA protects information derived from tangible records. FERPA does not protect the confidentiality of information derived from a source other than education records, even if education records exist which contain that information. As a general rule, information that is obtained through personal knowledge or observation, or hearsay, and not from an education record, is not protected from disclosure under FERPA. See Letter to Weston, 12 FAB 13 (FPCO 2006)

So, there probably is not much difference between using this product and a parent making a personal visit to the classroom. That does not mean such a request must be granted. Parents do not have a right to equip their child with such a product. If it is going to be allowed in the classroom, that would be subject to the agreement of the district to allow it. There may be some legitimate reasons for allowing it and some legitimate reasons for denying the request.

The word “probably” is used quite a lot in this response because there could be conversations which would be a violation of FERPA even when a parent is visiting or when a student is using AngelSense. For example, a teacher may be informing a para about information in a student’s IEP, including identifying the student’s disability, how that disability manifests itself, and the precise services the IEP requires for that student. That is information derived from an education record and is the kind of information that may not be disclosed without parent consent, including to a visitor to the classroom and including a virtual visitor, through AngelSense. For that reason, having AngelSense in the room may result in restricting the manner in which school personnel converse with each other and with students during class time. That restriction on communication may interfere with insuring that the needs of the students in the room are being met. Of course, there are also obvious benefits of using a device like AngelSense in that it can be used to verify that services are being provided and that students are being treated fairly and with dignity.

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In short, the parent will not find a right to equip their child with AngelSense, or any like equipment, in the Parent’s Rights in Special Education document, precisely because there is no such right. Whether it is to be permitted in any specific circumstance, could be addressed by an IEP team when considering whether the device is necessary in order to provide a FAPE: and the request should be considered by the IEP team if a parent requests that the IEP specify the use of AngelSense. Otherwise, whether it can come into the classroom is an administrative decision.

Q13. To qualify for Other Health Impairment, is it required to have a medical diagnosis of the health impairment, and, if so, does the school district have to pay for the diagnosis?

A13. The Office of Special Education Programs (OSEP) discussed this question in its comments to the 1999 federal regulations, and the current regulations regarding eligibility under OHI remain unchanged. These comments can be found in the Federal Register, March 12, 1999, on page 12542-12543.

In these comments, OSEP said the disability category of Other Health Impairment (OHI) does not require a medical diagnosis. The evaluation to determine whether a child has an OHI is an educational evaluation, not a medical evaluation, and was intended to be determined, largely by educational professionals and parents. To find a child eligible, the team needs to determine whether a child has limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment that is due to a chronic or acute health problem (and, as a result needs specially designed instruction). That is all. The rest of the definition of OHI, which lists some possible medical conditions that could be the source of the limited strength, vitality, or alertness that is due to a chronic or acute health problem, is merely an illustrative list. There is no requirement that an eligibility team identify the specific physical condition that is producing the limited strength, vitality, or alertness.

The Eligibility Indicators document on the KSDE website is consistent with this OSEP guidance. As you indicated, that document says one of the requirements for OHI is: Records contain medical information which document chronic or acute health problems including:…

The word “including” simply precedes a list of possible conditions which might be producing the chronic or acute health problem. The eligibility team needs only “medical information” which documents chronic or acute health problems. But, the “medical information” does not need to identify a specific medical condition, and does not have to be based on a medical diagnosis. The “medical information” only has to show that there is a limited strength, vitality, or alertness which is due to a chronic or acute health problem. That information may come from a variety of sources, including teacher observations. Educators and parents can usually make this kind of decision without obtaining a specific medical diagnosis. In short, an eligibility team is not required to also identify the specific physical condition that is producing the limited strength, vitality, or alertness that is due to a chronic or acute health problem.

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As to your second question, these same comments by OSEP, state that if a school district requires a specific medical diagnosis in order for a student to qualify under OHI, that district must pay any costs connected with obtaining that diagnosis. The reason the district would have to pay for the medical diagnosis is that the district has, itself, made that diagnosis a required part of the evaluation and eligibility process, which must be completed at no cost to the parent.

Q14. I am a school psychologist who is going to be the administrative designee at an IEP / eligibility meeting. Everyone at the meeting is likely to agree that the child no longer qualifies for special education except the parents. I know that if the parents don't agree to ending the IEP she will continue in special education. My question is if I, as administrative designee, do not agree with continuing eligibility, does that create a legal problem for the Local District or an obligation to continue to fight the eligibility status?

A14. No. There is no legal problem, and no obligation to continue to fight the eligibility status (which would be a losing fight you would almost certainly never win because the law requiring parent consent would be against you).

If, after a re-evaluation, the team determines a student is no longer eligible for special education, that does not relieve the school district from continuing to implement the IEP because there are other laws that are applicable to that situation. One of those laws, as you know, is the Kansas law that requires parent consent to make a material change in services or a substantial change in placement. If parents do not give that consent, a Kansas school district is precluded by law from ending services (because ending services would be both a material change in services and a substantial change in placement). Accordingly, in the situation you describe, an IEP team could reduce the frequency or duration of services by up to 24% for such a student, but cannot end services.

Q15. Am I correct that if a parent wants to sign their special education minor child out of school, they need to withdraw them from special education first?

A15. In most cases that is correct. The Kansas compulsory education statute for general education students, K.S.A. 72-3120, says a student, beginning at age 16, may drop out if the parents and student attend a counseling session regarding the benefits of remaining in school. However, special education students cannot use that process because that statute says it does not apply to special education students. For special education students, the compulsory attendance statute is K.S.A. 72-3421. That statute has no drop out provision. But, if parents revoke consent for all special education services, the student is then treated as a general education student and can use the drop out provision in K.S.A. 72-3120. This is just a long explanation saying you are correct, with the note that parents may also provide special education for their children privately. If they are doing so, they may also withdraw their child from school for that purpose.

