Procedural Safeguards under IDEA 2004

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• Procedural Safeguards under IDEA 2004 IDEA
  RegulationsSeptember 2006Oregon Department of
  Education

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IDEA 2004 made changes to

• Parents and surrogate parents
• Ward of the state
• Consent refusal

• Evaluation Reevaluation
• Notice of Procedural Safeguards

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Expanded Definition of Parent34 CFR 300.30

• A biological or adoptive parent of a child
• Foster parent Oregon law does not prohibit
  foster parent from serving as a parent
• Guardian (but not the state - DHS or other state
  agency if child is a ward of the state) or
  other individual legally responsible for the
  childs welfare
• Individual acting in the place of a biological or
  adoptive parent (e.g. grandparent, stepparent or
  other relative) with whom the child lives
• Surrogate parent

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If more than one parent 34 CFR 300.30(b)

• And biological or adoptive parent is attempting
  to act as the parent, must be presumed to be the
  parent for IDEA purposes
• UNLESS
• Biological or adoptive parent does not have
  legal authority to make educational decisions for
  the child OR
• Judge orders specific person to act as the parent
  or to make educational decisions for child.

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Definition of Ward of the State

• 34 CFR 300.45
• A foster child, but not foster children with
  foster parents who meet the definition of
  parent.
• A child who, as determined by the state where the
  child resides, is a ward of the state.
• A child in the custody of a public child welfare
  agency.

• ORS 343.035(20) (2005)
• . . . a child who is temporarily or permanently
  in the custody of, or committed to, a public or
  private agency through the action of the juvenile
  court. Ward of the state may be further defined
  by rules adopted by the State Board of
  Education.

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Surrogate Parents34 CFR 300.519

• When must a surrogate be appointed?
• No parent can be identified (slide 3) or, after
  reasonable efforts, located
• Child is a ward of the state (slides 5-6)
• Child is an unaccompanied homeless youth (not in
  physical custody of parent or guardian)
• District must have a method for determining
  whether a surrogate is needed and for appointing
  a surrogate

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Surrogate Parents34 CFR 300.519, FR 46566

• The IDEA does not require the automatic
  appointment of a surrogate parent for every child
  with a disability who is a ward of the state.
  States and LEAs must ensure that the rights of
  these children are protected and that a surrogate
  parent is appointed, if necessary. . .
• If a child who is a ward of the state already
  has a person who meets the definition of parent.
  . . and that person is willing and able to assume
  the responsibilities of a parent under the Act, a
  surrogate might not be needed.

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Surrogate Parents34 CFR 300.519

• Requirements for appointment
• Not an employee of ODE, the current school
  district, or any other agency that is involved
  in the education or care of the child
• No personal or professional interest that
  conflicts with the interest of the child
• Has knowledge and skills that ensure adequate
  representation of the child

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Surrogate Parents34 CFR 300.519

• SEA must make reasonable efforts to ensure that
  surrogate parent is assigned within 30 days after
  a public agency determines a need for a surrogate
• Provision for temporary surrogate parents for
  unaccompanied homeless youth may be employees
  of agency (shelter, outreach program) providing
  care or services to the student

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Surrogate Parents34 CFR 300.519,

• Responsibilities
• To represent child in all matters relating to the
  identification, evaluation, educational placement
  and the provision of FAPE to the child

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Surrogate ParentsOAR 581-015-0099

• School district may terminate surrogate if
• Surrogate no longer eligible, available or
  willing to serve
• Rights transfer to student, student graduates,
  student no longer eligible for special education,
  student no longer ward, moves to another district
• Parent, foster parent or guardian (not state)
  identified who can act as parent

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Parent Consent34 CFR 300.300

• All evaluations
• Must give notice and get written parent consent
• Notice must describe any evaluation procedures
  the agency proposes to conduct (300.304(a))
• Must make reasonable efforts to get consent
  document efforts

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Consent not required for34 CFR 300.300

