KANSAS
SPECIAL EDUCATION
PROCESS
HANDBOOK
Special Education Services
February 2008
This document was developed by the Kansas State Department of Education, Special Education Services, Topeka, Kansas.
The opinions expressed herein do not necessarily reflect the position of the United States Department of Education, and no
endorsement of the United States Department of Education should be inferred.
This document is provided as a guide for the provision of special education and related services. If any portion of this
document conflicts with law or regulation, the law or regulation takes precedence.
Please contact our department if you have questions about information contained within this handbook:
Phone:
800-203-9462, or 785-296-3869
Fax:
785-296-6715
Homepage:
http://www.kansped.org
If additional copies are needed, readers are encouraged to duplicate current copies of the handbook, as there is no copyright
on the information. Or, readers may download the handbook from the web by accessing the homepage listed above. The
format of the handbook may be slightly different on the version that is downloaded.
The (KSDE, or KSSB, or KSSD) does not discriminate on the basis of race, color, national origin, sex,
disability, or age in its programs and activities. The following person has been designated to handle
inquiries regarding the non-discrimination policies:
KSDE General Counsel
120 SE 10th Ave.
Topeka, KS 66612
785-296-3204
Office
785-296-3202
of the Commissioner
785-291-3791 (fax)
120 SE 10th Avenue
Topeka, KS 66612-1182 785-296-6338 (TTY) www.ksde.org
January 2, 2008
Dear Partners in Education:
It has been a little over three decades since the initial federal legislation –P.L. 94-142—
was put in place to ensure that the exceptional educational needs of children and youth
with disabilities are identified and services are provided. In our continuing efforts to
assist you in meeting both federal and state requirements, the Kansas Department of
Education, and specifically the Special Education services team, is please to provide
you with this copy of the Special Education Process Handbook.
Each of you should be congratulated for your commitment and dedication of our
students. By working together, we have ensured the academic and behavioral success
of each and every child. As parents, you can feel confident that your children are being
provided the education they deserve and are entitled to.
Being in the 21
st
century, we will all face challenges as we prepare students for jobs that
may not yet exist and provide instruction in courses that have yet to be determined. I
hope this handbook is useful to you in meeting these challenges, and that it provides a
framework for developing and providing effective services.
Please call upon our staff in Special Education for any assistance you may need or in
answering any questions you may have by calling (785) 291-3097 or (800) 203-9462.
Once again, thank you for your part in making Kansas’ special educational programs a
model for the nation.
Sincerely,
Alexa Posny, Ph.D.
Commissioner of Education
Special
785-291-3097 or 1
Education
-800-203-9462
Services
785-296-6715 (fax)
120 SE 10th Avenue
Topeka, KS 66612-1182 785-296-6338 (TTY) www.ksde.org
February 1, 2008
Dear Colleagues:
It is my pleasure to present to you the Revised Kansas Special Education
Process Handbook based on the components of the 2004 Individuals
with Disabilities Education Improvement Act (IDEA 2004). The
purpose of this handbook is to provide clear, concise guidance in your
work as professional educators in order to ensure students with
exceptionalities receive appropriate special education supports and
services.
In addition to guidance regarding IDEA 2004 and Kansas Regulations,
sample forms and resources are included for your use.
The collaborative effort of those who worked diligently on the revision
of this handbook researching, debating and editing over many months is
greatly appreciated. I am fortunate to have the opportunity to work with
so many dedicated individuals and applaud their efforts to compile such
a thoughtful resource for all of us to use.
Thanks to all of you for what you do to support the education of all
students in Kansas Schools.
Sincerely,
Colleen Riley, Director
INTRODUCTION
“As special education administrators we are responsible for creating a vision that will impact all
students positively and produce excellent outcomes in achievement and behavior.”
Dr. Mary Kealy,
Legislation and Policy Chair, CASE
The reauthorization of the Individuals with Disabilities Education Act of 2004 (IDEA 2004) and the updating of
the Kansas State Regulations in 2008, continues the commitment of the nation to ensure that all students,
including those with disabilities, have access to a free appropriate public education (FAPE), will be included in
the general education curriculum and will demonstrate improved educational outcomes.
The Kansas Special Education for Exceptional Children Act expands federal law and regulations to include
children who are identified as gifted and provides an opportunity for children enrolled in private schools by
their parents to receive FAPE. The Kansas State Department of Education (KSDE) is required to provide
information regarding any rules, regulations and policies not required by IDEA 2004 or Federal Regulations.
The
2008 Kansas Special Education Process Handbook
was developed to provide guidance, resources and
supports necessary for those professionals who work to improve results for exceptional children. The
information provided in the
2008 Kansas Special Education Process Handbook
attempts to clarify and define
legal requirements of the law and regulations. Each chapter includes a brief overview specifying requirements
that are particular to Kansas. In addition, each chapter and the Appendices include valuable resources,
sample forms and references. Users of the
2008 Kansas Special Education Process Handbook
are
encouraged to update any future documents which provide clarification to the law and regulations by KSDE or
the Office of Special Education Programs (OSEP).
Additional information can be found at
idea.ed.gov
and
ksde.org
February 2008
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Kansas Special Education Process Handbook
State Imposed Rules, Regulations, and Policies in Kansas Not Required
By IDEA 2004 or Federal Regulations
9
The categories of exceptionalities include the category of “gifted.” K.S.A. 72-962(g)
9
Exceptional children attending private schools are entitled to a Free Appropriate Public Education
through an IEP, upon request. K.S.A. 72-5393 and K.A.R. 91-40-45(c).
9
A school district must obtain written parental consent before making a change of 25% or more of a
special education service or before making a change to a more restrictive or less restrictive
educational environment for more than 25% of the school day. K.S.A. 72-988(b)(6).
9
Each IEP must include, beginning at age 14, appropriate measurable postsecondary goals and a
statement of the transition services needed to assist the student in reaching the postsecondary goals.
K.S.A. 72-987(c)(8).
9
The state complaint procedures include the right of a parent to appeal the written decision of the state
complaint investigator. K.A.R. 91-40-51(c).
9
A due process hearing officer must be a licensed attorney. K.A.R. 91-40-29(b)(1)(a)
9
General education interventions must be implemented prior to referring a child for a special education
evaluation, unless school personnel can demonstrate such interventions are inadequate to address
the areas of concern for the child or a parent has consented to an evaluation and the school district
agrees that an evaluation is appropriate. K.A.R. 91-40-7(c)(2).
9
A written evaluation report is required after completion of an evaluation with regard to all categories of
exceptionality (not just required for learning disabilities). K.A.R. 91-40-10(a).
9
Facilities for exceptional children must be comparable to facilities for general education children and
such facilities must provide an age appropriate environment for the exceptional children. K.A.R. 91-
40-52(d).
February 2008
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Kansas Special Education Process Handbook
ACKNOWLEDGEMENTS
Special Education Services wishes to thank the KASEA Organization and the Regional Representatives that
participated in the review and revisions of the 2008 Kansas Special Education Process Handbook.
Additionally, representatives from Families Together, Inc., the Kansas Technical Assistance and Resource
System (KSTARS) and KSDE participated in the review and revisions.
Special Education Services is grateful to the following people who spent valuable time reviewing and providing
input into the Special Education Process Handbook:
Lynn Ahrens, Liberal, KASEA Region 7
Evelyn Alden, KSDE, SES
Brenda Asher, Salina, KASEA Region 8
Lori Burnshire, Families Together, Inc.
Kevin Cherveny, KSDE, SES
Crystal Davis, SPOT Grant, KSTARS
Kevin Davis, SPOT Grant, KSTARS
Lesli Girard, Families Together, Inc.
Kyle Goodwin, Shawnee Heights, KASEA Region 2
Misty Goosen, Kansas Inservice Training System, KSTARS
Patty Gray, KSDE, SES
Linda Grote, Hutchinson, KASEA Region 6
Kerry Haag, KSDE, SES
Victoria Hart, KSDE, SES
Mark Hartke, Wichita, KASEA Region 6
Jodi Henderson, Spring Hill, School Psychologist
Pauline Hintz, Paola, KASEA Region 4
Sharon Jeffery, McPherson, KASEA Region 6
Joan Johnson, Shawnee Mission, KASEA Region 1
Ed Koehler, Clay Center, KASEA Region 8
Deb McVey, SPOT Grant, KSTARS
Steve Mead, Pratt, KASEA Region 6
David Myers, Leavenworth, KASEA Region 3
Erica Nance, Goddard, KASEA Region 6
Chelie Nelson, Newton, KASEA Region 6
Donna Patton-Bryant, Lawrence, KASEA Region 1
Pennie Province, Ft. Scott, KASEA Region 5
Colleen Riley, KSDE, SES
Joan Robbins, Spring Hill, KASEA Region 1
Nancy Sapp, Ensign, KASEA Region 7
Sheila Smith, Oskaloosa, KASEA Region 3
Carol Stewart, IDMSS Grant, KSTARS
Mark Ward, KSDE, SES
Robert Wittman, Topeka, KASEA Region 2
February 2008
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Kansas Special Education Process Handbook
2008 SPECIAL EDUCATION PROCESS HANDBOOK
TABLE OF CONTENTS
Letter from the Commissioner............................................................................................................ i
Letter from the Director, Special Education Services........................................................................ ii
Introduction.......................................................................................................................................iii
Table of Contents ............................................................................................................................ vi
Appendices....................................................................................................................................... x
Special Education Process Flow Chart...........................................................................................xiii
CHAPTER 1. PARENT RIGHTS IN SPECIAL EDUCATION (PROCEDURAL SAFEGUARDS)
A. Parent Participation............................................................................................................ 1 - 2
B. Definition of Parent............................................................................................................. 1 - 4
C. Parent Rights in Special Education Notice ......................................................................... 1 - 6
D. Prior Written Notice ............................................................................................................ 1 - 7
E. Parent Consent .................................................................................................................. 1 - 9
F. Parent Consent Requested but Not Provided .................................................................... 1 - 13
G. Notice of IEP Meeting......................................................................................................... 1 - 14
H. Rights for Parents of Gifted Students................................................................................. 1 - 15
I. Education Advocates ......................................................................................................... 1 - 16
J. Student Rights at Age 18 ................................................................................................... 1 - 18
CHAPTER 2
SCREENING AND GENERAL EDUCATION INTERVENTION (CHILD FIND)
A. Public Notice For Child Find................................................................................................2 - 2
B. Screening for Children from Birth to Age 5..........................................................................2 - 2
C. General Education Intervention for Children from Kindergarten through Age 21.................2 - 3
D. Data Collection and Documentation for General Education Intervention.............................2 - 7
E. Referral For Initial Evaluation ..............................................................................................2 - 8
F. Early Intervening Services...................................................................................................2 - 9
CHAPTER 3
INITIAL EVALUATION AND ELIGIBILITY
A. Referral for Initial Evaluation ............................................................................................. 3 - 3
B. Prior Written Notice and Request for Consent .................................................................. 3 - 3
C. The Evaluation Team ......................................................................................................... 3 - 9
D. Timeline for Conducting the Initial Evaluation ................................................................... 3 - 10
E. Conducting the Evaluation ..................................................................................................3 - 12
F. Eligibility Determination and Documentation ...................................................................... 3 - 18
G. Prior Written Notice for Identification.................................................................................. 3 - 23
H. Independent Educational Evaluation.................................................................................. 3 - 23
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Kansas Special Education Process Handbook
CHAPTER 4
THE INDIVIDUALIZED EDUCATION PROGRAM (IEP)
A IEP Team ........................................................................................................................... 4 - 1
B. Notice of IEP Team Meeting .............................................................................................. 4 - 7
C. Using An IEP Instead of An IEP………………………………………………………………… 4 - 9
C. When the IEP/IFSP Must Be in Effect ................................................................................ 4 - 10
D. Development of the IEP ..................................................................................................... 4 - 12
E. Meeting to Review, Revise or Amend the IEP.................................................................... 4 - 29
F. Transfer Within The State or From Out-Of-State................................................................ 4 - 31
G. Implementing the IEP......................................................................................................... 4 - 32
CHAPTER 5
SPECIAL EDUCATION AND RELATED SERVICES
A. Special Education Services................................................................................................ 5 - 1
B. Related Services ................................................................................................................ 5 - 5
C. Supplementary Aids and Services ..................................................................................... 5 - 9
D. Program Modifications and Supports for School Personnel ............................................... 5 - 11
E. Incidental Benefit................................................................................................................ 5 - 12
F. Extended School Year/Day Services.................................................................................. 5 - 12
G. Frequency, Location and Duration of Services................................................................... 5 - 13
H. Home Schooling................................................................................................................. 5 - 14
I.
Services in Local Detention Facilities, Juvenile Justice Authority and Department of
Correction Facilities……………………………………………………………………………… 5 - 15
J. Facilities ............................................................................................................................. 5 - 16
K. Qualified Special Education Personnel .............................................................................. 5 - 16
CHAPTER 6
EDUCATIONAL PLACEMENT AND LEAST RESTRICTIVE ENVIRONMENT
A. Parent Participation............................................................................................................ 6 - 1
B. Determining Educational Placement .................................................................................. 6 - 3
C. Least Restrictive Environment............................................................................................ 6 - 5
D. Early Childhood Least Restrictive Environment ................................................................. 6 - 9
E. Recent Case Law............................................................................................................... 6 - 10
CHAPTER 7
REEVALUATION
A. Purpose of the Reevaluation .............................................................................................. 7 - 1
B. Need for the Reevaluation.................................................................................................. 7 - 2
C. Prior Written Notice and Request for Consent ................................................................... 7 - 3
D. Members of the Reevaluation Team .................................................................................. 7 - 7
E. Conducting the Reevaluation ............................................................................................. 7 - 7
F. Determining Continued Eligibility........................................................................................ 7 - 12
G. Reevaluation for A Child Identified as Developmentally Delayed....................................... 7 - 13
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Kansas Special Education Process Handbook
CHAPTER 8
DISCONTINUING SPECIAL EDUCATION SERVICES
A. No Longer Eligible for Services .......................................................................................... 8 - 1
B. Graduation ......................................................................................................................... 8 - 1
C. Services to Age 21 ............................................................................................................. 8 - 2
D. Summary of Performance .................................................................................................. 8 - 3
E. Revocation of Consent for Special Education Services...................................................... 8 - 4
F. Student Drops Out of School.............................................................................................. 8 - 5
G. Prior Written Notice and Request for Consent ................................................................... 8 - 5
CHAPTER 9
CONFIDENTIALITY
A. Federal and State Requirements ....................................................................................... 9 - 1
B. Access to Records ............................................................................................................. 9 - 3
C. Transfer of Records ........................................................................................................... 9 - 5
D. Release of Information ....................................................................................................... 9 - 6
E. Amendment of Records...................................................................................................... 9 - 8
F. Destruction of Records....................................................................................................... 9 - 8
G. Age of Majority ................................................................................................................... 9 - 9
H. Test Protocols .................................................................................................................... 9 - 9
I. Discipline Records ............................................................................................................. 9 - 10
J. Child in Need of Care......................................................................................................... 9 - 11
CHAPTER 10 MEDIATION
A. Mediation Process.............................................................................................................10 - 1
B. Mediation Requests ..........................................................................................................10 - 2
C. Mediation Participants.......................................................................................................10 - 3
D. Special Education Mediators.............................................................................................10 - 3
E. Mediation Results..............................................................................................................10 - 4
CHAPTER 11 FORMAL COMPLAINT
A. Filing a Formal Complaint..................................................................................................11 - 1
B. Investigating the Complaint ...............................................................................................11 - 2
C. Follow-Up on the Complaint ..............................................................................................11 - 3
D. Appealing the Decision......................................................................................................11 - 3
E. Sanctions by the State Board of Education .......................................................................11 - 3
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Kansas Special Education Process Handbook
CHAPTER 12 DUE PROCESS HEARINGS
A. Filing for Due Process .......................................................................................................12 - 2
B. Assigning a Special Education Due Process Hearing Officer............................................12 - 2
C. Resolution Meeting ...........................................................................................................12 - 3
D. Pre-Hearing Requirements................................................................................................12 - 4
E. Conducting the Due Process Hearing ...............................................................................12 - 4
F. Reaching A Decision.........................................................................................................12 - 5
G. Appealing the Due Process Decision ................................................................................12 - 5
H. Stay Put.............................................................................................................................12 - 6
I. Civil Actions.......................................................................................................................12 - 6
J. Attorney Fees....................................................................................................................12 - 6
CHAPTER 13 SUSPENSION AND EXPULSION FOR DISCIPLINARY VIOLATIONS
(CODE OF STUDENT CONDUCT AND WEAPONS, DRUGS,
OR SERIOUS BODILY INJURY OPTION)
A. Local School District Responsibilities................................................................................13 - 2
B. Code of Conduct Violations...............................................................................................13 - 3
C. Short-Term Removals (Not A Change of Placement)........................................................13 - 5
D. Long-Term Removals (A Change of Placement)...............................................................13 - 7
E. 45 School Day Interim Alternative Educational Setting
(Weapons, Drugs, or Serious Bodily Injury) ......................................................................13 - 10
F. Appeals .............................................................................................................................13 - 11
G. Children Not Determined Eligible for Special Education....................................................13 - 14
H. Reporting A Crime.............................................................................................................13 - 15
I. Seclusion Rooms and Restraint……………………………………………………………….. 13 - 17
CHAPTER 14 CHILDREN IN PRIVATE AND PAROCHIAL SCHOOLS
A. Children Placed in Private Schools by the Public School ..................................................14 - 2
B. Children Enrolled by Their Parents in Private Schools Where
Free Appropriate Public Education (FAPE) is at Issue......................................................14 - 3
C. Child Find for Children Voluntarily Enrolled in Private Schools by their Parents ...............14 - 4
D. State Law Requirements for Children Voluntarily Enrolled in Private Schools
by their Parents.................................................................................................................14 - 6
E. Federal Requirements for Children Voluntarily Enrolled in Private Schools
by their Parents.................................................................................................................14 - 7
F. Mediation and Due Process Rights of Private School Children .................................. …. 14 - 14
February 2008
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Kansas Special Education Process Handbook
Special Education Process Handbook
Appendices
Appendix A
Figure 1-1
KSDE Memo: Clarification of the term "parent" after IDEA 2004
Figure 1-2
Parent Rights in Special Education (Procedural Safeguards)
Figure 1-3
Who can sign as a parent? (Chart in Chapter)
Figure 1-4
KSDE Memo: "Reasonable Time to Respond to Parent Request...
Figure 1-5a
Prior Written Notice for Evaluation or Reevaluation and Request for Consent (Revised)
Figure 1-5b
Prior Written Notice for Evaluation and Request for Consent (New)
Figure 1-5c
Prior Written Notice for Reevaluation and Request for Consent (New)
Figure 1-6
Prior Written Notice for Identification, Special Education and Related Services,
Education Placement, Change in services, Change in Placement, and Request for
Consent
Figure 1-7
Notice of Meeting
Figure 1-8
SRS Memo "Foster Care Database..."
Figure 1-9
Letter to Smith (OSEP, Jan 2007)
Figure 2-1
Sample Public Notice for Child Find
Figure 2-2
General Education Interventions (GEI)
Figure 2-3
State Policy on MTSS (RtI) for Parents
Figure 3-1
Initial Evaluation Flow Chart (in Handbook)
Figure 3-2
Initial Evaluation Timeline (in Handbook)
Figure 3-3
Notice that No Additional Data are Needed
Figure 3-4
Eligibility Indicators, Fall 2007
Figure 3-5
Evaluation/Eligibility Report Checklist
Figure 4-1a
Regular Education Preschool Teacher at IEP Meeting
Figure 4-1b
Chart-Regular Education Preschool Teach at IEP Meeting
Figure 4-2
Comparison of IFSP and IEP Content and Consent (Revised)
Figure 4-3
Excusal from IEP Meeting (New Form)
Figure 4-4
IEP Team Considerations
Figure 4-5
Parent Consent to Invite Representative of Non-Educational Agency to IEP
Figure 4-6
IEP Meeting Requirements
Figure 4-7
IEP Content Checklist
Figure 4-8
Agreement To Amend the IEP
Figure 5-1
Assistive Technology Checklist
Figure 5-2
ESY Determination
Figure 6-1
LRE Decision Tree
Figure 6-2
LRE Decision Tree Support
Figure 6-3
Kansas State Board of Education Policy on Least Restrictive Environment, Memo of
Clarification 94-A
February 2008
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Kansas Special Education Process Handbook
Figure 6-4
Kansas State Board of Education Policies Regarding State School for the Deaf and
State School for the Blind
Figure 7-1
Reevaluation Not Needed (New Form)
Figure 8-1
OSEP Letter to Runkel (Grading/Diplomas)
Figure 8-2
Summary of Performance
Figure 9-1
Model Notification of Rights under FERPA
Figure 9-2
Sample Release of Records
Figure 9-3
Sample Log for Accessing Records
Figure 9-4
Sample List of Employees Who Can Access Records
Figure 9-5
Parent Consent for Medicaid (Revised)
Figure 9-6
Kansas Medicaid Assistance Program Provider Manual (LEA)
Figure 10-1
Special Education Mediation Process Flow Chart
Figure 10-2
Request for Mediation
Figure 10-3
Agreement to Mediate
Figure 10-4
Confidentiality Pledge
Figure 10-5
Mediation Process Timeline
Figure 10-6
Rules of Mediation
Figure 11-1
Formal Complaint Procedure Flow Chart
Figure 11-2
Formal Complaint System Timeline
Figure 11-3
Request Form for Formal Complaint
Figure 12-1
Due Process Flow Chart (Revised)
Figure 12-2
Request for Due Process Hearing For District
Figure 12-3
Request for Due Process Hearing For Parent
Figure 12-4
Appointment of Due Process Hearing Officer by LEA (Revised)
Figure 13-1
Procedures For Disciplinary Violations For Code of Student Conduct Including
Weapons, Drugs, or Serious Bodily Injury (In Chapter)
Figure 13-2
Letter to Huefner, OSEP, October 3, 2006
Figure 13-3
Guidelines for the Use of Seclusion Rooms and Restraint on Children with Disabilities
Figure 13-4
Request for Expedited Due Process Hearing for District
Figure 13-5
Request for Expedited Due Process Hearings for Parent
Figure 13-6a
Functional Behavioral Assessment
Figure 13-6b
Functional Behavior Assessment Flow Chart
Figure 13-7
Manifestation Determination Report (New)
February 2008
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Kansas Special Education Process Handbook
Appendix B
: Federal Law, Individuals With Disabilities Education Act, December 2004
Appendix C
: Federal Regulations for IDEA, August 14. 2006
Appendix D
: State Statutes: Kansas Special Education for Exceptional Children Act, KSA 72-661 through
72-996, and other applicable State Statutes.