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Q16. A parent is wanting services while homeschooling. Here is what she indicated:

"Our homeschool is registered with the state and is considered a non -accredited private school, and as I was informed by local authorities, eligible for funding for speech services."

If they are not enrolled in an accredited school, it is my understanding that we do not provide services. Is this correct?

A16. KSDE registers home schools under the authority of K.S.A. 72-4345. These home schools are titled “Nonaccredited private schools.” These schools qualify as Nonaccredited private schools simply through registration. There is no state oversight of these schools, and they may or may not meet the requirements of the Kansas compulsory attendance statute. The title given these schools can be misleading with regard to special education requirements relating to private schools because the term “private school” has a different meaning when applied to special education requirements.

For special education purposes, all of the state requirements regarding special education to students enrolled in a private school apply only to students who are attending a “private nonprofit elementary or secondary school,” as that term is defined in K.S.A. 72-3461. That statute defines the term “private nonprofit elementary or secondary school” to mean “an organization which regularly offers education at the elementary or secondary level, which is exempt from federal income taxation under section 501 of the federal internal revenue code of 1954, as amended, which conforms to the civil rights act of 1964, and attendance at which satisfies any compulsory school attendance laws of this state.”

There are very few home schools which qualify as a “private nonprofit elementary or secondary school” under this statute. Principally, to qualify, these home schools must be an organization. That is, they must have some kind of incorporation or other organizational status. They must have a 501(c) tax exemption. They must be open to children of all races, gender, national origin, and children with disabilities, and they must satisfy the Kansas compulsory attendance statute.

Under the compulsory attendance statute, K.S.A. 72-3120, schools comply with the compulsory attendance laws of Kansas only if they are either a public school, a private school, a denominational school, or a parochial school. Moreover, to comply with the compulsory attendance statute, K.S.A. 72-3120 requires the private, denominational, or parochial school to have a competent instructor and to operate for a time period which is substantially equivalent to the period of time the public school is maintained in the district where the private school is located.

Accordingly, the mere registration of a home school under K.S.A. 72-4345 is not sufficient to qualify that home school [or Nonaccredited Private School] as “private nonprofit elementary or secondary school” that is subject to the special education requirements in the Kansas Special Education for Exceptional Children Act. In general, home schools are not considered to

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be a private school for special education purposes, and so Kansas special education requirements do not generally apply to homeschools. That is not to say that a home school could never be a private school for special education purposes. However, to meet the requirements in K.S.A. 72-3461 to be a private, nonprofit elementary or secondary school subject to special education requirements, a home school registered under K.SA. 72-4345 would have to show that it also qualifies as a private, nonprofit elementary or secondary school under the requirements set by K.S.A. 72-3461. That would be an exceedingly rare home school, but it could happen. So if a parent operating a home school claims to also be operating a “private nonprofit elementary or secondary school,” as defined in K.S.A. 72-3461, the district may require that parent to establish that the home school also complies with all of the requirements of K.S.A. 72-3461, which includes meeting all of the requirements of the Kansas compulsory attendance statute.

Note, however, that, under Section 504, public schools must treat children with disabilities in the same manner as regular education children. So, if a district does permit parents of regular education students who are home schooled to enroll in the public school on a part-time basis to take the coursework of their choice, then, of course, it would also need to permit children with IEPs to do the same thing, and that would include an option to receive special education if requested.

If the district does not permit partial enrollment for children who are being homeschooled, it is not required to permit children with disabilities who are being homeschooled to enroll part-time, unless the home school actually does qualify as a private school under the Kansas statute [as discussed below].

Q17. Can we be vague in our services? Like can a Speech Path write in the IEP that they will see the student for 8 sessions in a month for 20 minutes each session so they can see the student whenever, as long as its 8 in a month? It might be twice a week or one week be only once but the next week be 3 times?? Or do we have to be specific in the IEP and say we are going to see them twice a week, every week for 20 minutes??

A17. The IEP cannot be vague. It must be specific in the way it describes the frequency and duration of services. But, what you are proposing is not vague. It is not vague because it is specific enough to be able to tell whether or not it has been implemented. If 8 sessions for 20 minutes each are provided each month, then the service will have been provided as specified in the IEP, and if not, not. And any reasonable person implementing the IEP would be able to do that calculation. The better word for this kind of IEP description of frequency is that it is flexible, as opposed to rigid. This kind of flexible description is sometimes used for services that are not necessarily needed every day or every other day, such as counseling. The IEP may say the student will receive 8 counseling sessions for 20 minutes each month, with most of those sessions occurring when the student is showing signs of frustration. If a student is having a good week, there may

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be no session that week. The next week there may be 5 sessions. That kind of flexibility can be very useful in meeting unique kinds of needs. This kind of description of frequency and duration was approved by the Office of Special Education Programs in Letter to Matthews, 55 IDELR 142 (OSEP 2010), where OSEP approved this IEP statement: "The student will receive 600 minutes per semester of counseling in 16 weekly sessions. Session times may vary per session according to the Student’s responsiveness, session activity, and individual needs.” OSEP said this is a specific amount of time and provides all parties with an understanding of the general commitment of resources by the school in terms of the number of minutes to be provided over the course of a 16-week semester. Previously, in the Federal Register, Appendix A, Q. 35, March 12, 1999, p. 12479, OSEP stated that the amount of time to be committed to each of the various services must be stated in the IEP in a manner that is clear to all who are involved in both the development and implementation of the IEP. That amount of time may be stated in a manner that provides the flexibility approved in Letter to Matthews. So, the important thing is that the IEP has specified the frequency and duration of the service in a manner that is clear to all who are involved. What you are proposing for speech services appears to do that. For MIS reporting there are a couple of options for reporting these services. Below are simple examples. The same calculation can be used for longer date ranges.