• Reviewing existing data as part of an evaluation
  or reevaluation
• Administering a test or other evaluation that is
  administered to all children (unless consent is
  required for all children)
• Conducting tests, procedures or instruments that
  are identified on the students IEP as a measure
  of progress (OAR 581-015-0042)
• Screening by a teacher or specialist to determine
  appropriate instructional strategies for
  curriculum implementation (34 CFR 300.302)

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Parent Consent34 CFR 300.300

• Exception for Initial Evaluation only If child
  is ward of the state does not reside with a
  parent, parent consent not required if
• After reasonable efforts, district cannot
  discover the whereabouts of a parent OR
• Parent rights have been terminated OR
• Parent rights subrogated judge has appointed
  an individual to represent the child, and that
  individual has given consent for an initial
  evaluation

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Parent Consent 34 CFR 300.300

• Exception for reevaluation only
• Parent consent not required for reevaluation if
  district can demonstrate that it make reasonable
  efforts to obtain consent and parent did not
  respond.
• Under state law, this exception does not apply to
  IQ tests or tests of personality.

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Refusal of Consent I34 CFR 300.300

• If a parent refuses consent for initial
  evaluation or does not respond (after reasonable
  efforts)
• For children enrolled in or seeking to enroll in
  public school
• The district may pursue through mediation and/or
  due process hearing.
• The district is not required to pursue through
  mediation and/or due process hearing.
• For children who are home schooled or placed in
  private school by parent
• District may not pursue through mediation and/or
  due process hearing

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Refusal of Consent II34 CFR 300.300

• If a parent refuses consent for initial provision
  of special education services or does not respond
  (after reasonable efforts)
• The District may NOT pursue consent through
  mediation or due process hearing
• The District is not considered to have failed to
  provide FAPE to the child (and procedural
  safeguards do not apply)
• The District is not required to convene IEP
  meetings about the child

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Refusal of Consent III34 CFR 300.300

• If a parent refuses consent for reevaluation
  (after reasonable efforts)
• For children enrolled in or seeking to enroll in
  public school
• The district may pursue through mediation and/or
  due process hearing.
• The district is not required to pursue through
  mediation and/or due process hearing.
• For children who are home schooled or placed in
  private school by parent
• District may not pursue through mediation and/or
  due process hearing

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Evaluation Timeline34 CFR 300.301(c) OAR
581-015-0072

• IDEA
• Sets default 60-day timeframe for initial
  evaluations (unless the state establishes its own
  timeframe)
• From Written parental consent
• To Completion of initial evaluation

• Oregon
• 60 school day timeline (for all evaluations)
• From Written consent
• To Meeting to determine eligibility or to
  consider results in reviewing childs IEP

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Exceptions to timeline34 CFR 300.301(c)

• The timeframe does not apply if
• The child attends a new school district after
  consent is given but before the evaluation is
  conducted (see Sample Form Parent District
  Agreements) or
• The parent fails to, or repeatedly refuses to,
  produce the child for evaluation.
• Additional exception under OAR 581-015-0074
• For documented circumstances outside the
  districts control (which do not include the lack
  of availability of qualified staff to conduct the
  evaluation).

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And for SLD evaluation34 CFR 300.309(c)

• School district must adhere to 60 school day
  timeline unless extended by mutual written
  agreement of the childs parents and a group of
  qualified professionals

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Reevaluations 34 CFR 300.303

• Reevaluations occur
• Not more frequently than once a year, unless the
  parent and the district agree otherwise.
• At least once every three years, unless the
  parent and district agree a reevaluation is
  unnecessary.

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Procedural Safeguards Notice34 CFR 300.504

• Notice must be given only once a year AND at
• Initial referral
• Parental request for evaluation
• First due process hearing complaint in school
  year
• If disciplinary change in placement
• At the request of the parent.

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Procedural Safeguards Notice34 CFR 300.504

• New content requirements
• Time for filing due process hearing request
  complaint, and differences between the two
  procedures
• Mediation resolution sessions
• Time period for filing a civil action (appeal)
• NEW OSEP sample procedural safeguards notice