Appendix E
: State Special Education Regulations, KAR 91-40-1 through 91-40-53, effective 2008
Appendix F
: Family Educational Rights and Privacy Act (FERPA), July 1, 2006
Appendix G
: Section 504 of The Rehabilitation Act
Appendix H
: Other Resources
Appendix I
: Index to the Process Handbook
Appendix J
: Index to State Special Education Law and Regulations
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Kansas Special Education Process Handbook
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Kansas Special Education Process Handbook
SPECIAL EDUCATION FLOW CHART
General Education
Parent Involvement
(Chapter 1)
General Education Interventions
(Chapter 2)
Parent Rights
(Chapter 1)
Referral for Evaluation
(Chapter 2)
Evaluation for Possible Exceptionality
(Chapter 3)
Eligibility Meeting
(Chapter 3)
Section 504
Eligible
(Appendix G)
Not Eligible,
No Services
Eligible &
Need for Services
(Chapter 3)
IEP Team Meeting
(Chapter 4)
Placement
IEP Goals
(Chapter 6)
(Chapter 4)
Special Education
& Related Services
(Chapter 5)
Private Schools
(Chapter 14)
Discontinuing Services
(Chapter 8)
Reevaluation
(Chapter 7)
Continuing Services
Annual IEP/Review Revise IEP
Special Considerations:
Confidentiality
Chapter 9
Suspension/Expulsion
Chapter 13
Mediation
Chapter 10
Code of Student Conduct and
Due Process
Chapter 11
weapons, drugs, or dangerous behavior
Formal Complaint
Chapter 12
CHAPTER 1
PARENT RIGHTS IN SPECIAL EDUCATION
(PROCEDURAL SAFEGUARDS)
INTRODUCTION
The reauthorization of the Individuals with Disabilities Education Improvement Act (IDEA), in 2004, retained important
procedures which schools must use when evaluating eligibility for special education services, when developing or
changing a child’s Individualized Education Program (IEP) or when attempting to resolve serious disputes regarding
special education issues. These procedures are sometimes referred to as “procedural safeguards” or “parent rights.”
This chapter will focus on the procedural safeguards related to evaluations and to the development and revision of
the IEP. Later chapters will address procedures regarding dispute resolution processes, such as due process
hearings, mediation and formal complaints to the state department of education.
The procedural safeguards specified in the IDEA were primarily designed to help schools and parents work together to
develop effective educational programs for children with disabilities. In
Henry Hudson Central School District v. Rowley,
102 S.Ct. 3034 (1982), the United States Supreme Court said:
“…we think that the importance Congress attached to these procedural safeguards cannot be
gainsaid. It seems to us no exaggeration to say that Congress placed every bit as much emphasis
upon compliance with procedures giving parents and guardians a large measure of participation at
every stage of the administrative process … as it did upon the measurement of the resulting IEP
against a substantive standard. We think that the congressional emphasis upon full participation of
concerned parties throughout the development of the IEP, as well as the requirements that state
and local plans be submitted to the Commissioner for approval, demonstrate the legislative
conviction that adequate compliance with the procedures prescribed would in most cases assure
much if not all of what Congress wished in the way of substantive content in an IEP.”
This chapter provides information to assist schools in ensuring that parents and students receive their rights as
established in IDEA-2004. The following topics will be discussed:
A. Parent Participation
B. Definition of Parent
C. Parent Rights In Special Education Notice
D. Prior Written Notice
E. Parent Consent
F. Parent Consent Requested but Not Provided
G. Notice of IEP Meeting
H. Rights for Parents of Gifted Students
I.
Education Advocates
J. Student Rights at Age 18
February 2008
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Kansas Special Education Process Handbook
A. PARENT PARTICIPATION
To address the requirement to strengthen the role of parents in the special education process, Congress mandated
that schools afford parents the opportunity to be members of any decision making team for their child, including
eligibility, initial evaluation and reevaluation, and development of an individualized education program (IEP) for the
provision of a free appropriate public education (FAPE). Schools are to ensure that parents have the opportunity to
be members of the IEP team that makes decisions on the educational placement of their child. Although logistically
this increased involvement of parents may present challenges in arranging convenient meeting times, it should result
in decisions that are individualized to meet the unique needs of students and in the development of a closer, more
collaborative relationship with parents. Additionally, parents have a responsibility to participate and provide their
input into their child’s education. School teams recognize the contributions that parents can make to the process and
how they can help ensure their child’s educational progress (K.A.R. 91-40-25(a); K.A.R. 91-40-17(a); 34 C.F.R.
300.501(b)(c)).
Every child with an exceptionality is entitled to receive a free appropriate public education (FAPE). Parent rights are
intended to ensure that children receive FAPE. FAPE is defined as special education and related services that meet
the following criteria:
1. are provided at public expense, under public supervision and direction, and without charge;
2. meet the standards of the state board;
3. include an appropriate preschool, elementary, or secondary school education; and
4. are provided in conformity with an individualized education program. (K.A.R. 91-40-1(z))
Parents are to be provided notice of meetings related to eligibility, evaluation, reevaluation, IEP development,
provision of a free appropriate public education (FAPE) for their child and educational placement decisions, to ensure
that they have the opportunity to participate in the meetings (See Section G of this chapter.). The notice
requirements are the same as for notice of an IEP meeting (K.A.R. 91-40-17(a)(b)(1); K.A.R. 91-40-21(c)(1)(d);
K.A.R. 91-40-24(b)(c); 34 C.F.R. 300.501(b)(2); 34 C.F.R. 300.322(a)(b)(1)).
The school must make reasonable efforts to ensure that the parents understand, and have the opportunity to
participate in these meetings, including arranging for an interpreter for parents with deafness, or for parents whose
native language is other than English. The parent and the school may agree to use alternative means of meeting
participation, such as video conferences or conference calls (K.A.R. 91-40-17(c); K.A.R. 91-40-25(d); 34 C.F.R.
300.322(e)). These meeting requirements do not apply to informal or unscheduled conversation of school personnel
on issues such as teaching methodology, lesson plans, or coordination of service provision. A meeting also does
not include preparatory activities that public agency personnel engage in to develop a proposal or response to a
parent proposal that will be discussed at a later meeting (K.A.R. 91-40-25(e); 34 C.F.R. 300.501(b)(3)).
In addition to involving parents in making decisions about their children, schools should involve parents of children
with exceptionalities in their school improvement planning process. Parents should be involved in designing,
evaluating, and where appropriate, implementing school improvement plans. In Kansas, school improvement plans
are implemented under Quality Performance Accreditation (QPA), which is built upon standards for student
educational performance and includes Special Education Focused Assistance and Monitoring (FAM). Each school
should include parents of students with exceptionalities on each School Site Council.
The Kansas special education law (K.S.A. 72-961-997), known as the Special Education for Exceptional Children
Act, revised in 2006, (referred to here as the "State statute") also sets forth parental responsibilities. This law
requires parents to see that their child with a disability (not giftedness) attends school so that their child can receive
the special education and related services on the child’s IEP, or to provide such services privately. This means that
for a child with a disability who has an IEP (or IFSP ages 3-5) compulsory attendance may begin as early as age 3
(K.S.A. 72-977).
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State Statute:
K.S.A. 72-977
(a)
Except as otherwise provided in this section, it shall be the duty of the parent of each exceptional child to require such child to attend
school to receive the special education and related services which are indicated on the child's IEP or to provide for such services privately.
(b)
The provisions of subsection (a) do not apply to gifted children or to parents of gifted children.
State Regulation:
K.A.R. 91-40-17. IEP team meetings and participants.
(a) Each agency shall take steps to ensure that one or both of the parents of an exceptional child are present at each IEP meeting or are afforded
the opportunity to participate. These steps shall include the following:
(1) Scheduling each meeting at a mutually agreed-upon time and place and informing the parents of the information specified in subsection
(b) of this regulation;
(2) except as otherwise provided in K.A.R. 91-40-37, providing written notice, in conformance with subsection (b) of this regulation, to the
parents of any IEP team meeting at least 10 days in advance of the meeting.
(b) The notice required in subsection (a) of this regulation shall meet the following requirements:
(1) The notice shall indicate the purpose, time, and location of the IEP team meeting and the titles or positions of the persons who will
attend on behalf of the agency, including, if appropriate, any other agency invited to send a representative to discuss needed transition
services.
(2) If the meeting is for a child who has been receiving special education services under the infant and toddler provisions of the federal law
but is now transitioning to the provisions for older children, the notice shall inform the parents that they may require that a
representative of the infant and toddler program be invited to attend the initial IEP team meeting to assist with the smooth transition of
services.
(3) The notice shall indicate the following information, if a purpose is to consider postsecondary goals and transition services for the child:
(A) The agency will invite the parents’ child to attend.
(B) One of the purposes of the meeting will be to consider the postsecondary goals and needed transition services for the student.
(3) The parents have the right to invite to the IEP
team meeting individuals whom the parents believe to have knowledge or special expertise about their child.
(c) If neither parent of an exceptional child can be physically present for an IEP team meeting for the child, the agency shall attempt other
measures to ensure parental participation, including individual or conference telephone calls.
K.A.R. 91-40-21(c)(2)
In determining the educational placement of a gifted child, each agency shall ensure that the placement decision is made by a group of persons,
including the child’s parent and other persons who are knowledgeable about the child, the meaning of the evaluation data and appropriate
placement options for gifted children.
K.A.R. 91-40-25. Opportunity to examine records and participate in meetings.
(a)
Each agency shall allow the parents of an exceptional child an opportunity to inspect and review all education records and participate in
any meeting concerning their child with respect to the following:
(1) The identification, evaluation, or education placement of the child; and
(2) the provision of FAPE to the child.
(b)
Each agency shall take steps to ensure that one or both of the parents of an exceptional child are present at each meeting concerning their
child or are afforded the opportunity to participate. These steps shall include the following:
(1) Scheduling the meeting at a mutually agreed-upon time and place and informing the parents of the information specified in subsection
(c) of this regulation; and
(2) providing prior written notice of any meeting, in accordance with subsection (c) of this regulation, to the parents of the child.
(c)
The notice required in subsection (b) of this regulation shall indicate the purpose, time, and location of the meeting and the titles or positions of the
persons who will attend on behalf of the agency or at the agency’s request.
(d)
If neither parent of an exceptional child can be physically present for a meeting concerning the child, the agency shall attempt other measures
to ensure parental participation, including individual or conference telephone calls.
(e)
As used in this regulation, a meeting shall not include the following:
(1) Informal or unscheduled conversations involving agency personnel and conversations on issues including teaching methodology,
lesson plans, or coordination of service provision if those issues are not addressed in the child’s IEP; and
(2) preparatory activities that agency personnel engage in to develop a proposal or response to a parent's proposal that will be discussed
at a later meeting.
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B.
DEFINITION OF PARENT
School personnel must determine the appropriate person(s) to make educational decisions on behalf of the child.
Those individuals have a right to receive notice, give or revoke consent, file formal complaints, request mediation, file
for a due process hearing, give or deny permission for release of records, etc. (See Appendix A, Figure 1-1, KSDE
Memo: “Definition of a Parent”)
In Kansas “parent” is defined as:
•
A natural (biological) parent;
•
An adoptive parent;
•
A person acting as a parent;
•
A legal guardian;
•
An education advocate; or
•
A foster parent, if the foster parent has been appointed the education advocate of an exceptional child.
(K.S.A. 72-962(m); 34 C.F.R. 300.30)
“Person acting as a parent” means a person such as a grandparent, stepparent or other relative with whom a child
lives, or a person other than a parent or relative who is legally responsible for the welfare of a child.
If there is more than one party qualified to act as a parent, and the biological or adoptive parents attempt to act as the
parent, the biological or adoptive parents must be presumed to be the parents and legal decision makers, unless they
do not have legal authority to make educational decisions for the child. A judge may decree or order a person acting
as a parent or a legal guardian or persons to act as the “parent” to make educational decisions for the child. The
school shall recognize this person(s) as the legal decision maker for the child (K.A.R. 91-40-27(c); 34 C.F.R.
300.30(b)(1)(2)).
If parents are divorced, regardless of which parent has primary custody, the school must provide Prior Written Notice
of any special education action to both parents, even if only one parent has the right to consent, unless a court order
precludes this from happening. This applies to all special education notice requirements including notice of an IEP
meeting. If the school is only aware of one parent's address, the school must make reasonable efforts to locate the
other parent in order to provide notice. However, consent from one parent is sufficient. In the event that the school
receives consent forms from both parents, with one parent providing consent for the action and the other denying
consent, the school is deemed to have received consent and must fulfill its obligation to provide FAPE to the student.
The parent who denies consent has the right to request mediation or file for due process.
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The following checklist in Figure 1-3 is provided as a guide to school personnel to help determine the legal
educational decision maker:
FIGURE 1-3
WHO CAN GIVE CONSENT FOR EDUCATIONAL DECISIONS?
1. Are Parents available?
A
.___
Natural (biological) parent(s):
If parents are divorced, notify both parents unless a court order
precludes this from happening. Consent from one parent is sufficient even if the other parent refuses to
consent.
B
.___
Adoptive parent(s):
If adoption is not final, an education advocate is needed; documentation is the
‘Decree of Adoption’.
C
.___
Guardian:
Guardianship has been completed and is documented with “Letters of Guardianship”
issued by a court.
2. Parent is unknown or unavailable (Person acting as a parent)
A
. ___
Person Acting as a Parent:
A person, such as a grandparent, stepparent or other relative with whom
a child lives, or a person other than a parent who is legally responsible for the welfare of a child.
B
. ___
Education Advocate:
Appointment as an education advocate has been completed and is
documented with a Letter of Appointment from Families Together.
C.
___
Foster parent:
Only if appointment as an education advocate has been completed and is
documented with a Letter of Appointment from Families Together.
3
.
The student at age 18:
At age 18 the student becomes his/her own educational decision-maker unless
determined by a court to be incompetent.
State Statute:
K.S.A. 72-961
(m) ‘‘Parent’’ means: (1) A natural parent; (2) an adoptive parent; (3) a person acting as parent; (4) a legal guardian; (5) an education
advocate; or (6) a foster parent, if the foster parent has been appointed the education advocate of an exceptional child.
(n) ‘‘Person acting as parent’’ means a person such as a grandparent, stepparent or other relative with whom a child lives or a person other
than a parent who is legally responsible for the welfare of a child.
(o) ‘‘Education advocate’’ means a person appointed by the state board in accordance with the provisions of section 13, and amendments
thereto. A person appointed as an education advocate for a child shall not be: (1) An employee of the agency which is required by law to
provide special education or related services for the child; (2) an employee of the state board, the department, or any agency which
is directly involved in providing educational services for the child; or (3) any person having a professional or personal interest which
would conflict with the interests of the child.
State Regulations:
K.A.R. 91-40-27 Parent Consent
(c) Unless a judicial order specifies to the contrary, an agency shall recognize the biological or adoptive parent of an exceptional child who is
a minor as the educational decision maker for the child if the parent exerts his or her rights on behalf of the child, even if other persons meet
the definition of parent for the particular child.
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C. PARENT RIGHTS IN SPECIAL EDUCATION NOTICE
To ensure that parents have knowledge about their rights under the special education law, schools are required to
provide a copy of the Parent Rights in Special Education Notice to the parents:
•
At least one time in a school year; and
•
Upon a referral or parent request for initial evaluation;
•
First formal complaint or due process complaint filed in a school year;
•
Upon a disciplinary removal from school that constitutes a change in placement; and
•
Upon parent request.
These are the
only times when the Parent Rights Notice is required to be provided. IDEA-04 eliminated the
requirement to provide the Parent Rights Notice with the notification of each IEP meeting.
The notice is to be written in language understandable to the general public and provided in the native language of
the parent or other mode of communication used by the parent unless it is clearly not feasible to do so. If the
language or mode of communication is not a written language, the school must translate the notice orally or use
another mode of communication so that the parent understands the content of the notice. Parents may elect to
receive the Parent Rights Notice by electronic mail communication, if the school makes that option available (34
C.F.R. 300.504(a)(b); 34 C.F.R. 300.505). If the Parent Rights Notice is provided electronically the school should
have a copy of the email sent to the parent and documentation that the notice was received. The school may place a
current copy of the Parent Rights Notice on its Internet Web site if one exists (34 C.F.R. 300.504(b)). However,
simply putting the notice on the school’s website does not fulfill a schools obligation to provide notice to the parents.
The Parent Rights in Special Education Notice is referred to in this document as Parent Rights Notice, and is referred
to as Notice of Procedural Safeguards in federal law (34 C.F.R. 300.504
).
Special Education Services has
developed a model Parent Rights Notice that schools may use or substitute another version if it includes the required
content. If a district is not using the State version, the local version must be submitted to the KSDE Special
Education Services Team for review and approval. Check with Special Education Services for available translations
of the Parent Rights Notice. (See Appendix A, Figure 1-2, Parent Rights Notice. The notice is also available by
calling 1-800-203-9462, or on the Special Education Services Homepage at
http://www.kansped.org
.)
The Parent Rights Notice must include a full explanation of all of the procedural safeguards available as identified in
K.S.A. 72-988 and 34 C.F.R. 300.504(c):
State Statute:
K.S.A. 72-988. Parental rights
. (a) The rights of parents of exceptional children shall include, but not be limited to, the rights specified in this
section.
(b) The parents of exceptional children shall have the right to:
(1) Examine all records relating to such child and to participate in meetings with respect to the identification, evaluation, and educational
placement of the child, and the provision of a free appropriate public education to such child, and to obtain an independent educational evaluation of
the child;
(2) written prior notice in accordance with K.S.A. 72-990, and amendments thereto, whenever an agency: (A) Proposes to initiate or change; or (B)
refuses to initiate or change, the identification, evaluation, or educational placement of the child or the provision of a free appropriate public
education to the child;
(3) receive the notice required by provision (2) in their native language, unless it clearly is not feasible to do so;
(4) present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a
free appropriate public education to the child, subject to the requirements in section 8, and amendments thereto;
(5) request mediation in accordance with this act;
(6) consent, or refuse to consent, to the evaluation, reevaluation or the initial placement of their child and to any substantial change in placement of,
or a material change in services for, their child, unless a change in placement of their child is ordered pursuant to the provisions of section 17, and
amendments thereto, or the agency can demonstrate that it has taken reasonable measures to obtain parental consent to a change in placement or
services, and the child’s parent has failed to respond. If the parent fails to respond to the request for parental consent to a substantial change in
placement or a material change in services, the agency must maintain detailed records of written and verbal contacts with the parent and the response, if
any, received from the parent;
(7) be members of any group that makes decisions on the educational placement of their child;
(8) demand that their child remain in the child’s current educational placement pending the outcome of a due process hearing, except as otherwise
provided by federal law and this act;
(9) subject to the requirements of this act, request a due process hearing in regard to any complaint filed in accordance with provision (4) of this
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subsection, or as authorized in section 18, and amendments thereto;
(10) appeal to the state board any adverse decision rendered by a hearing officer in a local due process hearing;
(11) appeal to state or federal court any adverse decision rendered by a review officer in a state-level due process appeal; and
(12) recover attorney fees, as provided in the federal law, if they are the prevailing parties in a due process hearing or court action; however, only a
court shall have the authority to award attorney fees, and such fees may be reduced or denied in accordance with federal law.
(c) The state board shall develop a model form to assist parents in filing a complaint and due process complaint notice.
(d) The state board shall develop, and thereafter amend as necessary, and distribute for use by agencies, a notice of the rights available to the parents
of exceptional children under the federal law and this act. The notice shall include a full explanation of the rights and be made available in various
languages and be written so as to be easily understandable by parents.
(e) A list of the rights available to the parents of exceptional children shall be given to the parents only one time each school year, except a copy also
shall be given to the parents: (A) Upon initial referral or parental request for evaluation; (B) upon request of a parent; and (C) upon the initial filing
of a complaint under subsection (b)(4). History. L. 1999, ch. 116, § 9; L. 2005, ch. 171, § 15; July 1.
Federal Regulation:
§ 300.504 Procedural safeguards notice.
(a)
General
. A copy of the procedural safeguards available to the parents of a child with a disability must be given to the parents only one time a
school year, except that a copy also must be given to the parents—
(1) Upon initial referral or parent request for evaluation;
(2) Upon receipt of the first State complaint under §§ 300.151 through 300.153 and upon receipt of the first due process complaint under §
300.507 in a school year;
(3) In accordance with the discipline procedures in § 300.530(h); and
(4) Upon request by a parent.
(b)
Internet Web site.
A public agency may place a current copy of the procedural safeguards notice on its Internet Web site if a Web site exists.
(c)
Contents.
The procedural safeguards notice must include a full explanation of all of the procedural safeguards available under § 300.148, §§
300.151 through 300.153, § 300.300, §§ 300.502 through 300.503, §§ 300.505 through 300.518, § 300.520, §§ 300.530 through 300.536 and §§
300.610 through 300.625 relating to—
(1) Independent educational evaluations;
(2) Prior written notice;
(3) Parental consent;
(4) Access to education records;
(5) Opportunity to present and resolve complaints through the due process complaint and State complaint procedures, including—
(i) The time period in which to file a complaint
(ii) The opportunity for the agency to resolve the complaint; and
(iii) The difference between the due process complaint and the State complaint procedures, including the
jurisdiction of each procedure, what issues may be raised, filing and decisional timelines, and relevant procedures;
(6) The availability of mediation;
(7) The child’s placement during the pendency of any due process complaint;
(8) Procedures for students who are subject to placement in an interim alternative educational setting;
(9) Requirements for unilateral placement by parents of children in private schools at public expense;
(10) Hearings on due process complaints, including requirements for disclosure of evaluation results and recommendations;
(11) State-level appeals (if applicable in the State);
(12) Civil actions, including the time period in which to file those actions; and
(13) Attorneys’ fees.
(d)
Notice in understandable language.
The notice required under paragraph (a) of this section must meet the requirements of § 300.503(c).
300.505 Electronic mail.
A parent of a child with a disability may elect to receive notices required by §§300.503, 300.504, and 300.508 by an electronic mail communication,
if the public agency makes that option available.
D. PRIOR WRITTEN NOTICE
One of the procedural safeguards afforded to parents is the required Prior Written Notice of certain proposed special
education actions. This notice must be provided to parents within a reasonable amount of time before the date the
school proposes to
initiate or change the
•
identification,
•
evaluation,
•
educational placement of their child, or
•
the provision of special education and related services (FAPE) to their child.
Prior Written Notice is also provided when the school refuses a parent's request to initiate or change the
identification, evaluation, or educational placement of the child, or to make a change to the provision of special
education and related services to the child (K.S.A. 72-988(b)(2); 34 C.F.R. 300.503(a)). When parents make a
request for an evaluation (whether oral or written), KSDE has determined that 15 school days is a reasonable time for
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providing parents with a Prior Written Notice of the district’s proposal to conduct the evaluation or the district’s refusal
to conduct the evaluation (See Appendix A, Figure 1-4, KSDE Memo, “Reasonable Time” to respond to parent
request for evaluation, January 8, 2002).