1. Using total days: Listing the service date range (October 1 to October 31) 20 minutes of service in the “G” setting for 8 total days

2. Using frequency: Listing the service date range (October 1 to October 31) 20 minutes of service in the “G” setting 2 days a week, every week (equals 8 days a month)

Q18. As an Interlocal, our low-incidence program is located in one of our 5 districts. All our students needing this type of service are transported to the one district that houses the program. A student from a stand-alone district with this type of programming has moved into one of our districts, not the one housing the program. Their IEP has this programming in the IEP, but no transportation to and from due to it being in the same district. We'll need transportation put into the IEP to get the student to the district that houses the program. Do we have to wait to get transportation added in paperwork and signed off on (PWN) before we start sending this student to the program? Or if this is where we can offer the "closest" matching services in the IEP, can we go ahead and get them to our program immediately? Student is foster child and we are trying to track down educational advocate. A18. Typically, transportation cannot be added to the IEP until the district gets consent because that is a material change in service. However, the existing IEP must be implemented. That includes providing the placement specified in the IEP. In the situation you describe, the placement requires transportation because the program in the IEP must be provided at no cost to the parents. That is part of the Free Appropriate Public Education (FAPE) mandate. The district cannot require the parents to absorb that cost. So, it becomes a FAPE responsibility of the district to provide the program described in the IEP at no cost to the parents.

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Consistent with this interpretation, if these same facts exist, and if consent cannot be obtained to add transportation, including if an education advocate is appointed or a parent is found, and that education advocate or parent refuses to consent to an IEP team’s proposal to add transportation to the IEP as a related service, transportation still must be provided because it is a necessary part of the placement that is described in the IEP. FAPE (implementation of the IEP) is a substantive requirement of the federal law, and a state law with a procedural requirement to obtain consent to make a material change in services (that is not required by federal law) cannot prevent a district from meeting the substantive requirements of federal law.

There is a federal regulation that applies to this situation. It is 34 C.F.R. 300.300(D)(2). That regulation says:

“(2) In addition to the parental consent requirements described in paragraph (a) of this section, a State may require parental consent for other services and activities under this part if it ensures that each public agency in the State establishes and implements effective procedures to ensure that a parent’s refusal to consent does not result in a failure to provide the child with FAPE (emphasis added).”

This regulation applies to your situation because Kansas has the additional requirement, that is not in the federal regulations, to obtain consent to make a material change in services. When, as in the situation you describe, there is no way to get consent for something that is needed to provide FAPE [by implementing an existing IEP], or where a parent refuses to give consent to add transportation to a day school placement already specified in an existing IEP, and, as a result, the student cannot get to the placement specified in the IEP, both the state and district must ensure that the failure to obtain the needed additional consent does not result in a failure to provide FAPE.

With regard to placement, OSEP has said If a child's IEP requires services that are not available at the school closest to the child's home, the child may be placed in another school that can offer the services that are included in the IEP and necessary for the child to receive a free appropriate public education. If the child is placed in a school that is not the school closest to the child's home, transportation, if needed for the child to benefit from special education, must be provided as a related service at no cost to the parent, to the location where the IEP services will be provided. Letter to Trigg, 50 IDELR 48 (OSEP 2017). This kind of "clustering" services in particular buildings within a district or cooperative has been approved by the Tenth Circuit: See, Murray v. Montrose County Sch. Dist., 51 F.3d 921, 22 IDELR 558 (10th Cir. 1995).

In short, when you have a placement in an existing IEP that inherently requires transportation, as in the situation you describe, the transportation must be provided as part of FAPE because the primary responsibility of the LEA is to implement the IEP.

There remains the procedural state requirement to request consent, of course. So, when an education advocate or parent is found, the district must request consent for the

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transportation. But, providing a FAPE is the most substantive obligation of both the state and federal law. Our additional state consent requirements cannot be used in a manner that results in a failure to implement an existing IEP. This issue is really the clearest in these "move in" situations, with an existing IEP. It gets less clear when there is an administrative move to another building, because that is not an IEP team decision. It probably still applies if the district believes the move is necessary to provide the services in the IEP, where, for example, the district has moved the service to another building or has reached capacity in a building and must move some students to another building. Parents who disagree have a right to request a due process hearing over these matters.

Q19. Are there any legal implications on placing undocumented alien students in special education services?

A19. A guidance letter from the Office for Civil Rights and the United States Department of Justice (Dear Colleague Letter, 111 LRP 32300 (USDJ/USDE 2011) explains a decision of the U.S. Supreme Court in Plyler v. Doe, 457 U.S. 202 ((1982), in which the Supreme Court said all children residing within a state are entitled to a public education regardless of citizenship. The letter clarifies that the Supreme Court decision makes it clear that “the undocumented or non-citizen status of a student (or his or her parent or guardian) is irrelevant to that student's entitlement to an elementary and secondary public education.”

With that in mind, the Individuals with Disabilities Education Act (IDEA) requires all states to identify and provide a free appropriate public education (FAPE) to all children who live within the state. To do this, most states, including Kansas, have adopted statutes and regulations that require local school districts to make sure all children with disabilities residing within the district’s boundaries, are identified and provided with a FAPE. The FAPE requirement attaches to all children who reside in the district. So, residency is the basis, not national origin or citizenship status.

In short, for students who are undocumented non-citizens, and/or who are receiving ELL services, and who are determined to be a child with a disability residing within the district, the law not only does not prohibit special education, it requires it.

Q20. What is a school's obligation to follow the 10-day rule regarding suspension of a special education student AFTER a parent has signed the revocation of all services paperwork?

A20. When a parent revokes consent for all special education services, their child has no special education protections, including protections in the 10-day rule. However, Section 504 will still apply because the student is still a person with a disability. Although not specifically stated in the 504 regulations, the Office for Civil Rights (OCR) has interpreted Section 504 to operate similarly to the IDEA. In an OCR complaint, titled Murray County (GA), 55 IDELR 233 (OCR 2010), OCR provided a succinct explanation of its policy regarding suspensions and expulsions of students covered only by Section 504.