Additionally, Prior Written Notice is provided to the parent when the school proposes to make a change in services or
placement that is not substantial or material. However, parent consent is not required for either of these changes.
The Prior Written Notice provided to parents for each proposed special education action must contain specific
information:
•
a description of the action proposed or refused;
•
an explanation of why the school proposes or refuses to take the action;
•
a description of each evaluation procedure, assessment, record, or report the school used as basis for
proposed or refused action;
•
a description of the other options the IEP team considered and reasons why they were rejected;
•
a description of any other factors relevant to the proposal or refusal;
•
a statement that the parents have parental rights under the law; and
•
sources for parents to contact to assist in understanding their rights
.
(K.S.A. 72-990)
Additionally, if the notice is to propose to conduct an initial evaluation or a reevaluation, the notice must describe any
evaluation
procedures that the school proposes to conduct (K.S.A. 72-986(b); 34 C.F.R. 300.304(a)(1)).
The notice is to be provided in language understandable to the general public, and in the native language of the
parent unless it is clearly not feasible to do so. Additionally, if the native language or other mode of communication
of the parent is not a written language, the school must take steps to ensure that (a) the notice is translated orally, or
by other means, to the parent in his or her native language or other mode of communication (such as sign language);
(b) the parent understands the content of the notice; and (c) there is written documentation that these requirements
are met. (K.A.R. 91-40-26(b)(c); 34 C.F.R. 300:503(b)(c))
Figure 1-5a and 1-5b, Prior Written Notice for Evaluation or Reevaluation and Figure 1-6, Prior Written Notice for
Identification, Eligibility and Placement can be found in Appendix A. Copies of these forms may be accessed at
www.kansped.org . If a district is not using these State forms, the local versions must be submitted to KSDE Special
Education Services Team for review and approval.
State statute and regulations (K.S.A. 72-990; K.A.R. 91-40-26) reflect Federal requirements for the content and
provision of the Prior Written Notice (34 C.F.R. 300.503):
State Statute:
K.S.A. 72-986
(b) An agency shall provide notice to the parents of a child that describes any evaluation procedures such agency proposes to conduct.
K.S.A. 72-988. Parental rights.
(2) written prior notice in accordance with K.S.A. 72-990, and amendments thereto, whenever an agency:
(A) Proposes to initiate or change; or
(B) refuses to initiate or change, the identification, evaluation, or educational placement of the child or the provision of a free appropriate
public education to the child;
(3) receive the notice required by provision (2) in their native language, unless it clearly is not feasible to do so;
K.S.A. 72-990. Notice of parental rights; contents.
The notice required by subsection (b)(2) of K.S.A. 72-988, and amendments thereto,
shall include:
(a) A description of the action proposed or refused by the agency;
(b) an explanation of why the agency proposes or refuses to take the action;
(c) a description of other options that the agency or IEP team considered and the reasons those options were rejected;
(d) a description of each evaluation procedure, assessment, record, or report the agency used as a basis for the proposed or refused action;
(e) a description of any other factors that are relevant to the agency’s proposal or refusal;
(f) a statement that the parents have protection under the procedural safeguards of this act and, if the notice is not an initial referral for
evaluation, the means by which a copy of the procedural safeguards can be obtained; and
(g) sources for parents to contact to obtain assistance in understanding the provisions of the federal law and this act.
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State Regulation:
K.A.R. 91-40-26. Notice requirements.
(a) In providing any notice to the parents of an exceptional child in accordance with K.S.A. 72-990 and amendments thereto,
regarding
action proposed or refused by an agency, an the agency shall ensure that the notice includes the following descriptions:
(1) a description of other options the agency considered and the reasons why those options were rejected; and
(2) a description of other factors that are relevant to the agency's proposal or refusal.
(b) The notice shall be is written in a language understandable to the general public and is provided in the native language of the parent or
other mode of communication used by the parent, unless it is clearly not feasible to do so.
(c) If the native language or other mode of communication of a parent is not a written language, the agency shall take steps to ensure all
of the following:
(1) The notice is translated orally or by other means to the parent in the parent’s native language or other mode of communication.
(2) The parent understands the content of the notice.
(3) There is written evidence that the requirements of paragraphs (1) and (2) of this subsection have been met.
Sources for Parents to Contact to Obtain Assistance in Understanding Parent Rights
In addition to school staff, there are other resources parents can contact for more information to understand their
parent rights. IDEA provides funding for a Parent Training and Information (PTI) Center in each state. In Kansas,
Families Together, Inc., is the PTI and provides training, information and resources for parents. Schools are
encouraged to include any additional resources, including local resources that are knowledgeable and available to
parents, including any of the following:
Kansas State Department of Education, 800-203-9462 (in-State only)
Families Together, 800-264-6343
Disability Rights Center of Kansas (DRC), 877-776-1541
Keys for Networking, 785-233-8732
E. PARENT CONSENT
Federal and State laws and regulations have specific requirements for requesting parent consent. Consent is always
to be “informed consent.” The Prior Written Notice must accompany the request for consent for each proposed
special education action. The parent must agree in writing to the action for which his or her consent is sought (K.A.R.
91-40-27(a); 34 C.F.R. 300.300). In determining that informed consent is obtained, the following must be insured:
a. The parent has been fully informed of all information relevant to the activity for which consent is being
sought, in his or her native language, or other mode of communication.
b. The parent understands and agrees in writing to the carrying out of the activity for which his or her consent
is sought, and the consent describes that activity and lists the records (if any) that will be released and to
whom.
c. The parent understands that the granting of consent is voluntary on the part of the parent and may be
revoked at any time.
d. If a parent revokes consent, that revocation is not retroactive (i.e., it does not negate an action that has
occurred after the consent was given and before the consent was revoked). (K.A.R. 91-40-1(l); 34 C.F.R.
300.9)
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Parent consent is required for the following actions:
1.
Consent to conduct an initial evaluation:
If the child is enrolled in a public school or seeks to be enrolled
in a public school and the parent does not provide consent (refuses) for initial evaluation, or the parent fails
to respond to a request to provide consent, the school may, but is not required to, pursue the initial
evaluation of the child by utilizing the procedural safeguards available under special education laws and
regulations, including mediation. If the parent refuses or does not respond, the school does not violate its
obligation for the provision of FAPE to the child if it declines to pursue the evaluation (K.A.R. 91-40-27(a),
(f)(3); 34 C.F.R. 300.300(a)).
2.
Consent to conduct a reevaluation:
If the parent refuses to consent to a reevaluation, the school may,
but is not required to, pursue the reevaluation by using mediation or due process procedures. Additionally,
informed parental consent is not required to conduct a reevaluation if the school can demonstrate that: (a) it
made reasonable efforts to obtain such consent; and (b) the child’s parent has failed to respond (K.A.R. 91-
40-27(a), (f)(3),(g); 34 C.F.R. 300.300(c)).
3.
Consent for the initial provision of services on the IEP
: If the parent fails to respond or refuses to
consent to initial services the school
can not use mediation or due process procedures in order to obtain
agreement or a ruling that the services may be provided to the child. Under these circumstances, the
school does not violate its obligation for the provision of FAPE to the child for failure to provide the child with
the special education and related services for which the public agency requested consent. In addition, the
school is not required to convene an IEP meeting or develop an IEP for the child (K.A.R. 91-40-
27(a)(f)(3)(g); 34 C.F.R. 300.300(b)).
4.
Consent to make a substantial change in placement (more than 25% of the child's school day):
If the
parent refuses to consent to a substantial change in placement, the school may, but is not required to,
pursue the proposed substantial change in placement by using mediation or due process procedures.
Additionally, informed parental consent is not required to make a substantial change in placement if the
school can demonstrate that: (a) it made reasonable efforts to obtain such consent; and (b) the child’s
parent has failed to respond; or (c) if the change is made under the discipline provisions in K.A.R. 91-40-33-
38 (K.A.R. 91-40-27(a)(f)(1)(g); K.A.R. 91-40-1(rrr)).
5.
Consent to make a material change in services (25% or more of any one service):
If the parent
refuses to consent to a material change in services, the school may, but is not required to, pursue the
material change in services by using mediation or due process procedures. Additionally, informed parental
consent is not required to make a material change in services if the school can demonstrate that: (a) it
made reasonable efforts to obtain such consent; and (b) the child’s parent has failed to respond; or (c) if the
change is made under the discipline provisions in K.A.R. 91-40-33-38 (K.A.R. 91-40-27(a),(f)(1)(g); K.A.R.
91-40-1(mm)).
6.
Consent to add a new service, or to delete a service completely (100%):
If the parent refuses to
consent to add or delete a service, the school may, but is not required to, pursue the action by using
mediation or due process procedures. Additionally, informed parental consent is
not required to add or
delete a service if the school can demonstrate that: (a) it made reasonable efforts to obtain such consent;
and (b) the child’s parent has failed to respond; or (c) if the change is made under the discipline provisions
in K.A.R. 91-40-33-91-40-38. Consent is
not required when the change in placement is due to graduation or
exceeding the age of eligibility for special education services. (K.A.R. 91-40-27(a),(f)(1)(g))
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7.
Consent for evaluation or services in private school:
If the parent of a child who is home schooled or
placed in a private school by the parents at their own expense does not provide consent (refuses) for an
initial evaluation or reevaluation, or the parent fails to respond to a request to provide consent, the school
may
not use mediation or due process procedures to obtain consent. (K.A.R. 91-40-27(f)(2); 34 C.F.R.
300.300(d)(4)). When the school requests consent for an initial evaluation, a reevaluation or initial services
and the parents of a private school or home-schooled child fails to respond or refuses to give consent, the
school has met it’s obligation for child find.
The following requests for parent consent do not require that the parent be provided the Prior Written Notice as
described in Section D above, however, parents must be fully informed about what they are being asked to provide
consent.
8.
Consent to excuse an IEP team member from IEP team meeting:
A required member of the IEP Team,
may be excused from attending an IEP Team meeting, in whole or in part, when the meeting involves a
modification to or discussion of the member’s area of the curriculum or related services, if, (a) the parent, in
writing, and the school consent to the excusal; and (b) the IEP Team member submits, in writing to the
parent and the IEP Team, input into the development of the IEP prior to the meeting (34 C.F.R. 300.321(e);
K.S.A. 72-987(b)(2)(3)). (See Appendix A, Figure 4-3, Excusal From IEP Meeting form or
www.kansped.org
and See Chapter 4, Individualized Educational Program.)
9.
Consent to invite outside agency:
When the IEP team is considering a child’s post-secondary goals and
transition services needed to assist the child in reaching those goals, the school is required to invite a
representative of any agency that is likely to provide or pay for transition services. The school must obtain
parental consent to invite the representative from that agency because confidential information about the
child would be shared at the meeting (K.A.R. 91-40-17(g)). (See Appendix A, Figure 4-5, Consent to Invite
Representative of Non-educational Agency to IEP Meeting or
www.kansped.org . ) (See Chapter 4,
Individualized Educational Program.)
10.
Consent for Use of Private Insurance and Medicaid:
When an IEP team has identified special education
and related services for a child who is Medicaid eligible or is covered by private insurance the school must
request parent consent at the time the services are determined, but at least annually, in order to access
Medicaid or private insurance (See Appendix A, Figure 1-9, Memo to Smith, January 23, 2007).
Parental consent is not required for the following actions:
•
Review existing data as part of an initial evaluation or a reevaluation,
•
Administer a test or other evaluation that is administered to all children unless consent is required of parents
of all children (K.A.R. 91-40-27(e); 34 C.F.R. 300.300(d)); or
•
Any other proposed special education action where parental consent is not specifically require by special
education statutes and regulations. In these situations, only Prior Written Notice to the parent of the action
proposed and the parent’s acknowledgement of the notice is required (e.g., less than a material or
substantial change in placement, or the school refuses to conduct an initial evaluation or reevaluation).
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Requirements for Parental Notice and Consent
(34 C.F.R. 300.503)
Proposed Action by the School
Prior Written Notice
(PWN)(300.503)
or Notification
Requires
Parental
Consent
Due Process
If Parent
Refuses to Give
Consent
Initiate evaluation
PWN
Yes
May/not required
Refuse to initiate initial evaluation or reevaluation
PWN
No
N/A
Identification and Eligibility Determinations
PWN
No
N/A
Initial provision of IEP services (placement)
PWN
Yes
No
Reevaluation of a student
PWN
Yes
May/not required
Substantial change in placement (25% or more of student’s
day)
PWN
Yes
May/not required
Change in placement that is less than 25% of the student’s
day
PWN
No
N/A
Material change in services (25% or more of any one
service),
includes accommodations listed on the IEP
PWN
Yes
May/not required
Change in service that is less than 25% of the service being
changed
PWN
No
N/A
Add a new service or delete one completely
PWN
Yes
May/not required
Evaluation, reevaluation or initiate services for children
parentally placed in private schools
PWN
Yes
No
Notification of the IEP meeting
Notification
No
N/A
Invite an outside agency to the IEP for secondary transition
Notification
Yes
N/A
Use of private insurance or Medicaid
Notification
Yes
N/A
Kansas Statute
K.S.A. 72-988
(b)(6) consent, or refuse to consent, to the evaluation, reevaluation or the initial placement of their child and to any substantial change in
placement of, or a material change in services for, their child, unless a change in placement of their child is ordered pursuant to the provisions of
section 17, and amendments thereto, or the agency can demonstrate that it has taken reasonable measures to obtain parental consent to a change in
placement or services, and the child’s parent has failed to respond. If the parent fails to respond to the request for parental consent to a substantial
change in placement or a material change in services, the agency must maintain detailed records of written and verbal contacts with the parent
and the response, if any, received from the parent;
State Regulations:
K.A.R. 91-40-1(l)
(l) "Consent" means all of the following:
(1) A parent has been fully informed of all information relevant to the activity for which consent is sought, in the parent's native language or
other mode of communication.
(2) A parent understands and agrees in writing to the carrying out of the activity for which consent is sought, and the consent describes that
activity and lists the records, if any, that will be released and to whom.
(3) A parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at any time, but if the parent
revokes consent, that the revocation is not retroactive and does not negate an action that has occurred after the consent was given and before the
consent was revoked.
K.A.R. 91-40-27. Parental consent.
(a) Except as otherwise provided in this regulation, an 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;
(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.
(d) An agency shall not construe parental consent for initial evaluation as parental consent for the initial provision of special education and related
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services to an exceptional child.
(e) An agency shall not be required to obtain parental consent before taking either of the following actions:
(1) Reviewing existing data as part of an evaluation, reevaluation, or functional behavioral assessment; or
(2) administering a test or other evaluation that is administered to all children, unless before administration of that test or evaluation,
consent is required of the parents of all children.
(f) (1) If the parent of an exceptional child who is enrolled or is seeking to enroll in a public school does not provide consent for an initial
evaluation or any reevaluation, or for a proposed material change in services or a substantial change in the placement of the parent's child,
an agency may, but is not required to, pursue the evaluation or proposed change by initiating due process or mediation procedures.
(2) If the parent of an exceptional child who is being home schooled or has been placed in a private school by the parent does not provide
consent for an initial evaluation or a reevaluation, or fails to respond to a request to provide consent, an agency may not pursue the
evaluation or reevaluation by initiating mediation or due process procedures.
(3) An agency shall not be in violation of its obligations for identification, evaluation or reevalutation if the agency declines to pursue an
evaluation or reevaluation, because a parent has failed to provide consent for the proposed action.
(4) Each agency shall document its attempts to obtain parental consent for action proposed under this regulation.
(g) An agency shall not be required to obtain parental consent for a reevaluation or a proposed change in services or placement of the child if the
agency has made attempts, as described in K.A.R. 91-40-17(e)(2), to obtain consent but the parents have failed to respond.
(h) An agency shall not use a parent's refusal to consent to an activity or service to deny the parent or child other activities or services offered by
the agency.
F. PARENTAL CONSENT REQUESTED BUT NOT PROVIDED
1.
Parents Do Not Respond
The school must make reasonable attempts to obtain consent from the parents for each special education action as
required. Reasonable attempts are defined as at least 2 contacts by 2 different methods and documentation of such
attempts should be kept including detailed records of telephone calls made or attempted and the results, copies of
written correspondence sent to the parents and their response if any, and visits made to the parents home or place of
employment, and the response, if any, from the parents (K.A.R. 91-40-27(g); K.A.R. 91-40-17(e)(2); 34 C.F.R.
300.322(d)(1)).
As indicated previously, parent consent is required to conduct a reevaluation, or to make a material change in services
or a substantial change in placement. However, parent consent is not required for these actions if the parent does not
respond to the schools requests for consent and the school can document its attempts to obtain parental consent as
outlined above (K.S.A. 72-988(b)(6)). Additionally, under the disciplinary protections, the school would not be deemed to
have knowledge of the child’s disability if the parent has not allowed an evaluation or refused services; or the child has
been evaluated and determined not to have a disability (K.S.A. 72-994(c)).
2.
Parents Revoke Consent
Parent consent is voluntary, and may be revoked by the parents at any time. If a parent revokes consent for existing
services, the LEA should meet with the parent to attempt to resolve the difficulty, seek mediation, or possibly initiate a
due process proceeding to override the parent's objection. If the parent cannot be convinced to continue the services,
the LEA may honor the parent's objection and cease provision of the services. The LEA should send written notice to
the parent that it stands ready, willing, and able to provide appropriate services to the child, if the parent reconsiders his
or her objection to those services.
In this case, a due process hearing is not required. However, if a due process hearing is not initiated by the school
district, it is possible the student, at a future time, could ask for compensatory education.
If a due process hearing is
initiated, the “stay put” provision in the law requires that the services and placement specified in the child’s IEP continue
during the pendency of the proceedings.
When parents revoke their consent for a specific special education action the revocation is not retroactive but becomes
effective on the date that it was revoked (K.A.R. 91-40-1(l)(3); 34 C.F.R. 300.9). Therefore, the revoking of consent does
not negate any action that has occurred after the previous consent was given and before the consent was revoked.
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If the parent refuses or revokes consent for one service or activity the school cannot deny the parent or child any other
service, benefit or activity on the child’s IEP (K.A.R. 91-40-27(h)). In addition, because consent for services must be in
writing, revocation of consent must also be in writing.
State Statute:
K.S.A. 72-961
(rrr) "Substantial change in placement" means the movement of an exceptional child, for more than 25% of the child's school day, from a less
restrictive environment to a more restrictive environment or from a more restrictive environment to a less restrictive environment.
(mm) "Material change in services" means an increase or decrease of 25% or more of the duration or frequency of a special education service, a
related service or a supplementary aid or a service specified on the IEP of an exceptional child.
G. NOTICE OF IEP TEAM MEETING
The school must take steps to ensure that one or both parents are present at each IEP meeting or are otherwise
afforded the opportunity to participate in the IEP meeting. The meeting is to be scheduled at a mutually agreed upon
time and place. The school must provide notice of an IEP meeting to the parents for the initial IEP meeting and any
subsequent IEP meetings. The notice must be provided in writing at least 10 days prior to the meeting (K.A.R. 91-
40-17(a)(2)) and inform the parents that their child is invited to attend the meeting. The written notice must indicate:
1. the purpose;
2. date;
3. time;
4. location of the meeting;
5. the titles or positions of the persons who will attend on behalf of the school (The school is to notify the parents
about who will be in attendance at an IEP team meeting, however, individuals may be indicated by position
only. The school may elect to identify participants by name, but they have no obligation to do so.); and
6. inform the parents of their right to invite to the IEP meeting individuals whom the parents believe to have
knowledge or special expertise about their child;
7. inform the parents that if their child was previously served in Part C they may request that the local Part C
coordinator or other representative be invited to participate in the initial IEP meeting to ensure a smooth
transition of services.
In addition, beginning not later than the first IEP to be in effect when the child turns 14, or younger if determined
appropriate by the IEP team, the notice must:
8. indicate that a purpose of the meeting is the consideration of the postsecondary goals and transition
services;
9. indicate that the school will invite the student; and
10. identify any other agency that will be invited, with parent consent (or student consent if age 18), to send a
representative. (K.A.R. 91-40-17(b); 34 CRF 300.322(b))
Figure 1-7 in Appendix A of is a sample Notice of Meeting form, see
www.kansped.org . Also see Chapter 4,
Individualized Education Program.
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Kansas Regulations:
K.A.R. 91-40-17. IEP team meetings and participants.
(a) Each agency shall take steps to ensure that one or both of the parents of an exceptional child are present at each IEP meeting or are afforded
the opportunity to participate. These steps shall include the following:
(1) Scheduling each meeting at a mutually agreed-upon time and place and informing the parents of the information specified in subsection (b)
of this regulation;
(2) except as otherwise provided in K.A.R. 91-40-37, providing written notice, in conformance with subsection (b) of this regulation, to the
parents of any IEP team meeting at least 10 days in advance of the meeting.
(b) The notice required in subsection (a) of this regulation shall meet the following requirements:
(1) The notice shall indicate the purpose, time, and location of the IEP team meeting and the titles or positions of the persons who will attend
on behalf of the agency, including, if appropriate, any other agency invited to send a representative to discuss needed transition services.
(2) If the meeting is for a child who has been receiving special education services under the infant and toddler provisions of the federal law but
is now transitioning to the provisions for older children, the notice shall inform the parents that they may require that a representative of the
infant and toddler program be invited to attend the initial IEP team meeting to assist with the smooth transition of services.
(3) The notice shall indicate the following information, if a purpose is to consider postsecondary goals and transition services for the child:
(A) The agency will invite the parents’ child to attend.
(B) One of the purposes of the meeting will be to consider the postsecondary goals and needed transition services for the student.
(4) The parents have the right to invite to the IEP team meeting individuals whom the parents believe to have knowledge or special expertise
about their child.
(e)(1) An agency may conduct an IEP team meeting without parental participation if the agency, despite repeated attempts, has been unable to
contact the parent or to convince the parent to participate.
(2) If an agency conducts an IEP team meeting without parental participation, the agency shall have a record of the attempts that the agency
made to contact the parent to provide notice of the meeting and to secure the parent's participation. The record shall include at least two of
the following:
(A) Detailed records of telephone calls made or attempted, including the date, time, and person making the calls and the results of the calls;
(B) detailed records of visits made to the parent's home or homes, including the date, time, and person making the visit and the results of
the visit;
(C) copies of correspondence sent to the parent and any responses received; and
(D) detailed records of any other method attempted to contact the parent and the results of that attempt.