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In that explanation, OCR said:

OCR's policy states that when the exclusion of a child with a disability is permanent (expulsion), or for an indefinite period, or for more than ten consecutive school days, the expulsion constitutes a "significant change in placement". In addition, a series of suspensions of less than ten days, if they are numerous or lengthy, may create a pattern of exclusions that constitutes a significant change in placement. Prior to such a change, the District must determine, through the evaluation process, whether the student's behavior was a result of his or her disability. The manifestation determination must be made by a group of persons knowledgeable about the child and the meaning of the evaluation data, and may be made by the same group of people who makes placement decisions conforming to the process required by the Section 504 regulation. If it is determined that the behavior is a manifestation of the student's disability, the group must continue the evaluation, to determine whether the student's current educational placement is appropriate. The group must have available to it information that competent professionals would require, such as psychological evaluation data related to behavior, and the relevant information must be recent enough to afford an understanding of the child's current behavior.

As you can see, the disciplinary removal process under Section 504 is very similar to IDEA processes. One big difference is that for children protected only by Section 504, educational services are not required during removals subsequent to the 11th day of removal. If you have any further questions regarding the suspension of children covered only under Section 504, you may want to contact the Office for Civil Rights.

Q21. Our district has created an event for students of our district due to concerns with our student population regarding student suicide. It is to take place next week. We now have parents sign their students with severe disabilities up for the event. This event has minimal staffing. Are we required to provide interpreters, nursing staff, and paras for our special education students to access this opportunity? If so, what happens if we are unable to convince our special education service providers to work on their break?

A21. This “opportunity” must also be available to children with disabilities, including children with severe disabilities. Federal special education regulations, at 34 C.F.R. 300.107, say that schools must provide necessary aids and supports to children with disabilities to enable those children to have an equal opportunity to participate in nonacademic activities. And, of course, there is Section 504, which says a recipient of federal funds may not discriminate by limiting a person with a disability in the “enjoyment of any right, privilege, advantage, or opportunity enjoyed by others [emphasis added].” To comply with this requirement, under Section 504, recipients of federal funds must provide reasonable accommodations to enable persons with

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disabilities to have an opportunity to participate in these activities in a manner that is equal to people who do not have a disability.

Typically, a child’s IEP team or 504 team would determine what supports are going to be necessary to enable that child to have an equal opportunity to successfully participate in particular activity. When it is something coming up as quickly as this one, however, it may be more economical to look at what nonacademic IEP supports are provided throughout the school day and make those supports available to the child during this opportunity.

Q22. I have a question regarding this regulation: 34 C.F.R. 300.535. Referral to and action by law enforcement and judicial authorities. (b)Transmittal of records. (1) An agency reporting a crime committed by a child with a disability shall ensure that copies of the special education and disciplinary records of the child are transmitted for consideration by the appropriate authorities to whom it reports the crime. (2) An agency reporting a crime under this section may transmit copies of the child's special education and disciplinary records only to the extent that the transmission is permitted by the Family Educational Rights and Privacy Act. In this type of situation what is allowed to share with law enforcement without creating a FERPA violation?

A22. There is no FERPA exception that would permit a school to provide information from education records to law enforcement. So, this regulation is saying this needs to be done only if the parents give consent to transmit student records, or if there is an exception which applies, which could include a situation in which there is a health and safety emergency. For example, a child could be taken into custody and a particular kind of medication must be administered daily in order to maintain physical or mental stability. Under the Health and Safety Emergency exception, the school could provide that kind of information to law enforcement without first obtaining parent consent. Or, of course, if there is a court order to provide information to law enforcement, that would be another recognized exception to FERPA that would permit the disclosure. In general, a school is not required to transmit this kind of information to Law Enforcement unless requested to do so by a parent who has given written consent for the disclosure.

Q23. When a child is identified as having a developmental delay reaches his/her tenth birthday, and a reevaluation shows the child is not eligible under any other category, but the parent refuses to give consent to ending services, do services need to continue?

A23. The pertinent Kansas regulation is K.A.R. 91-40-27. The school does not need parent consent to end services to a student with Developmental Delay (DD) upon reaching the age of 10 years. That regulation is pasted directly below, and parts are emphasized with bold print:

91-40-27. Parental consent. (a) Except as otherwise provided in this regulation, each agency shall obtain written parental consent before taking any of the following actions: (1) Conducting an initial evaluation or any reevaluation of an exceptional child;

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(2) initially providing special education and related services to an exceptional child; or (3) making a material change in services to, or a substantial change in the placement of, an exceptional child, unless the change is made under the provisions of K.A.R. 91-40-33 through 91-40-38 or is based upon the child’s graduation from high school or exceeding the age of eligibility for special education services.

Because eligibility for DD ends on the 10th birthday [See K.A.R. 91-40-1(k)(2)], Children who have been identified as having a DD exceed the age of eligibility for special education services on their 10th birthday, unless identified under another IDEA category of disability. Accordingly, parent consent is not required to end services for children who have been identified as having only DD on their 10th birthday and a re-evaluation indicates the child is not eligible under any other category. In that instance, all that is required is a Prior Written Notice notifying the parents that the child will exceed the age of eligibility on the 10th birthday and that all special education services will end on that date.

Q24. My question is regarding the required members for an IEP meeting involving middle and high school students who have multiple general education teachers. If at least one general education teacher of the student is present for the entire meeting, does this meet the requirement? For example, if when the first teacher leaves the meeting another general education teacher of the student takes his/her place, would that be compliant?

A24. Some people refer to that as the “Tag Team Approach.” OSEP has not directly addressed this question, but there are some ancillary commentaries by OSEP that are relevant.