H. RIGHTS FOR PARENTS OF GIFTED STUDENTS
The State statute also includes the category of giftedness. In the State statute and regulations, the term "exceptional
children" includes children who are gifted and children with disabilities. Special education services are not
compulsory for children who are gifted. Therefore, parents of gifted children may choose to accept whatever special
education services are proposed by the IEP team. However, schools are required to provide the services specified in
an IEP once the parent gives consent. Accordingly, parents of, and children with giftedness (who do not also have a
disability) have the same rights as parents of, and children with disabilities, with the following exceptions:
•
There are no special education protections for students who are gifted under the discipline provisions
(K.A.R. 91-40-34(c));
•
Preschool children under the age of 5 are not eligible for gifted services (K.A.R. 91-40-1(ddd));
•
Students who are gifted do not have the same considerations for least restrictive environment (LRE) as
students with disabilities (K.A.R. 91-4-1(ll)), but the IEP Team must make placement decisions based on
their individual needs (K.A.R. 91-40-21(c)(2));
•
Students who are gifted are not eligible for
all of the related services (See Management Information System
Data Dictionary,
www.kansped.org
)
•
The Kansas Alternate Assessment (KAA) and Kansas Assessment of Multiple Measures (KAMM) are not
available to students who are gifted;
•
Extended school year services are not provided to students who are gifted (K.A.R. 91-40-1(y));
•
Students in JJA or DOC facilities do not receive gifted services (K.A.R. 91-40-5); and
•
Requirements for secondary transition (K.A.R. 91-40-1(uuu)); and summary of performance (K.S.A. 72-
986(m)) are
not applicable to gifted students.
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I. EDUCATION ADVOCATES
An education advocate (referred to as "surrogate parents" in Federal law) is appointed to act on behalf of the child
when parents are unknown, unavailable, or parental rights have been severed. The State Special Education for
Exceptional Children Act gives the Kansas State Board of Education (KSBE) the authority to appoint education
advocates to act on behalf of the child, if parents are unknown, unavailable, or parental rights have been severed.
The State statute defines education advocate as “a person appointed by the state board [of education] in accordance
with the provisions of section 13 [K.S.A. 38-1513a], and amendments thereto. A person appointed as an education
advocate for a child shall not be: (1) An employee of the agency which is required by law to provide special education
or related services for the child; (2) an employee of the state board, the department, or any agency which is
directly involved in providing educational services for the child; or (3) any person having a professional or
personal interest which would conflict with the interests of the child” (K.S.A. 72-962(o)).
In Kansas, a foster parent must receive the required training and be appointed by the State Board of Education as an
education advocate to act as a parent in making educational decisions for a child. In other circumstances when a
judge orders someone to serve as the child's legal education decision maker the district must follow the judge's
orders. Documentation from the court should be retained in the student's file.
State Law:
K.S.A. 38-1513a
When the court has granted legal custody of a child in a hearing under the Kansas code for care of children to an agency, association or
individual, the custodian or an agent designated by the custodian shall have authority to make educational decisions for the child if the parents of
the child are unknown or unavailable. When the custodian of the child is the secretary, and the parents of the child are unknown or unavailable,
and the child appears to be an exceptional child who requires special education, the secretary shall immediately notify the state board of
education, or a designee of the state board, and the school district in which the child is residing that the child is in need of an education advocate.
As soon as possible after notification by the secretary of the need by a child for an education advocate, the state board of education, or its
designee, shall appoint an education advocate for the child.
K.S.A. 72-962
(o) ‘‘Education advocate’’ means a person appointed by the state board in accordance with the provisions of section 13, and amendments thereto.
A person appointed as an education advocate for a child shall not be: (1) An employee of the agency which is required by law to provide special
education or related services for the child; (2) an employee of the state board, the department, or any agency which is directly involved in
providing educational services for the child; or (3) any person having a professional or personal interest which would conflict with the interests of
the child.
1.
Assigning Education Advocates
KSDE and the Kansas Department of Social and Rehabilitation Services (SRS) have developed a system for
assigning education advocates when necessary. Details of the education advocate system are given in K.A.R. 91-40-24.
KSDE contracts with Families Together (the State's Parent Information and Training Center) to:
•
provide training for potential education advocates,
•
receive referrals for students who need an education advocate,
•
match an education advocate to the student,
•
notify KSDE to appoint the education advocate, and
•
provide support for education advocates.
The appointment of an education advocate is to be made within 3 business days of receiving a request for an
appointment. The school or agency making the request will be notified by KSDE of the name, address, and the
telephone number of the person appointed to serve as the child’s educational advocate. KSDE sends the formal
letter of appointment to the education advocate, with a copy to the special education director, the building principal at
the student’s school, and the student’s primary SRS, DOC, or JJA caseworker. KSDE and Families Together retain
copies of the appointment letter.
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Education advocates are appointed for students ages 3 to 18 who are in the custody of SRS, the Department of
Corrections (DOC), or the Juvenile Justice Authority (JJA); are receiving special education services or need an
evaluation to determine eligibility for services; and whose parents are unknown or unavailable, whose parent rights
have been severed, or whose parents have a court order of “no contact” against them. Like all other students with
disabilities students in SRS, JJA or DOC custody at age 18 become their own educational decision makers, unless a
judge has determined that they are not capable of doing so and has appointed a guardian.
For a 2-year-old who is transitioning from Infant-Toddler Services, if parents are unknown or unavailable, an
education advocate may be appointed to provide consent to conduct a Part B evaluation, attend an IEP meeting, and be
involved in other special education actions required.
For more information about obtaining an education advocate, contact Families Together, 800-264-6343 or
785-233-4777, or the Kansas State Department of Education, 800-203-9462.
2. School District Responsibilities
Sometimes it is difficult to determine the situation with parents. There is a difference between “unavailable” and
“unwilling.” An uncooperative parent is not unavailable. A parent who can be located by mail, personal visits, or
phone is not unavailable, even though s/he does not respond to the school’s attempts to involve him or her in the
student’s education. If a parent has not responded to a request for consent to conduct a reevaluation, or to
make a substantial or material change in the IEP; under Federal and State regulations, the district may conduct
the reevaluation without parent consent as long as they have documentation of required attempts made and the
parent did not respond. (See Chapter 7, Reevaluation.)
If a parent is in jail, s/he is technically not "unknown or unavailable". The parent’s participation may be obtained by
telephone and consent may be obtained through contact by mail, unless not feasible to do so. If, as a result of a
court order, the parent cannot have any contact with the child, the school should request an education advocate.
The special education director may access the Foster Care Database to determine whether the child is in the custody of SRS
or JJA. Each time a child in SRS or JJA custody experiences a change in out of home placement, data is entered into the
database to assist in tracking the child’s records. When a child receiving special education services is in the Foster Care
Database, the school should enter information into the education section of the database. The school must obtain written
consent from the parent before entering such information because other State agencies, such as SRS, JJA, KSDE and
Kansas Medical Agency (KMA) also have access to this data base (See Appendix A, Figure 1- 8, SRS Memo)
3. Social and Rehabilitation Services Responsibilities
The Kansas Statute at K.S.A. 38-1513a of the SRS Children and Family Services Commission states that when SRS
staff determine that a child in SRS custody appears to be a student with an exceptionality who may require special
education services and the parents are unknown, unavailable, or have their rights terminated, SRS must:
a. Document in the case record that the parents are unknown, unavailable, or their rights have been
terminated; and
b. Contact Families Together (800-264-6343 or 785-233-4777) within three business days to request that an
education advocate be appointed.
“Unavailable” means SRS has documented that at least two pieces of certified mail were sent to the parent’s last
known address, and were sent back unclaimed.
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4. Juvenile Justice Authority and Department of Corrections Responsibilities
If a student is in a juvenile correctional facility or an adult correctional facility, the Juvenile Justice Authority (JJA) or
the Department of Corrections (DOC) is obligated to follow the same procedures for appointment of an education
advocate as SRS, as stated above.
A student age 18 or over, who is incarcerated in an adult correctional institution or facility and was not identified as a
child with a disability and did not have an IEP in their educational placement prior to incarceration, is not entitled to
FAPE (K.A.R. 91-40-5(c)(3)). A student previously identified as gifted only is not entitled to receive special education
services while incarcerated.
State Regulation:
K.A.R. 91-40-24. Educational advocates.
(a)
(1)
Before taking any special education action in regard to any child, an agency shall attempt to identify the parents of the child
and the parents' current whereabouts.
(2)
If the parental rights of the parents of an exceptional child have been severed, the secretary of social and rehabilitation
services or the secretary’s designee shall notify the state board or its designee of this fact and request the appointment of an
educational advocate for the child.
(3)
If the identity of the parent or the parent’s current whereabouts cannot be determined, the agency shall take the following
action:
(A)
Request that proceedings be initiated, pursuant to the Kansas code for the care of children, to determine whether the
child is a child in need of care; and
(B)
notify the state board or its designee, within three business days, of the agency’s determination and request the
appointment of an educational advocate for the child.
(b)
Within three business days of receiving a request for the appointment of an educational advocate, the agency making the request shall
be notified by the state board or its designee of the name, address, and telephone number of the person appointed to serve as the
child’s educational advocate.
(c)
Each person appointed as an educational advocate shall meet the following requirements:
(1)
Be at least 18 years of age;
(2)
have completed a training program offered or approved by the state board concerning the powers, duties, and functions of an
educational advocate;
(3)
not be an employee of the state board or any agency that is involved in the education or care of the child; and
(4)
have no interest that conflicts with the interest of any child whom the person represents.
(d)
(1)
A person who is an employee of a nonpublic agency that provides only noneducational care for the child and who meets the
requirements of subsection (c) of this regulation may be appointed as an educational advocate.
(2)
A person who otherwise qualifies to be an educational advocate shall not be considered an employee of an agency solely
because that person is paid by the agency to serve as an educational advocate.
(e)
Any person appointed as an educational advocate shall perform the following duties:
(1)
Assert the child’s rights in the education and decision-making process, including the identification, evaluation, and placement
of the child;
(2)
comply with applicable confidentiality requirements imposed by state and federal law;
(3)
participate in the development of the child’s individualized education program; and
(4)
exercise all the rights given to parents under the special education for exceptional children act.
K.A.R. 91-40-5(c)(3)
(c) State adult correctional facilities.
(3) Provision of FAPE to any person incarcerated in a state correctional institution or facility shall not be required by the secretary of
corrections if the person meets both of the following criteria:
(A) The incarcerated person is at least 18 years of age.
(B) The incarcerated person, in the person’s last educational placement before incarceration, was not identified as a child with a
disability.
J. STUDENT RIGHTS AT AGE 18
On or before the student’s 17
th
birthday, the IEP of the student must contain a statement that the student has been
informed that at age 18, students have attained the age of majority in Kansas and all parent rights transfer to the
student (K.S.A. 72-987(c)(9)). Thus, at age 18, students become their own educational decision makers. (This
Handbook will refer to the student who is age 18 or over as an adult student.)
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When a student reaches the age of majority, school personnel must provide all required special education notices to
both the student and to the parents and obtain informed consent for specified special education actions from the
student (same requirements as for parents). Parents are not entitled to attend the IEP meeting, however, either the
school or the student may, but are not required to, invite the parents to attend IEP meetings as persons who are
knowledgeable about the student. When a court has judged a student to be unable to fulfill these responsibilities,
schools must provide Prior Written Notice and obtain informed consent from the person whom the court has
appointed as the legal guardian. Schools may provide parents information about other options and resources about
this topic.
Federal regulations and Kansas law (K.S.A. 72-989; 34 C.F.R. 300.520 and 34 C.F.R. 300.625) provide specific
requirements for school personnel regarding this issue.
State Statute:
K.S.A. 72-987(c)(9).
(c) The IEP for each exceptional child shall include:
(9) beginning at least one year before the child reaches the age of majority under state law, a statement that the child has been informed of the
child’s rights, if any, that will transfer to the child on reaching the age of majority as provided in K.S.A. 72-989, and amendments thereto.
72-989. Rights of child with disability upon reaching 18 years of age.
When a person who has been determined to be a child with a disability
reaches the age of 18, except for such a person who has been determined to be incompetent under state law:
(a) An agency shall provide to both the person and to the person's parents any notice required by this act;
(b) all other rights accorded to parents under this act transfer to the person;
(c) the agency shall notify the person and the parents of the transfer of rights; and
(d) all rights accorded to parents under this act transfer to the person if incarcerated in an adult or juvenile federal, state or local correctional
institution.
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QUESTIONS AND ANSWERS ABOUT PARENT RIGHTS
1. Who can give consent for a student’s educational program?
Regarding parents and/or legal educational decision makers must be given Prior Written Notice and request for
consent whenever a school proposes to initiate or change (or refuses to initiate or change) the identification,
evaluation, placement or educational services of a child with an exceptionality. Parents may then provide or
withhold consent for decisions regarding these matters. Consent from one parent is sufficient, even if the other
parent refuses to consent. If an Education advocate is officially appointed, that is the person who will work with
the school in planning and monitoring the student’s school program, and who may grant or withhold consent just
as parents may. See the chart on page 1-5 within this chapter for further information about determining who
may grant consent for educational decisions.
Unless a judicial order specifies to the contrary, a school shall recognize the biological or adoptive parent of an
exceptional child who is a minor as the educational decision maker for the child, even if other persons meet the
definition of a parent for the child.
2. What if there is disagreement about an action that requires consent?
Parents and other legal educational decision makers should clarify the issues about which there is no
disagreement. Those actions, or portions of the IEP, should be implemented without delay.
For the area of disagreement requiring consent, there are two options: (1) Mediation as an impartial proceeding
whereby a mediator works with the parents and the school representative to reach consensus and develop a
written agreement, and (2) a due process hearing in which a hearing officer makes the decision. In mediation,
both parties must first agree that they want to mediate. There is no cost to the parents or to the school for
mediation. In due process, either the parents or the school may request a hearing. Also see Chapter 10,
Mediation and Chapter 12, Due Process Hearings.
3. What are the school's responsibilities for notice and consent with divorced parents?
If parents are divorced, regardless of which parent has primary custody, the school must provide notice to both
parents, even if only one parent has the right to consent, unless a court order precludes this from happening.
This applies to all special education notice requirements including notice of an IEP meeting. If the school is only
aware of one parent's address, the school must make reasonable efforts to locate the other parent in order to
provide notice.
Consent from one parent is sufficient. In the event that the school receives responses from both parents, with
one providing consent and the other denying consent, the school is deemed to have received consent and must
fulfill its obligation to provide FAPE to the student. The parent who denies consent has the right to request
mediation or file for due process.
4. What are the qualifications of an education advocate?
Requirements for education advocates are established in K.A.R. 91-40-24(c). Education advocates must:
•
be 18 years or older,
•
attend the Families Together training for education advocates so they have knowledge and skills to be sure
the student is adequately represented, and
•
provide three references for appointment as an education advocate.
Education advocates cannot be:
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•
employees of the agency required by law to provide special education services,
•
employees of KSDE or any agency directly involved in providing care or educational services for the
student, or
•
people with a professional or personal interest that would conflict with the student’s best interests.
Professionals not providing care or educational services to the student, retired professionals such as teachers,
school administrators, school psychologists, counselors, and social workers, and local community volunteers may
be education advocates, if they receive the training from Families Together.
5. May an education advocate be assigned to represent a student over the age of 18?
In Kansas, students from age 18 through 21 years have attained the age of majority, and so they become their
own advocates. If the student is a ward of the State and determined to be a Child in Need of Care by SRS, s/he
would have an education advocate appointed at age 18, or before if necessary. If the student has been judged
to be unable to represent himself/herself, a guardian may be appointed by the court.
6. Are education advocates appointed for a student who is gifted?
Yes. In Kansas, services for students who are gifted are provided through the special education system in public
schools. An Education advocate would be appointed in the same way for students ages 5 to 18 who are gifted.
7. May parents revoke consent to a special education service, but not the goals for that
service; or in reverse, consent to goals, but not the service necessary to implement
the goals?
Parents provide consent only for placement and services, including supplemental aids and services, in the IEP.
They do not have the option of consenting to the individual annual goals in the IEP. Parents should consider
which individual services they wish to consent to; the annual goals are the method for measuring the progress
made by the provision of the service. Parents may revoke consent for some services and not others, but need to
realize that when they revoke consent for a service, they have also eliminated the goal(s) that would have
measured progress for that service.
8. What is the difference between "Prior Written Notice" and "10-Day IEP Notice?"
"Prior Written Notice" is provided to the parents before the school proposes or refuses to initiate or change the
identification, evaluation, or educational placement of the child or the provision of special education and related
services (FAPE) to the child. Each Prior Written Notice must contain the information required in 34 C.F.R.
300.503(b). This Notice is to ensure that parents are fully informed about any action that the school is proposing
and is provided with each request for consent for a special education action. If a change in identification,
educational placement, educational services, or the need for more evaluation information is determined to be
needed by the IEP team, then the Prior Written Notice and, if required, request for consent for the specific
action(s) would be given to parents before that action could take place.
"The 10-Day IEP Notice" is given to parents at least 10 calendar days before the IEP meeting to develop, review
and/or revise the IEP. The 10-day IEP notice is to ensure that the parent has an opportunity to participate in the
IEP meeting as well as any meeting with respect to the identification, evaluation, placement and special
education and related services for the child. The notice must indicate the purpose, time, and location of the
meeting and who will be in attendance; and inform the parents that may invite others who have knowledge or
special expertise about the child.
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9. If a student who is identified as gifted, and does not also have a disability, is
incarcerated in a juvenile or adult correctional facility, will they be eligible to receive
special education services?
No. Students who are incarcerated in a juvenile or adult correctional facility are not eligible to receive gifted
services even if they were identified prior to incarceration.
10. What if the biological parent and another individual meet the definition of parent?
Must the school seek consent from the biological parent or can they accept consent
from the other qualified individual?
If there is more than one party qualified to act as a parent, and the biological or adoptive parents attempt to act
as the parent, the biological or adoptive parents must be presumed to be the parents and legal decision makers,
unless they do not have legal authority
to make educational decisions for the child.
11. What obligation does a school have to allow parents or other non-school personnel to
observe or video tape a child in the educational setting?
Neither federal or state laws or regulations give parents the right to observe their children in class. A district
may, however, give a parent permission to observe a child in class if doing so would not disrupt school activities
and would help the district and the parent work together to develop an appropriate IEP. Many districts have
policies that define the conditions under which parents and others may observe children in school and for
videotaping children in the classroom.
12. If a parent calls the school and verbally revokes their consent for special education
and related services and tells the school they want services stopped immediately,
what should the school do?
The parent must revoke consent for special education and related services in writing. The school should inform
the parent that it must continue providing services until they receive written notice that consent is being revoked.
This could be in the form of a letter or a signature on the document where the parent provided informed consent
for the child’s current services.
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CHAPTER 2
SCREENING AND GENERAL EDUCATION INTERVENTION
(CHILD FIND)
INTRODUCTION
Schools must have policies and procedures in effect to ensure that all children with exceptionalities (those who have
disabilities and those who are gifted) and who are in need of special education and related services are identified,
located, and evaluated. This included children who attend public
or private schools, which are home schooled; are
highly mobile including migrant and homeless, or are wards of the State. The child find requirement for schools
applies to children ages birth through 21. Child find in Kansas involves a screening process for children from birth to
age 5, and a general education intervention process for children from kindergarten through age 21. Schools in
conjunction with parents use these processes to locate, evaluate, and identify children who may need special
education and related services. Children in need of special education services should be identified as young as
possible, and also as soon as possible after the concern is noted. This includes children who are suspected of
having a disability even though they are advancing from grade to grade (K.A.R. 91-40-7(a); 34 C.F.R. 300.111(a)(c)).
The earliest possible identification of educational or behavioral concerns will diminish the impact of the concerns on
the child’s education.
As an agency, the Kansas State Department of Education (KSDE) encourages the use of a multi-tiered system of
support for all children, encompassing school-wide support for both academic and behavioral competency. This is
further emphasized in Kansas special education regulations which require the use of general education interventions
(GEI), prior to referring any child in kindergarten through grade 12 for an initial evaluation. GEI requires schools to
have data-based documentation of the general education interventions and strategies implemented for each child.
Some schools conduct GEI through a school-wide approach of providing multi-tiered levels of intervention to support
children to achieve more successfully. In recent years, this kind of a systemic approach has been referred to as
Response to Intervention or RtI. The practices utilized in RtI are based on providing high-quality instruction and
intervention matched to child need; monitoring progress frequently to make decisions about change in instruction or
goals; and applying child response data to important educational decisions (Response to Intervention: Policy
Considerations and implementation. National Association of State Directors of Special Education, 2005). In Kansas,
the set of principles and practices found in the literature with regard to RtI is encompassed within Kansas’ Multi-tiered
System of Support (MTSS).
Other schools accomplish conducting GEI through an individual child problem solving approach, often referred to as
student improvement teams (SIT, SAT, TAT, Care Team, etc.). The individual problem solving approach to GEI is
consistent with past guidance provided by the state.
Either approach (school-wide or individual problem-solving) may be used as schools seek to provide early
intervention for children in need of additional supports to be successful.
This chapter includes information on the following topics:
A. Public Notice for Child Find
B. Screening for Children from Birth to Age 5
C. General Education Intervention for Children from Kindergarten through Age 21
D. Data Collection and Documentation for General Education Intervention
E. Referral for Initial Evaluation
F. Early Intervening Services
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A. PUBLIC NOTICE FOR CHILD FIND
The first step in the child find process is to provide information to the public concerning the availability of special
education services for exceptional children, including procedures for accessing these services. This public notice is
usually provided at the beginning of the school year and must be repeated annually. Copies of the information from
child find activities are kept on file as documentation for implementing policies and procedures K.A.R. 91-40-7(d)).
The public notice may be provided through a variety of methods. Informational materials could be distributed to all
schools in the area, including private schools, other agencies and to professionals who would likely encounter
children with a possible need for special education. Schools may publish yearly notices in local newspapers, provide
pamphlets, furnish information on the Internet, broadcast announcements on radio or television and provide
information at parent-teacher conferences. Suggested methods to accomplish public notice include:
•
Newspaper articles or ads,
•
Radio, TV, or cable announcements,
•
Community newspaper notices
•
School handbook and calendar
•
Letters to all patrons in the district
•
Post in child care programs
•
Post in health departments or doctors offices
•
Post in grocery stores, department stores and
other public places
Additional information about public notice as it relates to confidentiality requirements is included in Chapter 9. An
example of a public notice about child find is included in Appendix A, Figure 2-1.
B. SCREENING FOR CHILDREN FROM BIRTH TO AGE 5
Kansas regulations (K.A.R. 91-40-7(b)) require each school district to implement screening procedures that meet the
following requirements:
•
For children younger than five years of age, observations, instruments, measures, and techniques that
disclose any potential disabilities or developmental delays that indicate a need for evaluation, including
hearing and vision screening
•
Implement procedures ensuring the early identification and assessment of disabilities in children.
Screening must include observations, instruments, measures, and techniques that address potential developmental
delays or disabilities in the areas of communication, cognitive development, social-emotional development, self-
help/adaptive behavior, and/or physical development. This requirement also extends to hearing and vision
screenings, which must be available on an equal basis to all children in public and all private schools within the
district's boundaries (K.S.A. 72-1204 and 72-5204 et seq.).
If the results of the screening indicate a potential
developmental delay or disability, the screening team makes the referral for initial evaluation.