The pertinent regulation [300.321] says the IEP team must include not less than one regular education teacher of the child. As long as that requirement is met, the LEA appears to be in compliance.

As for the OSEP comments, there are several in the Comments portion of the federal regulations, in the Federal Register, Aug. 14, 2006, on p. 46674 and 46675. There, OSEP says “The public agency determines the specific personnel to fill the roles for the public agency’s required participants at the IEP Team meetings.” And, on p. 46675, OSEP adds “If the child has more than one regular education teacher responsible for carrying out a portion of the IEP, the LEA may designate which teacher or teachers will serve as the IEP team member(s), taking into account the best interest of the child.” This same comment then goes on to say: “An LEA could also agree that each teacher attend only the part of the meeting that involves modification to, or discussion of, the teacher’s area of the curriculum.” That statement is the closest OSEP comes to directly addressing your question, and it appears OSEP is saying the LEA could structure the meeting to always include a regular education teacher, by designating more than one regular education teacher to attend the meeting and having each of them attend only the part of the meeting that involves them. That is not exactly a simple tag team approach, but it is close. Aside from all this, the regulations set no prohibition on using a tag team approach. Accordingly, it appears that the LEA has broad discretion with regard to who will fill the required roles, and there are no restrictions on how it does that. As long as the meeting

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has "not less than one" of the required members, the IEP team member requirements are being met and the excusal process is not required.

Q25. We would have liked to file an appeal of a formal complaint decision, but the ten-day timeline, from the date of the report, in which to file an appeal is too short. We received the decision five days after the date of the report, and did not have time to assemble the IEP team to determine whether it wished to file an appeal. Can that timeline be extended?

A25. Special Education and Title Services (SETS) is aware that the 10-day timeline from the date of the report is a short time in which to submit an appeal. However, that short timeline was intentionally placed in the regulations by the State Board of Education [See K.A.R. 91-40-51(f)] in order to allow for an appeal process. The Kansas State Department of Education (KSDE) has no authority to make any exception to this timeline.

The federal complaint regulations provide individual states a 60-day timeline in which to complete a complaint investigation. The federal regulations provide for no appeal. The Kansas State Board of Education provided an appeal process on its own. In doing so, it had to limit Kansas complaint investigators to only 30 days in which to complete the investigation, and then permitted an additional 10 days for the parties to submit an appeal. That leaves KSDE only 20 days to complete the appeal review and comply with the federal time requirement. In that remaining 20 days, KSDE must receive the appeal, notify the other party and give that party an approximately ten-day opportunity to respond to the appeal, consider all of the arguments of both parties, make a final decision, and issue a final written report reflecting that decision.

These timelines are all short and all stressful for all of those who are subject to them, including KSDE. They were put in place to provide parents and districts an opportunity to appeal the decisions of complaint investigators, an opportunity not available under the federal regulations or under the regulations of most states. Accordingly, in order to make this appeal process available to Kansas complainants and Kansas school districts, Kansas found it necessary to limit the time in which to exercise that right in order to comply with federal requirements. The state board regulation does not authorize any extension of this timeline for appeal.

You indicate you received the complaint report on Monday, October 29, but need more time in order to make a decision with the whole team present. The appeal process was designed to be a process district administration could use without involvement of an IEP team. As you have indicated, the tight timeline of the appeal process will likely not give the district time to convene a team to consider an appeal, and it was not designed to do so.

The report to which you refer is dated October 24. Ten days from that date is Saturday, November 3. As indicated previously, KSDE cannot make an exception to this State Board of Education Regulation. However, in enforcing this regulation, when an appeal is due on a non-business day, as this one is, KSDE has developed a practice of accepting an appeal on the next business day. That would mean any appeal you wish to submit regarding this complaint report

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must be delivered to KSDE by the end of the business day, today, November 5, 2018. If you wish, you may deliver that to SETS by e-mail, no later than today at 5 p.m.

Q26. On the IEP for a student, we have a quiet setting for tests and having the student read aloud to herself (she comprehends better when she hears herself read.) The student is given these options every time on tests. However, she sometimes refuses them, and does not want to leave the classroom. The parent is upset with us, because we should be requiring her to use them. This is a high school student with anxiety. She does not have a reading disability nor a reading goal. I want to make sure I respond to the parent appropriately and correctly. How can we force an accommodation upon a child if they are refusing it and telling us they don't want the quiet setting, etc.?

A26. This kind of situation is not unusual. It is not easy for a teenager to have to leave her peers to take tests or to read by herself. That might be especially true when the reading assignment or test is a short one. But, it is important that the IEP be implemented as written. And, it appears this girl’s parents also believe it is important to implement the IEP.

You might want to consider having an IEP meeting, with the student present, to discuss this issue, to see if there is another way the accommodation could be described that would give the student a little more ability to opt out of the accommodation when she wants to. Of course, the team cannot end the accommodation as written without parent consent. If the parent does not consent to ending this accommodation, the team could still change it, without consent, if the change did not change the frequency or duration by 25% or more.

So, a statement like “The student will go to a quiet setting for all tests and for all reading assignments” could be changed to: “The student will go to a quiet setting for all tests or for all reading assignments, except that the student may opt out of going to the quiet setting for up to 24% of the time she would otherwise be required to go to the quiet setting by requesting that she be allowed to remain in the classroom.”

With this kind of statement in the IEP, the student would still be required to go to the quiet setting, but, she would also have considerably more control over when she will go to the quiet setting. Someone would have to keep track of the amount of time she declines to go to the quiet setting so that the school can verify that the IEP is being properly implemented. That tracking should be in writing so the school can verify that the IEP Is being implemented (which is doubly important when a parent is objecting to this kind of change). Perhaps a form could be developed that would enable the student, herself, to track the times at which she is going to the quiet setting and the times she is opting out.