Mass screening of all children is not required, but screening is to be available for any child for whom there is a
concern about an area of development including communication, cognitive development, social-emotional
development, self-help/adaptive behavior, and/or physical development; and hearing and vision. It is recommended
that a child should not have to wait more than 30 calendar days for a screening. Young children's needs must be
identified as soon as possible, so that early intervention may be provided. Screening is considered to be a quick look
at the developmental areas to assist in determining whether a child should be referred for an initial evaluation. There
are screening procedures that require minimal staff and time to complete. Screening should be equally available to
all children in public and private schools within the school district's boundaries. For preschool age children, the
district of residence of each preschool child is responsible for child find (locate, evaluate and identify) even though
the child may be attending a preschool or other child care program outside the district of residence
.
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The Part B child find requirements begin at birth, therefore they overlap with the Part C child find requirements.
Schools should work with their local Part C Infant-Toddler Network for child find activities for children from birth
through 2 years to ensure that all children have access to screening in a timely manner. Each local Infant-Toddler
Network is to have a local interagency coordinating council and this is a way for the local school district and the local
Infant-Toddler Network to develop collaborative efforts for child find in their community.
Children who are transitioning from the Part C Infant and Toddler program are not required to participate in a Part B
screening process at age 3. For children receiving Part C services who may need an initial evaluation to determine
eligibility for Part B special education services, the Part C Infant-Toddler Program may make a referral to the school
district. The referral is to be made at least 90 calendar days prior to the child’s third birthday and according to the
school’s policy for making a referral for an initial evaluation.
Schools must maintain documentation on results of screening and must ensure that the collection and use of data
under the child find requirements are subject to confidentiality requirements under FERPA (K.A.R. 91-40-7(e); K.A.R.
91-40-50).
State Regulations:
K.A.R. 91-40-7. Child find.
(a) Each board shall adopt and implement policies and procedures to identify, locate, and evaluate all children with exceptionalities
residing in its jurisdiction, including children with exceptionalities who meet any of the following criteria:
(1) Attend private schools;
(2) are highly mobile, including migrant and homeless children; or
(3) are suspected of being children with disabilities even though they are advancing from grade to grade.
(b) Each board’s policies and procedures under this regulation shall include age-appropriate screening procedures that meet the
following requirements:
(1) For children younger than five years of age, observations, instruments, measures, and techniques that disclose any potential
disabilities or developmental delays that indicate a need for evaluation, including hearing and vision screening;
(2) for children from ages five through 21, observations, instruments, measures, and techniques that disclose any potential
exceptionality and indicate a need for evaluation, including hearing and vision screening as required by state law; and
(3) implementation of procedures ensuring the early identification and assessment of disabilities in children.
(d) Each board, at least annually, shall provide information to the public concerning the availability of special education services for
exceptional children, including child find activities conducted by the board.
(e) Each agency shall ensure that the collection and use of data under this regulation are subject to the confidentiality requirements of
K.A.R. 91-40-50
and amendments thereto.
C. GENERAL EDUCATION INTERVENTION (GEI) FOR CHILDREN FROM KINDERGARTEN
THROUGH AGE 21
For children in kindergarten through age 21, Kansas screening laws require that schools utilize observations,
instruments, measures, and techniques that disclose any potential exceptionality and indicate a need for evaluation,
including hearing and vision screening, and age-appropriate assessments for school-aged children designed to
identify possible physical, intellectual, social or emotional, language, or perceptual differences. Screening must be
available for children in public schools, private schools, or for children who are homeschooled. For children of school
age attending a private elementary or secondary school, the district in which the private school is located is
responsible for child find for children who are residents and non-residents of the district who may be attending the
private school (K.S.A. 72-966(a)(1); 34 C.F.R. 300.131(a)).
In Kansas, this screening is conducted, in part, through the required implementation of general education intervention
(GEI). The purpose of GEI is to intervene early for any child who is presenting academic or behavioral concerns.
This early intervention leads to a better understanding of the supports children need in order to be successful in the
general education curriculum and school setting. Additionally, the data collected during GEI assists school personnel
in determining which children may be children with potential exceptionalities who need to move into initial evaluation
for special education. Collaboration between special education and general education staff is an important part of
the general education intervention process. Both special education and general education personnel must be
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involved in this building-level, school-wide activity (K.A.R. 91-40-7(c), however, some services provided by special
education staff may not be fully reimbursable.
State Regulation:
K.A.R. 91-40-7(c)
(c) Any board may refer a child who is enrolled in public school for an evaluation if one of the following conditions is met:
(1) School personnel have data-based documentation which indicates that general education interventions and strategies would be
inadequate to address the areas of concern for the child.
(2). School personnel have data-based documentation that indicates that prior to, or as a part of the referral, the following were met;
A.
The child was provided appropriate instruction in regular education settings that was delivered by qualified personnel;
B.
The child’s academic achievement was repeatedly assessed at reasonable intervals which reflected formal assessment of
the child’s progress during instruction;
C.
The assessment results were provided to the child’s parents; and
D.
The assessment results indicate an evaluation is appropriate.
1.
Conducting GEI
The No Child Left Behind Act (NCLB) and IDEA place a strong emphasis on using scientifically research-based
interventions, as appropriate, for children in general education. NCLB defines scientifically research-based as
“research that involves the application of rigorous, systemic, and objective procedures to obtain reliable and valid
knowledge relevant to education activities and programs” (Federal Register, August 14, 2006, p. 46683). These
practices and programs apply to all schools and all children in general education. Kansas’ requirement to implement
GEI supports this emphasis on providing the intensity of instructional support in proportion to the presenting needs of
children through methods of analyzing child data, implementing scientifically research-based interventions, and
monitoring child progress. (See Appendix A, Figure 2-2, General Education Interventions (GEI))
The GEI process should continue until a successful intervention is determined, when it is evident that the successful
intervention requires resources beyond those available in general education, and/or when the team suspects the
child is a child with an exceptionality (disability or giftedness). At any time during GEI, the team responsible for
planning and implementing the interventions has three decisions that may be made:
a) Continue the intervention and monitor child progress
b) Change or modify the intervention and monitor child progress
c) Change or modify the intervention, monitor child progress, and carry the child into initial evaluation.
It should be made clear here that the process of continually designing and re-designing supports for children is one
that does not end until the child is successful. Even when the decision has been made to move from GEI into an
initial evaluation, the intervention process should not stop. Rather, it becomes part of the evaluation process.
Kansas regulations provide additional information which describes when a school may refer a child for an initial
evaluation:
a) School personnel have data-based documentation which indicates that general education interventions and
strategies would be inadequate to address the areas of concern for the child.
b) School personnel have data-based documentation that indicates that prior to, or as a part of the referral, the
following were met:
i.
the child was provided appropriate instruction in regular education settings that was delivered by
qualified personnel;
ii. the child’s academic achievement was repeatedly assessed at reasonable intervals which reflected
formal assessment of the child’s progress during instruction;
iii. the assessment results were provided to the child’s parents; and
iv. the assessment results indicate an evaluation is appropriate. (K.A.R. 91-40-7(c))
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As indicated previously, GEI may be carried out through a school-wide approach of providing a multi-tiered system of
scientifically, research-based
interventions for all children (e.g. MTSS) or through an individual child problem solving
approach. Regardless of the approach used, the focus should be on designing supports for children who need
additional assistance in order to be successful in the general education curriculum and environment.
The following provides a brief comparison of the two approaches (i.e. school-wide multi-tiered system of supports or
individual child problem-solving) that may be used to conduct GEI, and ultimately, yield the data that may be used to
make the decisions as to whether or not a child should be moved on to an initial evaluation.
2.
School-Wide Multi-Tiered System of Supports Approach to GEI
The law allows schools to use a process that assesses a child’s response to scientific, research-based intervention to
determine whether the child is making sufficient progress to meet age or State-approved grade-level standards.
Kansas encourages schools to use a school-wide, multi-tiered model of support for all children including both
academic and behavioral concerns. In Kansas, this is supported through the Multi-tiered System of Support (MTSS)
which includes both School-Wide Academic Supports (SWAS) and School-Wide Positive Behavior Supports
(SWPBS). The following briefly explains the multi-tiered aspect of the school-wide approach.
Tier 1:
All children receive a core instructional program that uses a scientifically validated curriculum that is provided
for all students. Schools choose curricula that have evidence of producing adequate levels of achievement (i.e.,
research-based) and instruction is differentiated within the core to meet a broad range of student needs. Therefore,
interventions are provided via the general curriculum. Universal screening of all children to monitor progress and to
identify children who may need additional support is conducted. Approximately eighty percent of children in the
school will be successful in the general curriculum.
Tier 2:
Those children who do not respond to the core instructional procedures will receive targeted group
interventions in addition to core instruction. More frequent measures of progress monitoring are used to collect child
progress data. Approximately fifteen percent of children in the school will need targeted (supplemental) support.
Tier 3:
A few children receive intensive, individualized interventions. These may be in addition to, or instead of the
supports provided in Tier 1 and Tier 2 depending on the needs of the child. Interventions will be more intensive and
delivered in more substantial blocks of time. Approximately five percent of children in the school will need this kind
of intensive support.
The graphic below depicts a school-wide approach of providing a multi-tiered system of intervention.
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Within a school-wide multi-tiered system such as that depicted above, children will receive GEI as a part of the
system in place for all students. Data collected at each tier should guide school personnel as to the next steps to
take based on the child’s response to interventions tried. At least by the time a child is ready to access the more
intensive supports of Tier 3, the school should employ the use of individualized problem solving to design the
intensive individualized support the child will receive as well as a plan to monitor the child’s progress and document
the child’s response to the scientifically research-based interventions. The approach of individual child problem-
solving is therefore a component of the larger school-wide system, or it may stand alone as a method to conduct GEI
as outlined below.
3.
Individual Problem-solving Approach to GEI
This process is typically carried out through building level problem-solving teams. These teams function with the
intent to provide support to any child who may be experiencing difficulty (academic or behavior) and to work to
improve the overall achievement of all children in the school. Typically, these teams facilitate the problem-solving
process which results in the development of an intervention plan which documents the child’s area of concern, the
interventions implemented, the data reflecting the child’s response to the intervention, and the recommendations as a
result of the child’s response to the intervention.
The problem-solving conducted by these teams may vary, however, there should be at least four basic steps
common to the process used by schools. All steps should include parent involvement – not just informing parents,
but including them in decision-making whenever possible. Additionally, parents are to be provided with copies of the
child data collected as interventions are tried and monitored for children.
The following outlines the four basic steps of problem solving and indicates briefly what happens at each step.
STEP 1. Problem Identification
a. Precisely define the problem
b. Measure the skill or behavior in the natural setting to establish baseline performance.
c. Estimate the severity of the problem (use age norms or compare to peers)
d. Establish expectations for the child
STEP 2. Problem Analysis
a. Analyze antecedent, situational, and consequent conditions
b. Use ICEL components (instruction, curriculum, environment, learner) to analyze the problem
c. Collect additional data as needed to understand the cause of the problem.
STEP 3. Develop and Implement an Intervention Plan
a. Formulate a plan that uses scientific research based interventions designed to target the cause of the
presenting problem.
b. Establish intervention goals
c. Develop a plan for monitoring progress which specifies the child data to be collected and the schedule
for collecting it. Decide how the data will be displayed (e.g. chart/graph) to facilitate evaluation.
d. Implement the plan with treatment integrity and frequent monitoring of progress
STEP 4. Evaluate and Revise Plan
a. Review progress monitoring data to determine if enough progress has been made by repeating Step 1.
b. If expectations have not been met, repeat Step 2 to further analyze the problem.
c. Revise current intervention or select a new intervention including components of Step 3
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D. DATA COLLECTION AND DOCUMENTATION FOR GENERAL EDUCATION INTERVENTIONS
GEI has been a requirement in Kansas since 2000, however, with the most recent reauthorization of IDEA and the
subsequent Kansas regulations, the requirements for GEI have been strengthened. Before a child may be referred
for a special education evaluation, school personnel are now required to have
data-based documentation that:
(1) general education interventions and strategies would be inadequate to address the areas of concern for the
child,
or
(2) the child was provided appropriate instruction in regular education settings that was delivered by qualified
personnel;
and
(3) the child’s academic achievement was repeatedly assessed at reasonable intervals which reflected formal
assessment of the child’s progress during instruction. (K.A.R. 91-40-7(c))
In either case, there must be data-based documentation that provides a basis for determining that a special
education evaluation is warranted.
It should rare that documentation would indicate that GEI and strategies would be inadequate to address the areas of
concern for the child. This would most likely occur in an instance where a child with an obvious disability has for whatever
reason not been identified previously. Another example might be for a child who has recently sustained a Traumatic Brain
Injury. Of course in situations such as these it would be inappropriate to delay further evaluation to determine the child’s
need for special education. In these cases, the data used for documentation that GEI would be inadequate to address
the needs of the child might come from medical records, previous school records, observations, parent and teacher
reports, etc. However, in cases such as this, even though it is appropriate to move directly to evaluation, it is
recommended that GEI and strategies occur as part of the child’s special education evaluation so that the team may
collect data to determine what the best instructional approach for the child might be.
In most cases, school personnel will be documenting data from the GEI and strategies that have been tried. Schools
must have data-based documentation that: (1) appropriate instruction was provided to the child, (2) the child was
provided appropriate instruction was delivered by qualified personnel in regular education settings; (3) the child’s
academic achievement was repeatedly assessed at reasonable intervals which reflected formal assessment of the
child’s progress during instruction; and (4) the instructional strategies used and the student-centered data collected.
The data to document that appropriate instruction was provided to the child may include evidence that the school’s
curriculum has a solid research base and that it contains, for example in reading, the essential components of
reading instruction as defined in the No Child Left Behind Act.
Additionally, data could include the extent to which instruction has been delivered by qualified teachers. Other data
may include evidence that the child has regularly attended school in order to access instruction. The data to
document the educational interventions and strategies that have been implemented may include records such as
intervention plans that indicate the interventions and strategies selected and implemented for a given child. The
requirement to provide data-based documentation of the repeated assessments of child progress during instruction
(i.e. progress monitoring) is perhaps the most important of all. Progress monitoring data is used to evaluate the
effectiveness of the intervention; to determine the intensity of interventions and resources needed to support child
learning; and, provides a basis for school personnel to make decisions during intervention. Documentation of
progress monitoring may include charts/graphs or records of other systematic data collection. This documentation
must also include evidence parents were provided with the results of the assessment of child progress and that those
results indicate that an evaluation is appropriate.
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Additional documentation is required for schools that utilize a school-wide multi-tiered system of support approach to
providing GEI. In addition to the data described above, the school must document that the child’s parents were
notified about:
•
The State’s policies regarding the amount and nature of child performance data that would be collected and
the general education services that would be provided;
•
Strategies for increasing the child’s rate of learning; and
•
The parents’ right to request an evaluation (K.A.R. 91-40-10(f)(2); 34 CFE 300.311(a)(7)(ii)).
(See Appendix A, Figure 2-3, State Policy on MTSS for Parents)
Although this documentation is required only if the child goes on for an initial evaluation and the child is subsequently
placed as having a learning disability, schools should be aware of this so that it may be attended to. It is
recommended to any school that utilizes a school-wide approach that they publish information about their system.
This not only provides a way for the school to discuss its multi-tiered system of support for all children, but also
insures that documentation requirements may be met should some children go on for evaluation and placement as
having a learning disability. Some ways to accomplish this additional requirement might include providing information
to parents through methods such as:
•
School or student handbooks
•
Annual child find notifications
•
Brochures about the school’s RtI system
In addition to the broad dissemination required for all schools using an school-wide multi-tiered system of supports
approach, schools may also choose to establish guidelines in their school system regarding how and when
information will be shared more specifically with parents of children receiving supplemental support (i.e., Tier 2, Tier
3, etc.). It is important that parents be invited to fully participate in the intervention process for their child. This
practice of involving parents from the beginning when additional interventions are necessary provides a way for the
school and the parent to establish a foundation upon which to face future decisions that may arise.
State Regulations:
K.A.R. 91-40-10
(f) if the child has participated in a process that assesses the child's response to scientific, research-based intervention, the evaluation report
shall also address the following matters:
(1) The instructional strategies used and the student-centered data collected; and
(2) the documentation that the child's parents were notified about the following:
(A) The state’s policies regarding the amount and nature of student performance data that would be collected and the general
education services that would be provided;
(B) strategies for increasing the child’s rate of learning; and
(C) the parents’ right to request an evaluation.
E. REFERRAL FOR INITIAL EVALUATION
Screening and GEI are child find activities, and either process may result in the determination that an initial
evaluation for special education is needed. Most decisions to move forward into initial evaluation will come as a
result of these processes. However, there are instances when requests for evaluation may be made by parents or by
adult students. The following describes the procedures to be used when such requests occur:
1.
Referral from Parents: Parents have requested an evaluation. The request may be oral or written. The
school may set a policy as to how a referral is to be made. The school must respond to the request within a
reasonable period of time, which has been interpreted by the KSDE as being no more than 15 school days.
The building principal or person designated to respond to parent requests for evaluations, should explain to
the parents the following:
(a) They have the right to go directly to an evaluation; and
(b) A GEI process that precedes an initial evaluation is available to assist in determining the specific
concerns and needs of their child. This includes the right of the parents to participate in the GEI
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process. Parents may elect to have their child participate in GEI prior to the evaluation, or, if the
parents request the initial evaluation be conducted without waiting for general education interventions to
conclude, the general education intervention process may be conducted as part of the initial evaluation.
(c) The school may refuse to conduct the evaluation. The Prior Written Notice would explain why the
school refuses to conduct the evaluation.
2.
Self-referral from an adult student: A student 18 years of age or older has requested an evaluation. The
school must respond to the request within a reasonable period of time which has been interpreted by the
KSDE as being no more than 15 school days. The building principal, or person designated to respond to
student requests for evaluations, should explain the following to the student:
(a) S/He has the right to go directly to an evaluation; and
(b) A GEI process that precedes an initial evaluation is available to assist in determining the specific
concerns and needs of the student. This includes the right of the student to participate in the GEI
process. The student may elect to participate in GEI and not pursue the evaluation, or, if the student
request the initial evaluation be conducted without waiting for general education interventions to
conclude, the general education intervention process may be conducted as part of the initial evaluation.
(c) The school may refuse to conduct the evaluation. The Prior Written Notice would explain why the
school refuses to conduct the evaluation.
Regardless of how the decision to move forward with an initial evaluation is made, it is crucial that the school have a
process which will insure that all data collected prior to the evaluation (i.e., data collected as part of screening, or
GEI) is provided to the evaluation team. This insures the evaluation team has a basis for understanding what
additional data may be need to be collected as the initial evaluation process goes forward. Chapter 3 details all of
the procedures and requirements that must be met at the time the child moves into the initial evaluation.
F. EARLY INTERVENING SERVICES
The federal office of education states that the use of some Part B funds for early intervening services has the
potential to benefit special education, as well as the education of other children, by reducing academic and
behavioral problems in the regular education environment and reducing the number of referrals to special education
that could have been avoided by relatively simple regular education interventions (Federal Register, August 14, 2006,
pp. 46626-46627). These early intervening services are not the same as “early intervention” services under the Part
C, Infant-Toddler program, or child find activities, and are not available for preschool children ages 3 and 4, or 5 year
olds not in kindergarten.
The district may carry out a variety of activities including:
1. Professional development (which may be provided by entities other than the district) for teachers and other
school staff to enable such personnel to deliver scientifically-based academic and behavioral interventions,
including scientifically-based literacy instruction, and, where appropriate, instruction on the use of adaptive
and instructional software; and
2. Providing educational and behavioral evaluations, services and supports, including scientifically based
literacy instruction.
For additional information on utilizing Part B funds for early intervening services in Kansas Statute 72-965 and
Appendix D to Federal Regulations, August 14, 2006.
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State Statute:
K.S.A. 72-965
(c) (1) Each board may use up to 15% of the amount it receives each year under the federal law to develop and implement
coordinated, early intervening services for students in kindergarten through grade 12, with a particular emphasis on
students in kindergarten through grade 3, who have not been identified as needing special education or related services but
who appear to need additional academic and behavioral support to succeed in a general education environment.
(2) In implementing coordinated, early intervening services under this subsection, a board may carry out activities that include:
(A) Providing professional development for teachers and other school staff to enable such personnel to deliver
scientifically based academic instruction and behavioral interventions, including scientifically based literacy
instruction and, where appropriate, instruction on the use of adaptive and instructional software; and
(B) providing educational and behavioral evaluations, services and supports, including scientifically based literacy
instruction.
(3) Each board that develops and maintains coordinated, early intervening services under this subsection shall annually report to
the department:
(A) The number of students served under this subsection; and
(B) the number of students served under this subsection who subsequently receive special education and related services
under this title during the 2-year period preceding each report.
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QUESTIONS AND ANSWERS ABOUT SCREENING
AND GENERAL EDUCATION INTERVENTION (CHILD FIND)
1. Who is responsible for child find
?
KSDE has policies and procedures in place to ensure that all children with exceptionalities residing in the State,
including children with exceptionalities attending public or private schools, are home schooled; are highly mobile,
including migrant and homeless; or are wards of the State, and who are in need of special education and related
services are identified, located, and evaluated. Local school districts are required to conduct ongoing public
notice, screening, general education interventions, and evaluation to ensure that Kansas children from birth to
age 5 with disabilities, and children from kindergarten through age 21 with exceptionalities are identified
appropriately. For children of school age attending a private elementary or secondary school, the district in
which the private school is located is responsible for child find for children who are residents and non-residents
of the district who may be attending the private school. For preschoolers, the school district where the child
resides is responsible for child find, even if the child attends preschool or child care in another district. This
responsibility to conduct child find efforts for children from birth through age 2 is shared with the Part C Infant-
Toddler program.
2. May special education staff participate in the general education intervention process,
without jeopardizing their special education funding?
Questions often arise about who can work with a student to provide what type of support at what point in the GEI
process and how that fits with funding restrictions. It is the responsibility of both general and special educators
to carry out GEI. Further, because child find is required by special education law and GEI is Kansas’ method of
conducting child find for school age children, it is expected that special educators will, in part, support carrying
out GEI. This may include special educators providing such things as assisting in collecting student data,
participating in the analyses of data to determine next steps, and the provision of interventions, however, there
are parameters with regard to funding to be attended to. Those parameters are outlined in the Special
Education Reimbursement Guide for State Categorical Aid (See
www.kansped.org ).
3. How does an intervention plan developed during general education interventions
differ from other plans?
The general education intervention plan contains information that documents a student’s area(s) of concern, the
scientific, research-based intervention(s) to be tried, the data to be collected to monitor the effectiveness of the
intervention(s), and the impact of the intervention(s). It should include data that demonstrate that the child was
provided appropriate instruction in general education settings, delivered by qualified personnel; and data-based
documentation of repeated assessments of achievement at reasonable intervals, reflecting formal assessment of
student progress during instruction. (See additional details about specific documentation in Section D of this
chapter.) Additionally, it also provides documentation of the student’s progress in the general education
curriculum and documents the extent of the involvement of special education resources in developing,
implementing, and monitoring the intervention(s). This information becomes part of the data used to determine
eligibility for special education if the student is referred for an initial evaluation. The general education
intervention plan is to be provided to the child’s parents but parental consent is not required.