It is important that the student attend the IEP meeting so she can give her input and so that she will understand that this is something her parents think is important for her and want for her. It is not something the school is doing to her. The discussion could also include that school personnel must follow the IEP, by law, and have no flexibility to do otherwise.

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The important thing here is that: (1) the IEP must be implemented; and (2) the parents are not totally in charge, even though this is an existing accommodation in the IEP. The IEP team still has authority to make minor changes of the kind described in this response.

Q27. What is Kansas's interpretation of "educational performance?" Does it include both nonacademic and academic areas or just academic areas? I have a student that we are trying to determine if he still qualifies for OHI (has an ADHD combined diagnosis). While his grades and academic performance are great, his impulsivity greatly impacts his ability to build relationships and he is constantly in trouble for his behaviors, however, it does not impact his learning. It does impact his relationships with peers and teachers.

A27. Kansas does not have an interpretation of the term "educational performance." The term “educational performance” is used in the federal regulations as part of the definition of almost all of the categories of disability (excepting only deaf-blindness and multiple disabilities), but it is nowhere defined in those regulations. So, this question has been presented to courts for many years, and the courts have not answered consistently. Some Circuits hold that educational performance refers almost entirely to academic performance. Other Circuits (most of them) hold that educational performance is broader than just academic performance. Those Circuits hold that educational performance refers to performance in the classroom, and can include functional and developmental performance, and performance related to communication and social understanding. The 4th Circuit put it this way: “Where basic self-help and social skills such as toilet training, dressing, feeding, and communication are lacking, formal education begins at that point.” See, Shaw v. Weast and Montgomery Cnty. Bd. Of Ed., 53 IDELR 313 (4th Cir. 2010).

The vast majority of the Circuits that have ruled on this have taken a broad approach to the term “educational performance.” Kansas is in the 10th Circuit, but the 10th Circuit has not ruled on this question. So, we do not have an authoritative answer here in Kansas.

We do have some guidance from the Office of Special Education Programs (OSEP). OSEP is the office in the United Stated Department of Education that writes the federal regulations for special education, so its guidance is given deference by courts. OSEP has adopted the broad understanding of the term “educational performance” to include more than just academic performance. OSEP says the term also includes functional and developmental performance. [See, Letter to Clarke, 107 LRP 13115 (OSEP 2007)]

Using the broad interpretation of “educational performance” widens the scope of children who could be eligible, but there is still the second prong of the analysis, which requires that as a result of the disability, the child must need specially designed instruction (special education). So, the broad interpretation probably does not open the eligibility door unnecessarily wide. SETS recommends using the term “educational performance” in the manner described by OSEP.

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Q28. Can a student, who is functional in nature and performing at an elementary level, receive a high school diploma, simply because they earn a credit for their special education courses?

A 28. A regular education diploma may be awarded to any student who has met the requirements in Kansas Administration Regulation 91-31-32, unless the local school board has adopted additional requirements for graduation. If a local board sets additional requirements for graduation, a student in that district would need to also complete those additional requirements.

Some students in special education may receive a modified curriculum. Under that circumstance, whether the district awards credits for the modified curriculum would be an administrative decision of the school district. Accordingly, a high school student functioning at an elementary level could receive a regular education diploma if the district awards credit in all graduation required coursework, including courses applying a modified curriculum.

If credits are awarded for coursework required for graduation, even though a modified curriculum was used, that would enable the student to graduate with a general education diploma. However, that should not interfere with that student’s right to continue with special education services through the year in which the child turns age 21. Although such credits would enable the student to graduate with a general education diploma, if the student, or student’s parents, oppose the delivery of a regular education diploma (gained through the award of credit for heavily modified coursework), the diploma should be withheld until the student requests that it be delivered or until the student ages out of eligibility, whichever occurs first. Parents (or an adult student) may always challenge the sufficiency of a regular education diploma in a special education due process hearing because the awarding of a regular education diploma will result in a change in placement and a change in services.

Q29. When someone is representing the parent's interests at IEP meeting as a friend or advocate do they need to run their concerns through the parent instead of just voicing them themselves constantly?

A29. Federal regulations, at 34 C.F.R. 300.321, state that the IEP team includes “other individuals who have knowledge or special expertise regarding the child…” That means these other individuals may be invited to be part of the IEP team. When that happens, they may participate just as any other member of the team, and do not have to run their concerns through the parent, just as individuals invited by the district may openly participate in the meeting and are not required to run their concerns through the LEA representative.

Q30 Our principals/superintendents got into a debate today about whether IEP accommodations need to be provided at our after school tutoring programs (these are district programs, and not something that is run by an outside entity).

A30. Federal regulation 34 C.F.R. 300.107 is pasted below. This regulation states that if a school district has nonacademic services or activities, they must be equally available to children

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with disabilities, including, if needed, the provision of supplementary aids and services deemed necessary by the IEP team.

Sec. 300.107 Nonacademic services.

The State must ensure the following: (a) Each public agency must take steps, including the provision of supplementary aids and services determined appropriate and necessary by the child's IEP Team, to provide nonacademic and extracurricular services and activities in the manner necessary to afford children with disabilities an equal opportunity for participation in those services and activities. (b) Nonacademic and extracurricular services and activities may include counseling services, athletics, transportation, health services, recreational activities, special interest groups or clubs sponsored by the public agency, referrals to agencies that provide assistance to individuals with disabilities, and employment of students, including both employment by the public agency and assistance in making outside employment available.

Although this regulation probably does not apply to an after school tutoring program, there is a similar federal regulation, at 34 C.F.R. 300.110, which has a similar provision regarding educational programs. That regulation is pasted below:

Sec. 300.110 Program options.

The State must ensure that each public agency takes steps to ensure that its children with disabilities have available to them the variety of educational programs and services available to nondisabled children in the area served by the agency, including art, music, industrial arts, consumer and homemaking education, and vocational education.

These regulations are really Section 504 requirements that were added to the special education regulations. The short answer to your inquiry is that under these special education regulations, and under Section 504, if a school district creates an academic program or a non-academic program, it must make those programs equally available to children with disabilities, which may mean they will need to provide supplementary aids and services (under the IDEA) or accommodations (under Section 504) that are needed for those children. That would almost certainly include an after school tutoring program.

Q31. I looked through the process handbook but was not able to verify this one way or the other. It looks like the 60-day timeline to complete an initial evaluation does not apply to reevaluations. Is there a mandated timeline for a reevaluation to be complete after consent for a reevaluation has been received?

A31. That is correct, the 60 school-day timeline applies only to the initial evaluation. Neither statute nor regulation addresses a timeline for re-evaluations. When the law requires that something be done but does not specify a time in which to do it, the required action must be

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done within a reasonable time. The Kansas State Department of Education (KSDE) has historically applied the 60 school day timeline to reevaluations because the processes are so similar. If anything, a re-evaluation should usually take less time than an initial evaluation because much is already known about the student in a re-evaluation. If a complaint were to be filed with the KSDE alleging that a re-evaluation was not done in a timely manner, the KSDE would apply the 60 school-day timeline, unless there were unusual circumstances (consideration of unusual circumstances is part of applying the “reasonable time” standard).

Q32. We are holding an IEP meeting on Sept. 11th, the IEP is due by the 12th. More than a 10-day notice of the meeting has been given to the parents. The IEP, the team is not proposing any significant changes that would require parent consent. IF parents become upset in the meeting AND LEAVE can the rest of the team continue the IEP meeting to review the new IEP? If parents refuse to sign the IEP or the prior written notice, should we still implement the IEP, since there are no changes that would require consent?

A32. Yes and Yes. In In Pangerl v. Peoria USD, 69 IDELR 133 (D.C. Ariz. 2017) the team continued an IEP meeting after the parents walked out. The court said the parents made a choice to leave the meeting early and cannot now complain that the rest of the team finished its work. The court held that there was no error in continuing the meeting under this circumstance. Parents do not have a right to attend an IEP meeting. The federal regulations state that they have a right to have an opportunity to attend IEP meetings. That is why districts must give them notice of meetings. But, IEP teams can meet without parents when the school cannot convince the parents to attend. In Kansas, for such a meeting to begin without a parent, the school must give the parents two notices of the meeting in two different ways (at least ten days in advance of the meeting). When a parent is in attendance at a meeting and cannot be convinced to stay, the notice requirements have been met because the parents previously received the usual written notice, and had a second notice, actual notice through attendance at the meeting. Accordingly, if parents are in attendance at a meeting and walk out of the meeting, the meeting may continue. When this happens, the team may complete its review of the IEP, and if consent is not needed for any of the changes to the IEP, a PWN needs to be developed, specifying the changes being made to the IEP and the date those changes will take effect. That PWN should then be delivered to the parent a reasonable time before the changes are to take effect. On the date the changes take effect, the student has a new IEP.

Of particular importance, remember that the PWN is a “prior” written notice. That means it must be delivered a reasonable time prior to the initiation of any changes made. So, if you have the circumstances you describe, and the team continues with the meeting and develops a final IEP, the PWN should indicate a date in the future on which the changes will take place. That prior notice needs to give the parents a reasonable time in which to make any decisions they want to make, such as whether to request a due process hearing to challenge the final IEP. Accordingly, in this kind of situation, the team should indicate that the changes in the PWN will take place on a certain date, that is at least 15 school-days after the PWN is delivered.

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If this situation occurs, where a parent walks out of a meeting and the team continues with the meeting, and the team proposes changes to the IEP that do require consent, the PWN should indicate that consent is being requested. If the parents do not respond to the request for consent within 15 school days of receipt of the PWN and request for consent, the school may implement the proposed changes without consent. If the parents respond by stating that they refuse to consent, the school should send the parents another PWN stating that all of the changes proposed in the previous PWN will be made on the date indicated on that notice except for the changes that required consent. Those changes that required consent will not be made. On the portion of this PWN where it requires an explanation of why those changes will not be made, a statement should be inserted stating that those changes will not be made because the parents refused to consent to them. At this point the student will have a new IEP.

Q33. We have a 5 year-old student who is in foster care that enrolled in kindergarten in the public school. At enrollment, it was evident that this child has a disability. Upon further investigation, we’ve been able to determine that the child had Part C services but was never evaluated for Part B at age 3. The foster parent has been taking him for private therapy services at Heartspring on an out-patient basis and Saint Francis social workers never pursued an IEP or special education evaluation for him since he’s been in the custody of DCF. We were able to get an education advocate appointed last week and have started an evaluation. The team and education advocate believe that the appropriate placement is going to be our low incidence program at an elementary school in a different district. Can the student start attending the program without the IEP in place? We’re trying to write an interim IEP but today was the first day our staff were able to meet the student due to his recovery from a heart surgery. We want to get him started in school as soon as possible.

A33. It is permissible to put this student In a special program as part of the initial evaluation if the eligibility team and the education decision maker for the child agree that the special program is needed to obtain the necessary data for developing an appropriate IEP (See Federal Register, March 12, 1999, Appendix A, Question 14, where OSEP says the regulation requiring an IEP to be in effect before special education and related services are provided does not preclude temporarily placing a child in a program as part of the evaluation process to assist in determining an appropriate placement). OSEP referred to this process as an "interim IEP." However, OSEP adds that this process should only be used when it is apparent that a child will meet eligibility requirements, the parents agree to the interim placement, and that a specific time limit for the interim placement is in place.

There is no need to place a student in a general education setting and watch the student fail, particularly when another setting is going to provide more information regarding what supports are going to be needed and appropriate. In this situation, the PWN and request for consent to evaluate should specify that the child will be evaluated in the special program. If you get the necessary consent to include this special program as part of the initial evaluation, you have all you need to proceed. If you have already received consent for the initial evaluation, you

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could provide the education advocate with another PWN proposing to use this setting as the evaluation setting and request consent for that part of the evaluation.