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4. What is the timeline for the general education intervention process?
There is no rule of thumb for a timeline. The area(s) of concern and the nature of the interventions attempted
will be the determining factors. The team will develop a plan that includes a timeline appropriate for each
student. If it appears that the interventions involve intense or sustained resources, or if the team suspects the
child may have an exceptionality, the team must make a referral for an initial evaluation.
5. Are there situations when the general education intervention process for children K-
12 would not be used?
Usually, the general education intervention process occurs prior to a student being referred for an initial
evaluation. However, under some circumstances, it would not be necessary to begin with the general education
intervention process before referring the student for an initial evaluation. This would most likely occur in an
instance where a student with an obvious disability has not been identified previously. Another example might
be for a student who has recently sustained a Traumatic Brain Injury. Of course in situations such as these it
would be inappropriate to delay further evaluation to determine the student’s need for special education. In
these kinds of cases, the data used for documentation that GEI would be inadequate to address the needs of the
student might come from medical records, previous school records, observations, parent and teacher reports,
etc. However, in cases such as this, even though it is appropriate to move directly to evaluation, it is
recommended that GEI and strategies occur as part of the student’s special education evaluation so that the
team may collect data to determine what the best instructional approach for the student might be.
6. What happens to the information gathered about the child after the child find
activities have been conducted?
If either the screening or general education intervention process is used to make a referral for an initial
evaluation, the information may become part of the data used to determine eligibility during the initial evaluation
process. However, screening information may not be the only
information used to determine eligibility. Thus, it
becomes part of the student’s record, regardless of whether the student is eligible or not. Likewise, even if the
screening or general education intervention process did not result in a referral for an initial evaluation, the
information would be retained for documentation in the event that future issues arise. For example, if a student
is later suspended or expelled and the parents assert that the student should have been receiving special
education services because s/he has a disability, this information would be very helpful for the school to have.
What decisions were made in the past, and upon what basis? These records might avert potential lawsuits.
Because the screening information contains personally identifiable information about the child, it is confidential
and must be kept in a secure location, according to FERPA requirements. See Chapter 9 for additional details.
7. At what point does the screening of a school age child through GEI become an
evaluation for special education which signals the protections of procedural
safeguards and due process?
Federal requirements indicate that the screening of a student to determine appropriate instructional strategies for
curriculum implementation shall not be considered to be an evaluation for eligibility for special education and
related services (34 C.F.R. 300.302). Further explanation in comments to the federal regulations indicates that
screening refers to a process that a teacher or specialist uses to determine appropriate instructional strategies.
The comments go on to describe screening as typically being a relatively simple and quick process that is used
to determine strategies to more effectively teach children. This would include examples of such things as
universal screening and progress monitoring tools (e.g. DIBELS, etc.) that yield information teachers may use to
more appropriately select interventions tailored to a student’s area of academic need, observations of children in
various environments from which analyses of behavior patterns may occur in order to direct staff to appropriate
intervention selection, and diagnostic tools which assist school personnel in a deeper understanding of the
student’s presenting concern so that more effective interventions may be selected. It should be made very clear
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here that the latitude given by this regulation is NOT to be interpreted as a way to circumvent other regulations
pertaining to evaluation. The difference between screening and evaluation is the intent
of the activities. If the
intent of the activities is to determine instructional strategies, that constitutes screening. It is clear in the
regulation and subsequent comments that the ONLY activities that may be considered screening are those
activities which result directly in information to be used solely for the purpose of designing instructional
strategies. At any point that the intent changes to seek to determine if the student is a child with an
exceptionality or if the student is in need of special education, that is
evaluation and all due process protections
come into play. At that point, parents must be contacted to seek consent for initial evaluation.
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CHAPTER 3
INITIAL EVALUATION AND ELIGIBILITY
INTRODUCTION
As discussed in Chapter 2, the Kansas child find process is intended to identify children who may be in need of
special education services. Child find includes early childhood screening for young children from birth to age 5, and
general education interventions (GEI) for children enrolled in kindergarten through 12
th
grade. Information obtained
from screening and general education interventions will assist teams in making decisions about referrals for initial
evaluation. An appraisal of the extent of the presenting concern, the effectiveness of interventions tried, and the
degree to which the interventions require substantial resources are important to consider when deciding whether a
child should be referred for possible special education services, and are essential in planning and conducting the
initial evaluation after a referral has been made. When teams conducting general education interventions begin to
question whether the child might be a child with an exceptionality, or when the team begins to question whether the
child might need special education and related services, then a referral for an initial evaluation needs to be
considered.
An initial evaluation involves the use of a variety of assessment tools and strategies to gather relevant functional,
developmental and academic information to assist in determining if the child is eligible for special education. A two-
pronged test for eligibility: (1) whether the child is a child with an exceptionality (disability or giftedness); and (2) by
reason thereof, has a need for special education and related services, has driven eligibility decisions for many years.
However, it is clear more than ever in the law that evaluations must also determine the present levels of academic
achievement and functional performance (related developmental needs) of the child (K.S.A. 72-986(b)(1); K.A.R. 91-
40-8(a)(c)(2); 34 C.F.R. 300.305(a)(2)(i)(ii)(iii)). This shifts the focus of the initial evaluation from access to services
to what the child needs to enable him or her to learn effectively and to participate and progress in the general
education curriculum.
This chapter includes information on the required elements of the process to conduct an initial evaluation and
determine eligibility, and also suggests ways to synthesize the team process at the building level. The initial
evaluation process begins when a referral for initial evaluation is made and applies to all children beginning at age 3.
The following topics related to initial evaluation are discussed within this chapter:
A. Referral for Initial Evaluation
B. Prior Written Notice and Request for Consent
C. The Evaluation Team
D. Timeline for Conducting the Initial Evaluation
E. Conducting the Evaluation
F. Eligibility Determination and Documentation
G. Prior Written Notice for Identification
H. Independent Educational Evaluation
Figure 3-1
INITIAL EVALUATION
REFERRAL Received from Screening,
General Education Intervention Process
or Parent Request
PRIOR WRITTEN NOTICE provided
and CONSENT Obtained
IEP DEVELOPED AND IMPLEMENTED
If the Child is Found Eligible
CHILD NOT ELIGIBLE
Other intervention plan developed
ELIGIBILITY REPORT
Provided to Parents
PARENT RIGHTS
Provided at time of referral
EVALUATION / REEVALUATION
Conducted
ELIGIBILITY
Determined by Team
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A. REFERRAL FOR INITIAL EVALUATION
Referrals for initial evaluation may come from a variety of sources. These include:
Early Childhood Screening
Part C Infant-Toddler Program
General Education Intervention Team (individual problem-solving team)
Parents
Self-referral by adult student
A referral for an initial evaluation is made whenever it is suspected that a child may be a child with an exceptionality.
For a preschool child the referral may be a result of screening described in 91-40-7(b), or from a Part C Infant-
Toddler program. A school age child would participate in general education interventions (GEI) prior to the referral.
As a result of GEI, the school would have data-based documentation of repeated assessments of achievement at
reasonable intervals, that indicate the instruction and educational interventions and strategies presented to the child
in the general education setting were not adequate and indicated an evaluation for special education is appropriate
(K.A.R. 91-40-7(b)(c); 34 C.F.R. 300.309(c)(1)). A parent or adult student may request an evaluation at any time.
Upon referral for an initial evaluation, regardless of the source, the first action the school must take is to provide the
parents, or the adult student, a copy of the Parent Rights Notice (procedural safeguards) available to them (K.S.A.
72-988(e); 34 C.F.R. 300.503). (See Appendix A, Figure 1-2, Parent Rights Notice, or
www.kansped.org .)
State Statute:
K.S.A. 72-988(e)
(e) A list of the rights available to the parents of exceptional children shall be given to the parents only one time each school year, except a
copy also shall be given to the parents: (A) Upon initial referral or parental request for evaluation; (B) upon request of a parent; and (C)
upon the initial filing of a complaint under subsection (b)(4).
State Regulations:
K.A.R. 91-40-7
(b) Each board’s policies and procedures under this regulation shall include age-appropriate screening procedures that meet the following
requirements:
(1) For children younger than five years of age, observations, instruments, measures, and techniques that disclose any potential
disabilities or developmental delays that indicate a need for evaluation, including hearing and vision screening;
(2) for children from ages five through 21, observations, instruments, measures, and techniques that disclose any potential
exceptionality and indicate a need for evaluation, including hearing and vision screening as required by state law; and
(3) implementation of procedures ensuring the early identification and assessment of disabilities in children.
(c) Any board may refer a child who is enrolled in public school for an evaluation if one of the following conditions is met:
(A) (1) School personnel have data-based documentation indicating that general education interventions and strategies
would be inadequate to address the areas of concern for the child.
(2) School personnel have data-based documentation indicating that before the referral or as a part of the referral, all of the following
conditions were met:
(A) The child was provided with appropriate instruction in regular education settings that was delivered by qualified personnel.
(B) The child's academic achievement was repeatedly assessed at reasonable intervals that reflected formal assessment of the student's
progress during instruction.
(C) The assessment results were provided to the child's parent.
B PRIOR WRITTEN NOTICE AND REQUEST FOR CONSENT
Whenever a child has been referred for an evaluation, the school must provide Prior Written Notice to the parents
that describe any evaluation procedures the school proposes to conduct (K.S.A. 72-988(b)(2); 34 C.F.R. 300.304(a)).
In addition, there are standard components of content the notice must also contain. The purpose of providing notice
to the parents is so they understand what action the public agency is proposing (in this case, to conduct an initial
evaluation) and the basis used for determining the action is necessary. The Prior Written Notice must include:
1) A description of the action proposed by the agency,
2) An explanation of why the agency proposes the action,
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3) A description of each evaluation procedure, assessment, record, or report the agency used as a basis for
the proposed action,
4) A statement that the parents have protection under the procedural safeguards and how a copy of the
procedural safeguards can be obtained,
5) Sources for parents to contact to obtain assistance in understanding their procedural safeguards, and
6) A description of other options considered and the reasons why those options were rejected; and,
7) A description of other factors that is relevant to the agency’s proposal. (K.S.A. 72-990; 34 C.F.R.
300.503(b))
Additionally, if the notice is to propose to conduct an initial evaluation, the notice must describe any evaluation
procedures that the school proposes to conduct (K.S.A. 72-986(b); K.A.R. 91-40-27(b); 34 C.F.R. 300.304(a)(1)).
(See Appendix A, Figure 1-5a, Prior Written Notice for Evaluation or Reevaluation form or
www.kansped.org
.)
The notice must be written in language understandable to the general public and provided in the native language of
the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so. If the native
language or other mode of communication of the parent is not a written language, the LEA must take steps to ensure
that the notice is translated orally or by other means to the parent in his or her native language or other mode of
communication, that the parent understands the content of the notice. The school must have written evidence that
this has been done (K.A.R. 91-40-26(b)(c); 34 C.F.R. 300.503(c)).
1.
Preparing the Prior Written Notice
After the school receives the referral for an initial evaluation the school staff may engage in preparatory activities to
determine the content of the proposal to conduct an initial evaluation. The school staff will consider information
provided in the referral or in the parent request for an evaluation and in the child’s file including information collected
during general education interventions. Based on this information the school staff will determine whether they will
propose to conduct an evaluation and what procedures the evaluation will include (such as existing or new
assessment tools and strategies). The staff will then prepare the Prior Written Notice of proposed action to provide to
the parent. In some cases, the school staff may determine that there is not enough evidence to support conducting
an initial evaluation and would, therefore, refuse to conduct the initial evaluation.
When preparing the prior written notice, the team must plan which assessments and other evaluation measures may
be needed to produce the data needed to meet the requirements of eligibility determination (K.A.R. 91-40-8(e)(1); 34
C.F.R. 300.305(c)). Every evaluation should be approached and designed individually based on the specific concerns
of the child to be evaluated. Thoughtful planning is required to insure that the team will use appropriate tools to
collect the data needed, while eliminating time spent collecting information that is either unnecessary or overly time-
consuming for no clear purpose. It would be inappropriate to use the same battery of assessments for all children or
to rely on any single tool to conduct an evaluation.
To insure that enough data will be collected as part of the evaluation, teams are reminded of the importance of using
a variety of assessment tools and strategies to collect relevant functional, developmental, and academic information
about the child. There are also requirements that each child be observed in the child’s learning environment which
will also need to be included on the Prior Written Notice. We must insure that each evaluation is sufficiently
comprehensive to identify all of the child’s special education and related services needs. All appropriate domains
should be considered via review of screening and/or GEI data. If potential educationally related deficits are
suggested by screening, then the evaluation team must provide in-depth assessment in the domain. If screening
suggests adequate functioning, then in-depth assessment may be wasteful and irrelevant. In addition to these
considerations, teams are reminded that they must provide information to rule out any exclusionary criteria when
making eligibility decisions, and therefore should plan to collect any needed information related to issues considered
in the exclusionary criteria.
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The first activity the evaluation team should conduct is a review of existing data. The evaluation team needs to
consider all data that is currently available including evaluations and information provided by the parents, current
classroom-based, local, or State assessments, and classroom-based observations, and observations by teachers
and related service providers; and the child’s response to scientifically, research-based interventions, if implemented.
The review of existing data, as part of the evaluation, may be conducted without a meeting and without consent from
the parents (K.A.R. 91-40-8(c)(d); K.A.R. 91-40-27(e); 34 C.F.R. 300.305(b); 34 C.F.R. 300.300(d)(1)).
The purpose of reviewing existing data is to identify what additional data, if any, are needed to determine:
a.
if the child is a child with an exceptionality;
b. whether the child needs special education and related services;
c. the educational needs of the child;
d. the present levels of academic achievement and functional performance (related developmental needs) of
the child; and
e. whether any additions or modifications to the special education and related services are needed to enable
the child to meet the measurable goals set out in the IEP and to participate, as appropriate, in the general
education curriculum. (K.A.R. 91-40-8(c); K.S.A. 72-986(i)(2); 34 C.F.R. 300.305(a)(2))
At the time of the review of existing data the team should also consider whether any additional data will need to be
collected to insure that when the evaluation team meets to determine eligibility, they will have a clear understanding
of any potential exclusionary factors. We must not determine a child to be a child with an exceptionality if the
determinant factor is lack of instruction in reading, including the essential components of reading instruction; lack of
appropriate instruction in math; or limited English proficiency (K.A.R. 91-40-10(c); 34 C.F.R. 300.306(b)), therefore it
is important to plan for each evaluation to yield information to allow these determinations to occur.
In addition to the exclusionary factors discussed above, there are additional requirements to consider when
evaluating a child suspected of having a specific learning disability. To ensure that underachievement in a child
suspected of having a specific learning disability is not due to lack of appropriate instruction in reading or math, the
group must consider, as part of the evaluation:
(1) Data that demonstrate that prior to, or as a part of, the referral process, the child was provided appropriate
instruction in regular education settings, delivered by qualified personnel; and
(2) Data-based documentation of repeated assessments of achievement at reasonable intervals, reflecting
formal assessment of child progress during instruction, which was provided to the child’s parents. (K.A.R.
91-40-7(c)(3); 34 C.F.R. 300.309(b))
Appropriate instruction in reading includes the essential components of reading instruction as defined in section
1208(3) of NCLB as phonemic awareness, phonics, vocabulary development, reading fluency including oral reading
skills, and reading comprehension strategies. Often this information will have been collected before a child is
referred for an initial evaluation; however, it is important that the team learns whether or not the data exists and plan
to collect it as part of the evaluation if it has not been collected prior to the evaluation.
After the team has reviewed the existing data, there must be a determination of what data, if any, will be collected
during the evaluation. The Prior Written Notice will be completed to reflect the data that will be collected as part of
the evaluation. (See Appendix A, Figure 1-5a or 1-5b, Prior Written Notice and Request for Consent for Evaluation)
a.
Requirements if No Additional Data are Needed
If the team has determined that no additional data are needed to determine whether the child is a child with an
exceptionality, and to determine the child’s educational needs, the school must notify the parents
(1) of that determination and the reasons for it; and
(2) the right of the parents to request an assessment to determine whether the child is a child with an
exceptionality, and to determine the educational needs of the child (K.A.R. 91-40-8(e)).
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The school district is not required to conduct the assessment described in (2) above unless requested to do so by the
child’s parents. In addition, if the parents request an assessment of their child, the school district may refuse to do
so, but it must provide the parents with Prior Written Notice of the refusal to conduct the assessment and the reasons
for the refusal. The parents may request mediation or due process if they want the assessment conducted. (See
Appendix A, Figure1-5a, 1-5b, Prior Written Notice and Consent for Initial Evaluation, and 3-3, No Additional Data
Needed form)
b.
Requirements if Additional Data are Needed
If the team has determined that additional data are needed, the team should plan who will collect it and plan to insure
all data will be collected within the evaluation timeline. The procedures to be used to collect the data should be
described on the Prior Written Notice for the initial evaluation and provided to the parents for their consent.
State Statute:
K.S.A. 72-986
(i) As part of an initial evaluation, if appropriate, and as part of any reevaluation under this section, the IEP team and other
qualified professionals, as appropriate, shall:
(1) Review existing evaluation data on the child, including evaluations and information provided by the parents of the child, current
classroom-based assessments and observations, and teacher and related services providers’
observations; and
(2) on the basis of that review, and input from the child’s parents, identify what additional data, if any, are needed to determine: (A)
Whether the child is an exceptional child and the educational needs of the child, or in the case of a reevaluation of a child, whether the
child continues to be an exceptional child and the current educational needs of the child; (B) the present levels of academic and related
needs of the child; (C) whether the child needs special education and related services; or in the case of a reevaluation of a child, whether
the child continues to need special education and related services; and (D) 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.
Kansas Regulations:
K.A.R. 91-40-8(c)(d)(e)
(c) As a part of an initial evaluation, if appropriate, and as a part of any reevaluation, each agency shall ensure that members of an appropriate
IEP team for the child and other qualified professionals, as appropriate, comply with the following requirements:
(1) The evaluation team shall review existing evaluation data on the child, including the following information:
(B) current classroom-based, local, and state assessments and classroom-based observations; and
(A) Evaluations and information provided by the parent of the child;
(C) observations by teachers and related services providers.
(2) On the basis of that review and input from the child’s parent, the evaluation team shall identify what additional data, if any, is
needed to determine the following matters:
(A) Whether the child has a particular category of exceptionality or, in the case of a reevaluation of a child, whether the child continues to
have such an exceptionality;
(B) what the present levels of academic achievement and educational and related developmental needs of the child are;
(C) whether the child needs special education and related services, or in the case of a reevaluation of a child, whether the child continues to
need special education and related services; and
(D) whether, in the case of a reevaluation of the child, any additions or modifications to the special education and related services currently
being provided to the child 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.
(d) The team described in subsection (c) may conduct its review without a meeting.
(e) (1) If the team described in subsection (c) determines that additional data is required to make any of the determinations specified in paragraph
(2) of subsection (c), the agency, after giving proper written notice to the parent and obtaining parental consent, shall administer those tests
and evaluations that are appropriate to produce the needed data.
K.A.R. 91-40-10(c)
(c) An evaluation team shall not determine a child to be an exceptional child if the determinant factor for that eligibility determination is the
child’s lack of appropriate instruction in reading or mathematics or limited English proficiency, and if the child does not otherwise qualify as a
child with an exceptionality.
K.A.R. 91-40-27(e)
(e) An agency shall not be required to obtain parental consent before taking either of the following actions:
(1) Reviewing existing data as part of an evaluation, reevaluation, or functional behavioral assessment; or
(2) administering a test or other evaluation that is administered to all children, unless before administration of that test or evaluation,
consent is required of the parents of all children.
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2. Request for Consent
The school must obtain informed consent from the parent of the child before conducting the evaluation (K.A.R. 91-40-
27(a)(1); 34 C.F.R. 300.300(a)). In determining that informed consent is obtained, the following must be insured
(K.A.R. 91-40-1(l); 34 C.F.R. 300.9):
a. The parent has been fully informed of all information relevant to the activity for which consent is being
sought, in his or her native language, or other mode of communication.
b. The parent understands and agrees in writing to the carrying out of the activity for which his or her consent
is sought, and the consent describes that activity and lists the records (if any) that will be released and to
whom.
c. The parent understands that the granting of consent is voluntary on the part of the parent and may be
revoked at any time.
d. If a parent revokes consent, that revocation is not retroactive (i.e., it does not negate an action that has
occurred after the consent was given and before the consent was revoked).
Parental consent for initial evaluation must not be construed as consent for initial provision of special education and
related services.
3.
Failure to Respond or to Provide Consent
The school must make reasonable attempts to obtain consent from the parents to conduct the initial evaluation.
Reasonable attempts are defined as at least 2 contacts by 2 different methods (phone calls, letters, visits, email, etc.)
and documentation of such attempts should be kept including detailed records of telephone calls made or attempted
and the results, copies of written correspondence sent to the parents and their response if any, and visits made to the
parents home or place of employment, and the results, if any, from the parents (K.A.R. 91-40-27(g); K.A.R. 91-40-
17(e)(2); 34 C.F.R. 300.322(d)(1)).
If the parent does not provide (refuses) consent or fails to respond to a request to provide consent for an initial
evaluation, the school may, but is not required to, pursue the initial evaluation by utilizing mediation or by requesting
a due process hearing. The school does not violate its obligation for (provisions of FAPE) Child Find or for
conducting an initial evaluation if it declines to pursue the evaluation (K.A.R. 91-40-27(f)(1)(3); 34 C.F.R.
300.300(a)(3)). Additionally, under the disciplinary protections, the school would not be deemed to have knowledge
of the child’s disability if the parent has not allowed an evaluation or refused services; or the child has been evaluated
and determined not to have a disability (K.S.A. 72-994(c)).
The district is required to locate, identify, and evaluate children who are home schooled, but not required to provide
services unless the child is enrolled in the public school. If the parent of a child who is home schooled or voluntarily
placed in a private school by the parents does not provide consent for the initial evaluation, or the parent fails to
respond to a request to provide consent, the school can NOT use mediation or due process procedures to obtain
consent. In this case the school is not required to consider the child as eligible for services and does not violate the
FAPE requirement (K.A.R. 91-40-27(f)(2); 34 C.F.R. 300.300(d)(4)).
Kansas Statute:
K.S.A. 72-986
(b) An agency shall provide notice to the parents of a child that describes any evaluation procedures such agency proposes to conduct. In
conducting the evaluation, the agency shall:
(1) Use a variety of assessment tools and strategies to gather relevant functional, developmental and academic information, including
information provided by the parent, that may assist in determining whether the child is an exceptional child and the content of the
child’s individualized education program, including information related to enabling the child to be involved, and progress, in the
general education curriculum or, for preschool children, to participate in appropriate activities;
(2) not use any single measure or assessment as the sole criterion for determining whether a child is an exceptional child or determining
an appropriate educational program for the child;
(3) use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical
or developmental factors; and
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(4) in determining whether a child has a specific learning disability, not be required to take into consideration whether the child has a
severe discrepancy between achievement and intellectual ability, and may use a process that determines if the child responds to
scientific, research-based intervention as part of the child’s evaluation.
K.S.A. 72-988
(b) The parents of exceptional children shall have the right to:
(2) written prior notice in accordance with K.S.A. 72-990, and amendments thereto, whenever an agency:
(A) Proposes to initiate or change; or
(B) refuses to initiate or change, the identification, evaluation, or educational placement of the child or the provision of a free
appropriate public education to the child;
(e) A list of the rights available to the parents of exceptional children shall be given to the parents only one time each school year, except a
copy also shall be given to the parents:
(A) Upon initial referral or parental request for evaluation;
(B) upon request of a parent; and
(C) upon the initial filing of a complaint under subsection (b)(4).
K.S.A. 72-990. Notice of parental rights; contents.
The notice required by subsection (b)(2) of K.S.A. 72-988, and amendments thereto, shall include:
(a) A description of the action proposed or refused by the agency;
(b) an explanation of why the agency proposes or refuses to take the action;
(c) a description of other options that the agency or IEP team considered and the reasons those options were rejected;
(d) a description of each evaluation procedure, assessment, record, or report the agency used as a basis for the proposed or refused action;
(e) a description of any other factors that are relevant to the agency’s proposal or refusal;
(f) a statement that the parents have protection under the procedural safeguards of this act and, if the notice is not an initial referral for
evaluation, the means by which a copy of the procedural safeguards can be obtained; and
(g) sources for parents to contact to obtain assistance in understanding
the provisions of the federal law and this act.
K.S.A. 72-994
. School district knowledge that child is child with disability prior to determination, when deemed; subjection of child to
disciplinary action, when; evaluation and placement of child.
(a) A child who has not been determined to be eligible for special education and related services under this act and who has engaged in
behavior that violated any rule or code of conduct of the school district may assert any of the protections provided for in this act if the
school district had knowledge, as determined in accordance with this section, that the child was a child with a disability before the
behavior that precipitated the disciplinary action occurred.
Kansas Regulations:
K.A.R. 91-40-1(l)
(l) "Consent" means all of the following:
(1) A parent has been fully informed of all information relevant to the activity for which consent is sought, in the parent's native
language or other mode of communication.
(2) A parent understands and agrees in writing to the carrying out of the activity for which consent is sought, and the consent describes
that activity and lists the records, if any, that will be released and to whom.
(3) A parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at any time, but if the
parent revokes consent, that the revocation is not retroactive and does not negate an action that has occurred after the consent was given and
before the consent was revoked.
K.A.R. 91-40-17(e)
(e)(1) An agency may conduct an IEP team meeting without parental participation if the agency, despite repeated attempts, has been
unable
to contact the parent or to convince the parent to participate.
(2) If an agency conducts an IEP team meeting without parental participation, the agency shall have a record of the attempts that the
agency made to contact the parent to provide notice of the meeting and to secure the parent's participation. The record shall include at
least two of the following:
(A) Detailed records of telephone calls made or attempted, including the date, time, and person making the calls and the
results of the calls;
(B) detailed records of visits made to the parent's home or homes, including the date, time, and person making the visit and the results
of the visit;
(C) copies of correspondence sent to the parent and any responses receive
(D) detailed records of any other method attempted to contact the parent and the results of that attempt.
K.A.R. 91-40-26. Notice requirements.
(a) In providing any notice to the parents of an exceptional child in accordance with K.S.A. 72-990 and amendments thereto,
regarding action proposed or refused by an agency, the agency shall ensure that the notice includes the following descriptions:
(1) a description of other options the agency considered and the reasons why those options were rejected; and
(2) a description of other factors that are relevant to the agency's proposal or refusal.
(b) The notice shall be
is written in a language understandable to the general public and is provided in the native language of the parent or
other mode of communication used by the parent, unless it is clearly not feasible to do so.
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(c) If the native language or other mode of communication of a parent is not a written language, the agency shall take steps to ensure all of
the following:
(1) The notice is translated orally or by other means to the parent in the parent’s native language or other mode of communication.
(2) The parent understands the content of the notice.
(3) There is written evidence that the requirements of paragraphs (1) and (2) of this subsection have been met.
K.A.R. 91-40-27. Parental consent.
(a) Except as otherwise provided in this regulation, an 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;
(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.
(d) An agency shall not construe parental consent for initial evaluation as parental consent for the initial provision of special education and
related services to an exceptional child.
(e) An agency shall not be required to obtain parental consent before taking either of the following actions:
(1) Reviewing existing data as part of an evaluation, reevaluation, or functional behavioral assessment; or
(2) administering a test or other evaluation that is administered to all children, unless before administration of that test or evaluation,
consent is required of the parents of all children.
(f) (1) If the parent of an exceptional child who is enrolled or is seeking to enroll in a public school does not provide consent for an initial
evaluation or any reevaluation, or for a proposed material change in services or a substantial change in the placement of the parent's child, an
agency may, but is not required to, pursue the evaluation or proposed change by initiating due process or mediation procedures.
(2) If the parent of an exceptional child who is being home schooled or has been placed in a private school by the parent does not
provide consent for an initial evaluation or a reevaluation, or fails to respond to a request to provide consent, an agency may not pursue the
evaluation or reevaluation by initiating mediation or due process procedures.
(3) An agency shall not be in violation of its obligations for identification, evaluation or reevalutation if the agency declines to pursue
an evaluation or reevaluation, because a parent has failed to provide consent for the proposed action.
(4) Each agency shall document its attempts to obtain parental consent for action proposed under this regulation.
(g) An agency shall not be required to obtain parental consent for a reevaluation or a proposed change in services or placement of the child if
the agency has made attempts, as described in K.A.R. 91-40-17(e)(2), to obtain consent but the parents have failed to respond.
(h) An agency shall not use a parent's refusal to consent to an activity or service to deny the parent or child other activities or services offered
by the agency.
C. THE EVALUATION TEAM
Once the consent has been obtained from the parent, a team is formed who will have the responsibility of carrying
out the evaluation process. The membership of the evaluation team are the same as those who would serve on the
child's IEP Team (should the child be found eligible), including the parents. If the child is suspected of having a
specific learning disability the team may include other qualified professionals, as appropriate.
Team members on each evaluation team may differ; however, there are specific members and skills that must be
represented on the team. The make up of this team would include:
•
The parents of the child;
•
Not less than one regular education teacher of the child (if the child is, or may be, participating in the regular
education environment); If the child does not have a regular teacher, a regular classroom teacher qualified
to teach a child of his or her age; or if the child is less than school age, an individual qualified to teach a
child of his or her age;
•
Not less than one special education teacher of the child, or where appropriate, not less than one special
education service provider of the child;
•
A representative of the local education agency who:
o
Is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique
needs of children with exceptionalities,
o
Is knowledgeable about the general education curriculum, and
o
Is knowledgeable about the availability of resources of the public agency;
•
An individual who can interpret the instructional implications of evaluation results;
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Kansas Special Education Process Handbook
•
At least one person qualified to conduct individual diagnostic examinations of children; and
•
At the discretion of the parent or agency, other individuals who have knowledge or special expertise
regarding the child, including related services personnel as appropriate. (K.S.A. 72-962(u); K.A.R. 91-40-
11(a); 34 C.F.R. 300.321; 34 C.F.R. 300.308)
State Statute
K.S.A. 72-962
(u) ‘‘Individualized education program team’’ or ‘‘IEP team’’ means a group of individuals composed of:
(1) The parents of a child;
(2) at least one regular education teacher of the child, if the child is, or may be, participating in the regular education
environment;
(3) at least one special education teacher or, where appropriate, at least one special education provider of the child; (4) a
representative of the agency directly involved in providing educational services for the child who:
(A) Is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of
exceptional children;
(B) is knowledgeable about the general curriculum; and
(C) is knowledgeable about the availability of resources of the agency;
(5) an individual who can interpret the instructional implications of evaluation results;
(6) at the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child,
including related services personnel as appropriate; and
(7) whenever appropriate, the child.
91-40-11. Evaluation for specific learning disability; use of response to intervention process.
(a) If a child is suspected of having a specific learning disability and believed to need special education services because of that
disability, the agency shall ensure that the evaluation of the child is made by the child's parent and a group of qualified professionals,
including the following individuals:
(1)(A) The child's regular education teacher or, if the child does not have a regular education teacher, a regular classroom teacher
qualified to teach a child of the child's age; or
(B) for a child of less than school age, an individual who is qualified to teach a child of the child's age; and
(2) at least one person qualified to conduct individual diagnostic examinations of children, including a school psychologist,
speech-language pathologist, or remedial reading teacher.
D. TIMELINE FOR CONDUCTING THE INITIAL EVALUATION
Kansas has established a 60 school-day timeline consistent with federal regulations (K.A.R. 91-40-8(f); 34 C.F.R.
300.301(c)). The timeline for conducting the initial evaluation starts upon receipt of written parental consent to
conduct the evaluation, and ends with the implementation of an IEP if the child is found eligible for special education
services or completion of the evaluation report if the child is not found eligible for special education services.
For children who transfer from one public agency to another in the same school year, assessments are coordinated
with the child’s prior school, as necessary and as expeditiously as possible, to ensure prompt completion of an
evaluation begun by the prior school (K.S.A. 72-986(c)(4)).
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Figure 3-2
TIMELINE
The initial evaluation is to be completed within the 60-school-day timeline required in K.A.R. 91-40-8(f). There is no
specified timeline for the initial evaluation itself, but several requirements must all be completed within 60 school days
unless an agency can justify the need for a longer period of time or has obtained written parent consent for an
extension of time. (K.A.R. 91-40-16 addresses IEP requirements, and K.A.R. 91-40-17 specifies the IEP Team
participants.)
Preceding the initiation of this timeline, the school provides the parents with their Parent Rights Notice upon referral,
Prior Written Notice for initial evaluation, and Request for Consent.
1. The 60-school-day timeline begins when the agency receives written parent consent to conduct the initial
evaluation (K.A.R. 91-40-8(f)).
2. The initial evaluation is started within a reasonable time.
3. The initial evaluation is completed, and, on the basis of the evaluation data, the team determines eligibility for
special education and related services.
4. The evaluation/eligibility team provides the parents with the Evaluation/Eligibility Report within a reasonable
period of time (K.S.A. 72-986(e)(2); 34 C.F.R. 300.306(a)(2); and FERPA 34 C.F.R. 99.10(b)).
5. The school provides the parents with Prior Written Notice for proposed identification (can be combined with
notice for initial services).
6. The school provides the parents with the Notice of the IEP meeting at least 10 calendar days before the meeting
(K.A.R. 91-40-17(a)(2)). (NOTE: If the team believes that eligibility and IEP development may be discussed at
the same meeting, the IEP Meeting Notice must describe all proposed special education decisions to be
addressed at the meeting.)
7. The IEP Team meets and develops an IEP within 30 calendar days of determination of eligibility (34 C.F.R.
300.323(c)(1) and K.A.R. 91-40-8(h)).
8. The school provides the parents with Prior Written Notice and request for consent for the initial provision of
special education and related services to the child.
9. Services on the IEP are implemented not later than 10 school days after written parent consent for provision of
special education services is granted, unless reasonable justification for a delay can be shown (K.A.R. 91-40-
16(b)(2)).
10. The 60-school-day timeline ends when the IEP is implemented.
Exceptions to the Timeline
There are only three specific instances when an extension of the 60 school-day timeline may be justified:
a. The parent of the child repeatedly fails or refuses to produce the child for the evaluation; or,
b. If a child enrolls in a new district after the evaluation has begun and before the determination of eligibility,
however, the new district is required to make sufficient progress to ensure a prompt completion of the
evaluation, and the parent and the school district must agree to a specific timeline for completion.
c. If the parent and the school agree in writing to extend the timeline. (K.A.R. 91-40-8(f); 34 C.F.R. 300.301(d))
State Statute:
K.S.A. 72-986(c)(4)
(c) An agency shall ensure that:
(4) the assessments of any child who transfers from another agency during the school year are coordinated with the child’s prior
school, as necessary and as expeditiously as possible, to ensure prompt completion of an evaluation begun by the prior school.
State Regulations:
K.A.R. 91-40-8(f)(g)
(f) Unless an agency has obtained written parental consent to an extension of time and except as otherwise provided in subsection (g), the
agency shall complete the following activities within 60 school days of the date the agency receives written parental consent for
evaluation of a child:
(1) Conduct the evaluation of the child;
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(2) conduct a meeting to determine whether the child is an exceptional child and, if so, to develop an IEP for the child. The agency
shall give notice of this meeting to the parent as required by K.A.R. 91-40-17(a); and
(3) implement the child’s IEP in accordance with K.A.R. 91-40-16.
(g) An agency shall not be subject to the time frame prescribed in subsection (f) if either of the following conditions is met:
(1) The parent of the child who is to be evaluated repeatedly fails or refuses to produce the child for the evaluation.
(2) The child enrolls in a different school before the evaluation is completed, and the parent and new school agree to a specific date
by which the evaluation will be completed.
(h)
In complying with subsection (f), each agency shall ensure that an IEP is developed for each exceptional child within 30 days
from the date on which the child is determined to need special education and related services.
K.A.R. 91-40-16(b)
(b) Except as otherwise provided in subsection (c), each agency shall ensure that the following conditions are met:
(1) An IEP is in effect before special education and related services are provided to an exceptional child.
(2) Those services to which the parent has granted written consent as specified by law are implemented not later than 10
school days after parental consent is granted unless reasonable justification for a delay can be shown.
(3) An IEP is in effect for each exceptional child at the beginning of each school year.
(4) The child’s IEP is accessible to each regular education teacher, special education teacher, related service provider, and
other service provider who is responsible for its implementation.
(5) Each teacher and provider described in paragraph (4) of this subsection is informed of the following:
(A) That individual's specific responsibilities related to implementing the child’s IEP; and
(B) the specific accommodations, modifications, and supports that must be provided for the child in accordance with the IEP.
E. CONDUCTING THE EVALUATION
The initial evaluation must include a variety of assessment tools and strategies to gather relevant functional,
developmental and academic information, including information provided by the parent, that may assist in
determining whether the child is an exceptional child, the educational needs of the child, and the content of the child’s
IEP, including information related to enabling the child to be involved, and progress in the general education
curriculum or, for preschool children, to participate in appropriate activities (K.S.A. 72-986(b)(1)). In addition, the
procedures must also lead to the determination of the present levels of academic achievement and functional
performance of the child. The public agency must administer such assessments and other evaluation measures as
may be needed to produce the data to determine:
•
if the child is a child with an exceptionality;
•
whether the child needs special education and related services;
•
the educational needs of the child;
•
the present levels of academic achievement and functional performance (related developmental needs) of
the child; and
•
whether any additions or modifications to the special education and related services are needed to enable
the child to meet the measurable goals set out in the IEP and to participate, as appropriate, in the general
education curriculum. (K.S.A. 72-986(i)(2);K.A.R. 91-40-8(c); 34 C.F.R. 300.305(a)(2))
As stated previously, the data collected is critical not only for the purpose of determining whether a child is eligible for
special education, but also to assist in the development of present levels of academic achievement and functional
performance. Regulations clearly state that the evaluation must result in determining the content of the child’s IEP (if
found eligible) including information related to enabling the child to be involved in and progress in the general
curriculum (or for a preschool child, to participate in appropriate activities) (K.S.A. 72-986(b)(1); 34 C.F.R.
300.304(b)(ii)). However, the evaluation should assist in the development of an instructional plan for the child if the
child is not found to be eligible.
If the team has proposed to conduct the evaluation based only on existing data, the existing data must meet the
requirements of this section for an evaluation.
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1. Evaluation Procedures
During the evaluation process, the child is assessed in all areas related to the suspected exceptionality , including, if
appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance,
communicative status, and motor abilities (K.A.R. 91-40-9(b)(1), K.A.R. 91-40-11(b)(c); 34 C.F.R. 300.304(c)(4)). All
assessment tools and strategies must provide relevant information that directly assists in determining the educational
needs of the child (K.A.R. 91-40-9(a)(9); 34 C.F.R. 300.304(c)(7)).
When conducting an evaluation, no single measure or assessment shall be used as the sole criterion for determining
whether the child is a child with an exceptionality and for determining an appropriate educational program for the
child. When selecting assessment tools to assist in gathering the evaluation data across the five sources of data,
those conducting the evaluation must also ensure the following requirements are met (K.A.R. 91-40-9; 34 C.F.R.
300.304(b)(c)):
•
Use a variety of assessment tools and strategies.
•
Use technically sound instruments that may assess the relative contribution of cognitive and behavioral
factors, in addition to physical or developmental factors.
•
Materials and procedures used to assess a child with limited English proficiency shall be selected and
administered to ensure that they measure the extent to which the child has an exceptionality and needs
special education, rather than measuring the child’s English language skills.
•
Assessments and other evaluation materials are:
o
selected and administered so as not to be discriminatory on a racial or cultural basis;
o
provided and administered in the child’s native language or other mode of communication, and in the
form most likely to yield accurate information on what the child knows and can do academically,
developmentally, and functionally, unless it is clearly not feasible to do so;
o
used for the purposes for which the assessments or measures are valid and reliable;
o
administered by trained and knowledgeable personnel;
o
administered in accordance with instructions provided by the producer of the assessments (Note: if an
assessment is not conducted under standard conditions, a description of the extent to which it varied
from standard conditions (e.g., the qualifications of the person administering the test, or the method of
test administration) must be included in the evaluation report.)
o
tailored to assess specific areas of educational need and not merely those designed to provide a single
general intelligence quotient;
o
selected and administered so as best to ensure that if an assessment is administered to a child with
impaired sensory, manual, or speaking skills, the assessment results accurately reflect the child’s
aptitude or achievement level or whatever other factors the test purports to measure, rather than
reflecting the child’s impaired sensory, manual, or speaking skills (unless those skills are the factors
that the test purports to measure).
The evaluation must be sufficiently comprehensive to identify all of the child’s special education and related services
needs, whether or not commonly linked to the exceptionality category being considered for the child. If the child is
found eligible, this information translates into the present levels of academic achievement and functional performance
(PLAAFPs) and forms the basis for making all the decisions in the IEP. If the child is not found eligible, this
information assists the school in determining other appropriate supports for the child. Ultimately, at the close of an
evaluation, the team should have enough information to support the child whether or not the child is found eligible for
special education. The team should be able to describe where the child is currently performing within the general
education curriculum and standards as well as able to describe how (or if) the child’s unique learning characteristics
are impacting his/her ability to access and make progress in the general education curriculum (or for early childhood,
to participate in appropriate activities). Other issues that are impacting the child’s ability to function in the learning
environment should also be described so that the extent of the child’s needs may be realized.
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There are two methods of evaluation, (i)“the child’s response to scientific, research-based intervention” and (ii)“a
pattern of strengths and weaknesses”, which are outlined in federal regulations with regard to the identification of
students with specific learning disabilities. However, in Kansas, both are also appropriate to be used to determine
eligibility for any of the areas of exceptionality. Below is a brief description of each method of evaluation. (K.S.A. 72-
986(b)(4)
The process based on the child’s response to scientific, research-based intervention ((i) above) is referred to as
Response to Intervention (RtI), and is based on a school-wide multi-tier system of interventions for all students. In
Kansas, the child’s response to scientific, research-based intervention is referred to as a Multi-Tiered System of
Support (MTSS). The evaluation data collected during this process will include results of school-wide screening and
benchmark assessments, information collected during individual child problem-solving, and most importantly, the
results of the child’s response to various types of interventions. Most often, the child’s response to intervention data
will take the form of charts and graphs which reflect individual child growth under various intervention conditions.
Teams analyze and interpret this information to determine whether or not the child is a child with an exceptionality
and to determine and describe the educational needs of the child.
The process based on a child’s pattern of strengths and weaknesses ((ii) above) tends to rely more heavily on the
results of norm-referenced tests and other assessments. Both ability and achievement measures are analyzed to
identify patterns within academic skills and cognitive functions. These are interpreted in combination with other
relevant data to identify the child’s strengths and weaknesses, including the child’s approach to tasks, characteristic
patterns of learning, and difficulties in processing information. A discrepancy between ability and achievement is an
example of one type of information that might be collected to help establish a pattern of strengths and weaknesses.
Teams analyze and interpret this information to determine whether the pattern of strengths and weaknesses is
characteristic of a child with an exceptionality and to determine and describe the child’s educational needs.
State Statute:
K.S.A. 72-986
(b) An agency shall provide notice to the parents of a child that describes any evaluation procedures such agency proposes to
conduct. In conducting the evaluation, the agency shall:
(1) Use a variety of assessment tools and strategies to gather relevant functional
,
developmental and academic information, including
information provided by the parent, that may assist in determining whether the child is an exceptional child and the content of the
child’s individualized education program, including information related to enabling the child to be involved, and progress, in the general
education curriculum or, for preschool children, to participate in appropriate activities;
(2) not use any single measure or assessment as the sole criterion for determining whether a child is an exceptional child or determining
an appropriate educational program for the child;
(3) use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical
or developmental factors; and
(4) in determining whether a child has a specific learning disability, not be required to take into consideration whether the child has a
severe discrepancy between achievement and intellectual ability, and may use a
process that determines if the child responds to scientific, research-based intervention as part of the child’s evaluation.
(c) An agency shall ensure that:
(1) Assessments and other evaluation materials used to assess a child under this section: (A) Are selected and administered so as not to
be discriminatory on a racial or cultural basis; (B) are provided and administered in the language and form most likely to yield accurate
information on what the child knows and is able to do academically, developmentally and functionally, unless it is not feasible to so
provide or administer; (C) are valid and reliable for the specific purpose for which they are used; (D) are administered by trained and
knowledgeable personnel; and (E) are administered in accordance with instructions provided by the producer of such tests;
(2) the child is assessed in all areas of suspected exceptionality;
(3) assessment tools and strategies that provide relevant information
that directly assists persons in determining the educational needs of the child are provided
;
and
(4) the assessments of any child who transfers from another agency during the school year are coordinated with the child’s prior school,
as necessary and as expeditiously as possible, to ensure prompt completion of an evaluation begun by the prior school.
Kansas Regulations:
K.A.R. 91-40-8(c)
(c)As a part of an initial evaluation, if appropriate, and as a part of any reevaluation, each agency shall ensure that members of an appropriate
IEP team for the child and other qualified professionals, as appropriate, comply with the following requirements:
(1) The evaluation team shall review existing evaluation data on the child, including the following information:
(A) Evaluations and information provided by the parent of the child;
(B) current classroom-based, local, and state assessments and classroom-based observations; and
(C) observations by teachers and related services providers.