Q34. Can a general education student be placed in a special education classroom with no other general education peers…only special education for a study skills class?

A34. It would be a very poor practice, especially if a special education teacher is providing the “study skills” instruction.

First, if a special education teacher is providing direct instruction, are the special education students in that room getting the services specified in their IEPs? If not, there are FAPE issues.

Second, what happens when that general education student goes home and tells his/her parents that the school put him/her in special education? You could have a parent filing a complaint alleging that the student was “effectively” put in special education without an evaluation, without an eligibility determination, and without notice or consent.

Third, the IEP students in the special education room have an IEP that specifies the extent to which those students are not with general education students. Presumably that is when they are in the special education room. How is this practice consistent with this part of the IEPs of these students?

These are just some of the problems with this kind of practice. In a different situation, we received a formal complaint this year that involved a special education student whose IEP said he would be in a special education room for two hours a day and in general education the rest of the day. During the time he was in a general education setting, the student was provided Tier 3 MTSS services in a special education room. The parents filed a complaint saying the additional time in a special education room was a violation of the terms of his IEP (which limited his time in a special education setting to two hours per day). The investigator did not substantiate a violation in that case because of some pretty unique circumstances, but did say in the complaint report that it was a close call and could have gone the other way if the unique circumstances had not existed.

Q35. We have a social worker, guardian ad litem, and foster parents all involved with a student. Parents still have rights and are available. Do we need an Release of Information (ROI) for all of them to be involved in the IEP meeting?

The guardian ad litem is authorized to have records, correct?

We've always invited case workers and foster parents. We just have not allowed them a copy of the IEP without a ROI signed by parents.

A35. The general requirement is that information in education records may not be disclosed to anyone unless a parent consents to the disclosure. There are exceptions in both FERPA and the

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special education regulations. However, there is no exception for a guardian ad litem or a foster parent. To provide these people with a copy of the IEP would require either a release of information signed by the parent, or an order of the court specifying that the individual is to be given a copy of the IEP.

However, the district has the option of inviting these people to an IEP meeting as members of the team, without the need for a signed release of information. In Letter to Bieker, 102 LRP 9204 (OSEP 2000), OSEP said that a school may invite someone with knowledge or special expertise to be a member of the IEP team, even if it would not be permitted to disclose student information to that person under a FERPA exception. A parent cannot veto this authority on the basis of confidentiality of student records. This letter from OSEP, incidentally, was in response to the then General Counsel of KSDE, Rod Bieker.

Q36. Concerning test protocols, must practitioners always retain, not just the page(s) with the scores on them, but the entire protocol (vs shredding them) in case parents want to obtain copies of them at a later date?

A36. There is nothing in FERPA, or in special education regulations, that would prohibit destruction of any document. The only exception to that statement is that documents (or information in another form) may not be destroyed when there is an existing request from a parent for access to the document or information in another form.

FERPA and special education regulations provide parents with a right to “inspect and review” the education records of their child. This is generally referred to as the parent’s right to access education records. However, the term “education record” is defined as those records that are directly related to a student (through personally identifiable information) and which are maintained by a school district. If a district does not maintain a record, it is not an education record and FERPA has no application. If a district does maintain a record and later destroys it, that record loses its status as an education record and parents no longer have a right to access that record under either FERPA or special education regulations.

There is an interesting provision in the special education regulations, at 34 C.F.R. 300.624, which appears to say that if a school district is going to destroy existing education records, it must first notify the parent of the intent to destroy. That is a misreading of that regulation. 34 C.F.R. 300.624 applies only to information that a district is keeping after it is no longer needed for educational purposes. For example, a school may decide to keep IEPs for 5 years after a child leaves the school, for audit purposes. Arguably, that five years would be after the information is no longer needed for educational purposes. That is the situation addressed by 34 C.F.R. 300.624.

In short, there is no requirement to retain test protocols, or any other education record. And, your understanding is correct, copies are generally not required. The parent has a right only to have access to education records, that is, to inspect and review the education records of their

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child. There is an exception in FERPA that would require a district to provide copies of education records if, without providing copies, a parent would effectively be denied access. That might occur, for example, if a parent lived in New York and could not reasonably come in to inspect and review the records.

In Letter re: Keystone Central. Sch. Dist., 9 FAB 14 (FPCO 2005), the parents complained that the school district had interfered with their right to review and inspect their child's disciplinary records because the school had shredded those documents without notice. The FPCO said: "A school is not required by FERPA to create or maintain particular education records, or to recreate lost or destroyed education records. Also, a school may destroy education records without notice to the parent unless there is an outstanding request from the parent to inspect and review such records.

Q37. Last year our Audiologist and HI teacher passed away toward the end of the year. We wrote letters offering compensatory services once new staff was hired (believe copy was sent to KSDE). Now that we are back to being fully staffed with audiologist and HI teacher how should we offer the services?

Do the services missed need to be put on a PWN and have parents decline or accept? Or is a documented phone call or another letter more appropriate?

A37. SETS suggests a letter be sent to each of these parents advising that new staff are on board and you are following up on your commitment to these students to make sure they have an opportunity to make up for any lost progress. The letter should inform parents that if they believe their child needs any compensatory services in order to meet current IEP goals, to inform you of that so you can arrange for the student’s IEP team to meet to discuss what compensatory services would be appropriate and needed to get them back on track to achieving those goals. This letter should give the parents a reasonable time frame in which to respond so that it is not just hanging out there forever.

Then, for those who elect to have a meeting, and the team determines what compensatory services are needed, yes, a prior written notice should be provided to the parents with a statement of the amount of compensatory services the team agreed to provide.

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