(2) On the basis of that review and input from the child’s parent, the evaluation team shall identify what additional data, if any,
is needed to determine the following matters:
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(A) Whether the child has a particular category of exceptionality or, in the case of a reevaluation of a child, whether the child
continues to have such an exceptionality;
(B) what the present levels of academic achievement and educational and related developmental needs of the child are;
(C) whether the child needs special education and related services, or in the case of a reevaluation of a child, whether the child
continues to need special education and related services; and
(D) whether, in the case of a reevaluation of the child, any additions or modifications to the special education and related
services currently being provided to the child 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.
K.A.R. 91-40-9
. Evaluation procedures. (a) If assessment instruments are used as a part of the evaluation or reevaluation of an exceptional
child, the agency shall ensure that the following requirements are met:
(1) The assessment instruments or materials shall meet the following criteria:
(A) Be selected and administered so as not to be racially or culturally discriminatory; and
(B) be provided and administered in the child’s native language or other mode of communication and in the form most likely to yield
accurate information on what the child knows and can do academically, developmentally, and functionally, unless this is clearly not
feasible.
(2) Materials and procedures used to assess a child with limited English proficiency shall be selected and administered to ensure that they
measure the extent to which the child has an exceptionality and needs special education, rather than measuring the child’s English
language skills.
(3) A variety of assessment tools and strategies shall be used to gather relevant functional and developmental information about the child,
including information provided by the parent, and information related to enabling the child to be involved and progress in the general
curriculum or, for a preschool child, to participate in appropriate activities that could assist in determining whether the child is an
exceptional child and what the content of the child’s IEP should be.
(4) Any standardized tests that are given to a child shall meet the following criteria:
(A) Have been validated for the specific purpose for which they are used; and
(B) be administered by trained and knowledgeable personnel in accordance with any instructions provided by the producer of the
assessment.
(5) If an assessment is not conducted under standard conditions, a description of the extent to which the assessment varied from standard
conditions shall be included in the evaluation report.
(6) Assessments and other evaluation materials shall include those that are tailored to assess specific areas of educational need and not
merely those that are designed to provide a single general intelligence quotient.
(7) Assessments shall be selected and administered to ensure that if an assessment is administered to a child with impaired sensory,
manual, or speaking skills, the
test results accurately reflect the child’s aptitude or achievement level or whatever other factors the
assessment purports to measure, rather than reflecting the child’s impaired sensory, manual, or speaking skills, unless those skills are the
factors that the assessment purports to measure.
(8) A single procedure shall not be used as the sole criterion for determining whether a child is an exceptional child and for
determining an appropriate educational program for the child.
(9) Each agency shall use assessment tools and strategies that provide relevant information that directly assists persons in
determining the educational needs of the child.
(b) (1) Each child shall be assessed in all areas related to a suspected exceptionality, including, if appropriate, the following:
(A) Health;
(B) vision;
(C) hearing;
(D) social and emotional status;
(E) general intelligence;
(F) academic performance;
(G) communicative status; and
(H) motor abilities.
(2) Each evaluation shall be sufficiently comprehensive to identify all of the child’s special education and related services needs,
whether or not commonly linked to the disability category in which the child has been classified.
(c) If a child is suspected of having a specific learning disability, the agency also shall follow the procedures prescribed in K.A.R. 91-40-11 in
conducting the evaluation of the child.
K.A.R. 91-40-11(b)(c)
(b)(1) A group evaluating a child for a specific learning disability may determine that the child has that disability only if the following
conditions are met:
(A) The child does not achieve adequately for the child's age or meet state-approved grade-level standards, if any, in one or more
of the following areas, when the child is provided with learning experiences and instruction appropriate for the child's age and grade level:
(i) Oral expression;
(ii) listening comprehension;
(iii) written expression;
(iv) basic reading skill;
(v) reading fluency skills;
(vi) reading comprehension;
(vii) mathematics calculation; and
(viii) mathematics problem solving; and
(B)(i) The child does not make sufficient progress to meet age or state-approved grade-level standards in one or more of the areas
identified in paragraph (b)(1)(A) when using a process based on the child's response to scientific, research-based intervention; or
(ii) the child exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, grade-level
standards, or intellectual development that is determined by the group conducting the evaluation to be relevant to the
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identification of a specific learning disability, using appropriate assessments.
(2) A child shall not be determined to be a child with a specific learning disability unless the group elevating the child
determines that its findings under paragraphs (b)(1))(A) and (B) are not primarily the result of any of the following:
(i) A visual, hearing, or motor disability;
(ii) mental retardation;
(iii) emotional disturbance;
(iv) cultural factors;
(v) environmental or economic disadvantage; or
(vi) limited English proficiency.
(c) (1) The group evaluating the child shall ensure that the child is observed in the child's learning environment, including
the regular classroom setting, to document the child's academic performance and behavior in the areas of difficulty.
(2) In conducting the observation, the group may employ either of the following procedures:
(A) Use information from an observation in routine classroom instruction and monitoring of the child's performance that
was done before the child was referred for an evaluation; or
(B) have at least one member of the group conduct an observation of the child's academic performance in the regular
classroom after the child has been referred for an evaluation and parental consent is obtained.
2. Collecting Evaluation Data
Collecting relevant functional, developmental and academic information related to enabling the child to be involved in,
and progress in, the general curriculum (or for a preschool child, to participate in appropriate activities) requires that
data be collected not only about the child, but about the child’s interactions in the curriculum, instruction, and
environment as well. Every evaluation should be approached and designed individually based on the specific
concerns and the selection of assessment tools based on the information needed to answer the eligibility questions.
It would be inappropriate to use the exact same battery of assessments for all children or to rely on any single tool to
conduct an evaluation.
Data must be collected from the five sources referred to in Kansas as G R I O T. GRIOT represents five sources of
data that teams need to be aware of and use as appropriate. The following is a discussion of each of the five
sources of data:
G
– General Education Interventions/Curriculum Progress: During the initial evaluation we must look at two different
“G”s:
(1)
General Education Interventions
: Whether you’re operating within a school system that uses individual
child problem solving (problem-solving teams, SIT, SAT, CARE, etc.) and/or a school-wide multi-tier model
of interventions, when a child is referred for an initial evaluation there will be data on what scientific,
research-based interventions have been used with the child and specific data about the effectiveness and
results of the implementation of the interventions. K.A.R. 91-40-7(c) requires that results of the
interventions provided to the child prior to a referral for an initial evaluation are documented and provided to
the parent. Documentation may be done through a written intervention plan developed by the problem-
solving team, which may include data that the child was provided appropriate instruction in general
education settings, including repeated assessments of achievement at reasonable intervals, reflecting
formal assessment of child progress during instruction. (See Chapter 2, Screening and General Education
Interventions.)
(2)
General Education Curriculum Progress
: An evaluation team needs to understand how the child is
progressing in general education curriculum across settings with the available supports. To do this they
must understand the outcomes of the general education curriculum and how the skills represented in those
outcomes relate to the needs of each child. Are the skills needed, for the child we are working with, different
from the skills that general education children need? Is the instruction required for the child to learn those
skills different? The general education curriculum outcomes and the supports available through general
education are unique to each school. Gaining an understanding of what support is available and the level of
support needed by the child is one of the most important parts of the evaluation.
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R
–
Record Review
: The evaluation team should also include as part of the evaluation a review of records. These
records would include such things as information provided by the parents, current classroom-based
assessments, information from previous services providers, screenings, previous evaluations, reports from other
agencies, portfolios, discipline records, cumulative files, and other records.
I
–
Interview
: It is important to understand the perceptions of significant adults in the child’s life and of the child
himself. Parents, teachers, and the child can all typically provide insight into areas of strengths and needs.
Interviews can also provide information about significant historical events in the child’s life as well as about his
performance in the classroom and other settings.
O
–
Observation
: A district must ensure the child is observed in the child’s learning environment (including the
regular education classroom setting) to document the child’s academic performance and behavior in the areas of
difficulty (K.A.R. 91-40-11(c); 34 C.F.R. 300.310). In the case of a child of less than school age or out of school,
a group member must observe the child in an environment appropriate for a child of that age. If the child is
already in an educational setting the observation should be done in that setting, opposed to bringing them into a
different setting just for observation. These observations could include structured observations, rating scales,
ecological instruments (e.g., EBASS, TIES-II), behavioral interventions, functional analysis of behavior and
instruction, anecdotal, and other observations (conducted by parents, teachers, related services personnel, and
others). The purpose of the observation is to help the evaluation team understand the extent to which the child’s
skills are impacting their ability to participate and progress in a variety of settings. Observations allow you to see
first hand how a child is functioning in naturally occurring settings. Observation data can also allow you to
compare the child’s’ behavior to that of peers in the same setting. Observation data helps us to understand not
only the child’s current functional performance but also the level of independence demonstrated which can help
determine necessary supports.
T
–
Test
: A wide range of tests or assessments may be useful in determining an individual child’s skills, abilities,
interests, and aptitudes. Typically, a test is regarded as an individual measure of a specific skill or ability, while
assessment is regarded as broader way of collecting information that may include tests and other approaches to
data collection. Standardized norm-referenced tests are helpful if the information being sought is to determine
how a child compares to a national group of children of the same age or grade. Criterion-reference tests are
helpful in determining if the child has mastered skills expected of a certain age or grade level. Tests typically
provide specific information but are never adequate as a single source of data to determine eligibility for special
education. Because tests require a controlled testing environment, the result is that children are removed from
their learning environments to participate. This is a very intrusive way of gathering data and the value of the
data obtained should always be weighed carefully against the cost of missed class time. For this reason, tests
should be thoughtfully selected and be used for specific purposes when data cannot be obtained through other
sources. Some test information may already have been collected during the GEI process, especially if the child
attends a school that uses school-wide benchmark assessment. However, additional information may need to
be collected during the initial evaluation. This might include curriculum-based assessments (e.g., CBA, CBM, or
CBE), performance-based assessments (i.e., rubric scoring), or other skill measures such as individual reading
inventories. The testing that needs to be done will vary depending on what information already has been
collected and the needs of the individual child. Diagnostic testing might include measures of reading, math,
written language, or other academic skills, or tests of motor functioning, speech/language skills, adaptive
behavior, self-concept, or any domain of concern. As with all types of data collection, the information from
testing needs to be useful for both diagnostic and programmatic decision-making.
GRIOT offers a framework in which to organize and structure data collection. It is not that any data source or
assessment procedure is inherently good or bad. All procedures and tools are appropriate as long as they are
selected thoughtfully and for the appropriate purposes. A team will not necessarily use all data sources every time
an evaluation is conducted. Thoughtful planning will need to be given for each child to ensure that the team is using
the appropriate tools to collect data useful for both making the eligibility determination and for program planning.
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F. ELIGIBILITY DETERMINATION AND DOCUMENTATION
At the time the evaluation is completed and the information is compiled, the team should schedule a time to convene
in order to make the determination of eligibility. Parents are to be provided an opportunity to participate in the
eligibility meeting, which can be conducted at the same time as the IEP team meeting. The school must provide a
notice of the meeting at least 10 calendar days prior to the meeting date that includes the requirements in K.A.R. 91-
40-17(b)(1).
The team must ensure that information obtained from all sources used in the evaluation is documented and carefully
considered (K.A.R. 91-40-10(d)(2); 34 C.F.R. 300.306(c)(1)(ii)). The parents and other qualified professionals review
the results of the initial evaluation to determine:
(1) whether the child is a child with an exceptionality as defined in Federal and State laws and regulations
(K.A.R. 91-40-1(k)(w); and
(2) the educational needs of the child (K.A.R. 91-40-10(a)(1); 34 C.F.R. 300.306(a)).
When interpreting evaluation data for the purpose of making these determinations, the team must:
•
draw upon information from a variety of sources, including aptitude and achievement tests, parent input, and
teacher recommendations, as well as information about the child’s physical condition, social or cultural
background, and adaptive behavior; and
•
ensure that information obtained from all of these sources is documented and carefully considered (K.A.R.
91-40-10(d); 34 C.F.R. 300.306(c)(1)(i) and (ii)) .
Teams must ensure that the child meets the definition of one of the categories of exceptionality and, as a result of
that exceptionality, needs special education and related services (i.e., 2 pronged test) (K.A.R. 91-40-1(k)(w); 34
C.F.R. 300.8). If a child meets the definition of an exceptionality category but does not need special education and
related services, s/he will not be determined to be eligible. If the child has a need for special education and related
services but does not meet the definition of an exceptionality category, s/he will not be determined to be eligible. In
the case of a child who is found to have a disability, but does not need special education and related services, a
referral for a 504 evaluation may be considered. Teams may utilize the “Eligibility Indicators, Fall 2007” document
(See Appendix A, Figure 3-4).
1. Determining Whether the Child is a Child with an Exceptionality
The team reviews the data to determine whether or not the child is a child with an exceptionality. To do this, team
members compare the data about the child to see if there is a match to one of the exceptionality categories defined in
the regulations. However, even when the data point to a particular area of exceptionality, there are exclusionary
factors that must be examined before determining the child is a child with an exceptionality.
Regulations are very clear with regard to the fact that a child must NOT be determined to be a child with an
exceptionality if:
(a) the determinant factor is:
•
Lack of appropriate instruction in reading, including the
essential components of reading instruction
(defined in section 1208(3) of the ESEA(NCLB) as phonemic awareness, phonics, vocabulary
development, reading fluency including oral reading skills, and reading comprehension
strategies
);
•
Lack of appropriate instruction in math; or
•
Limited English proficiency ; and
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(b) the child does not otherwise meet the eligibility criteria as a child with an exceptionality (K.S.A. 72-986(f);
K.A.R. 91-40-10(c); 34 C.F.R. 300.306(b)).
There are unique issues that must be examined before a child may be determined to have a specific learning
disability
. It is important that the team attend to collecting the data needed to examine these issues prior to and/or
as part of the initial evaluation. According to K.A.R. 91-40-11(b) (34 C.F.R. 300.309(a)), the group evaluating a child
for a specific learning disability collects the following:
(a) Data to determine that the child does not achieve adequately for the child’s age or to meet State-approved
grade-level standards in one or more of the following areas, when provided with learning experiences and
instruction appropriate for the child’s age or State-approved grade-level standards:
•
oral expression;
•
listening comprehension;
•
written expression;
•
basic reading skill;
•
reading fluency skills;
•
reading comprehension;
•
mathematics calculation;
•
mathematics problem solving.
Additionally, in order for a child to be eligible as a child with a specific learning disability, the evaluation and eligibility
report must document that the child meets the following conditions:
a. The child does not achieve adequately for the child’s age or to meet State-approved grade- level standards
when provided with learning experiences and instruction appropriate for the child’s age or State-approved
grade-level standards,
AND
(i) The child does not make sufficient progress to meet age or State-approved grade-level standards when
using a process based on the child’s response to scientific, research-based intervention;
OR
(ii)The child exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative
to age, State-approved grade-level standards, or intellectual development.
b. The determinate factor for why the child does not achieve adequately for the child’s age or does not make
sufficient progress to meet age or State-approved grade level standards, or exhibits a pattern of strengths
and weaknesses, is not primarily the result of:
•
A visual, hearing or motor disability;
•
mental retardation;
•
emotional disturbance;
•
cultural factors;
•
environmental or economic disadvantage; or
•
limited English proficiency (K.A.R. 91-40-9(a)(2)(3), K.A.R. 91-40-11(b); 34 C.F.R. 300.309(a)(3)).
If the evaluation data indicates there is a match with a particular category of exceptionality and the team has ruled
out the presence of any exclusionary factors, the team may determine that the child meets one of the requirements of
eligibility as a child with an exceptionality (Prong 1 of the test of eligibility). If there is not a match or exclusionary
factors are present, the team must determine that the child does not meet the eligibility of a child with an
exceptionality.
2. Determining Whether the Child Needs Special Education and Related Services
The second prong of the test of eligibility is to determine whether or not the child needs special education and related
services. It is helpful for teams to remember that by definition special education means specially designed instruction
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(K.A.R. 91-40-1(kkk); 34 C.F.R. 300.39(a)(1)), and, that specially designed instruction means adapting the content,
methodology or delivery of instruction to address the unique needs of a child that result from the child’s exceptionality
to ensure access of the child to the general education curriculum in order to meet the educational standards that
apply to all children (34 C.F.R. 300.39(b)(3)(i)-(ii)). This implies that in order to have a need for special education,
the child has specific needs which are so unique as to require specially designed instruction in order to access the
general education curriculum.
Kansas regulations at K.A.R. 91-40-7(c), require that prior to referral for an initial evaluation the school must have
data-based documentation of having provided appropriate instruction to the child and having implemented
educational interventions and strategies for the child, along with repeated assessments of achievement at reasonable
intervals, which reflect formal assessment of the child’s progress during instruction. The results of which indicate that
the child is suspected of having an exceptionality and may require special education and related services. If the
school is implementing a multi-tiered model of intervention, it will have data regarding the child’s needs related to the
intensity of instruction and supports required for the child to be successful.
The team must review the evaluation data in such a way as to understand the extent of the child’s needs with regard
to specially designed instruction. Teams should be able to use the data to describe the intensity of the support
needed to assist the child in accessing and progressing in the general education curriculum. It is only through this
discussion that the team can determine whether or not the child’s need for having adapted content, methodology, or
delivery of instruction is so great that it cannot be provided without the support of special education.
If the team determines that the child’s need for having adapted content, methodology, or delivery of instruction is so
great that it cannot be provided in regular education without the support of special education, the team may determine
that the child needs special education and related services (Prong 2 of the eligibility test). If the data suggests the
child’s needs for instruction can
be provided within regular education without the support of special education and
related services, the team must determine that the child is not
in need of special education and related services.
3. Eligibility Report
The evaluation team shall ensure that the information obtained from all sources is documented and considered. After
carefully considering all data and making the eligibility determination, the team then must document the decision
made regarding the child’s eligibility for special education and related services. Once the evaluation report and
documentation of eligibility has been completed, each team member must certify in writing whether the report reflects
the member’s conclusion. If it does not reflect the member’s conclusion, the team member must submit a separate
statement presenting the member’s conclusions (K.A.R. 91-40-10(a)(2); 34 C.F.R. 300.311(b)). (See Appendix A,
Figure 3-5, Evaluation/Eligibility Report Content Checklist)
The evaluation report serves as the documentation of the child’s eligibility. The evaluation report and the
documentation of eligibility must be provided, at no cost, to the parent (K.A.R. 91-40-10(b); 34 C.F.R. 300.306(a)(2)).
Additionally, the school is not required to classify a child with an exceptionality according to his/her category of
exceptionality if such child is regarded as a child with an exceptionality and is provided FAPE (K.A.R. 91-40-10(g)).
There are specific requirements for reporting the eligibility determination (K.A.R. 91-40-10(a), (e); 34 C.F.R.
300.311).
The evaluation report must include the following statements:
a. whether the child is a child with an exceptionality;
b. the basis for making the determination, including an assurance that the determination was made in
accordance with applicable laws and regulations;
c. the relevant behavior noted during the observation of the child; and for LD the relationship of that behavior
to the child’s academic functioning;
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d. the educationally relevant medical findings, if any;
e. for a child determined to have a
learning disability
, the report must include documentation of the following:
(i) the child does not achieve adequately for the child’s age or to meet State-approved grade- level
standards when provided with learning experiences and instruction appropriate for the child’s age or
State-approved grade-level standards;
AND
o
the child does not make sufficient progress to meet age or State-approved grade-level standards
when using a process based on the child’s response to scientific, research-based intervention;
OR
o
the child exhibits a pattern of strengths and weaknesses in performance, achievement, or both,
relative to age, State-approved grade-level standards, or intellectual development.
(ii) the team determines the reason the child does not achieve adequately for the child’s age, does not
make sufficient progress to meet age or State-approved grade level standards, or exhibits a pattern of
strengths and weaknesses, is not primarily the result of:
o
A visual, hearing or motor disability;
o
mental retardation;
o
emotional disturbance;
o
cultural factors;
o
environmental or economic disadvantage; or
o
limited English proficiency.
(iii)
if the child has participated in a process that assesses the child’s response to scientific,
research-based intervention (RtI/MTSS), the report must also document
o
the instructional strategies used; and
o
the student-centered data collected.
(iv)
Documentation that the child’s parents were notified about the process, including the following
information
:
o
the State’s policies regarding the amount and nature of student performance data that would be
collected and the general education services that would be provided (See Appendix A, Figure 2-3);
o
strategies for increasing the child’s rate of learning; and
o
the parent’s right to request an evaluation (K.A.R. 91-40-10(e), (f); K.A.R. 91-40-9(a)(2)(3), K.A.R.
91-40-11; 34 C.F.R. 300.309(a)(3); 34 C.F.R. 300.311(a)); and
f.
Signatures of each team member indicating whether the report reflects their conclusion. If it does not reflect
the team member’s conclusion, the team member must submit a separate statement presenting his/her
conclusion.
State Statute:
K.S.A. 72-986(e)(f)
(e) Upon completion of the administration of assessments and other evaluation materials:
(1) The determination of whether the child is an exceptional child shall be made by a team of qualified professionals
and the parent of the child in accordance with this section; and
(2) a copy of the evaluation report and the documentation of determination
of eligibility shall be given to the parent.
(f) In making a determination of eligibility under this section, a child shall not be determined to be an exceptional child if the
determinant factor for such determination is lack of instruction in reading, including instruction using the essential components of
reading instruction, math or limited English proficiency.
(g) (1) If it is determined that a child is an exceptional child, the agency shall seek consent from the parent of the child to provide
special education and related services to the child. No such services shall be provided until consent is given by the parent.
(2) If the parent of a child refuses to consent to the provision of services, or fails to respond to a request for consent to services,
the agency:
(A) Shall not initiate any procedure or proceeding under this act to gain authority to provide services to the child;
(B) shall not be considered to be in violation of the requirement to provide a free appropriate public education to the child; and
(C) shall not be required to convene an IEP meeting or develop an IEP for the child.
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State Regulations:
K.A.R. 91-40-1(k)(w)(kkk)
(k) "Child with a disability" means the following:
(1) A child evaluated as having mental retardation, a hearing impairment including deafness, a speech or language impairment,
a visual impairment including blindness, emotional disturbance, an orthopedic impairment, autism, traumatic brain injury, any
other health impairment, a specific learning disability, deaf-blindness, or multiple disabilities and who, by reason thereof, needs
special education and related services; and
(2) for children ages three through nine, a child who is experiencing developmental delays and, by reason thereof, needs special
education and related services.
(w) "Exceptional children" means children with disabilities and gifted children.
(kkk) “Special education” means the following:
(1) Specially designed instruction, at no cost to the parents, to meet the unique needs of an exceptional child, including the
following:
(A) Instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and
(B) instruction in physical education;
(2) paraeducator services, speech-language pathology services, and any other related service, if the service consists of specially
designed instruction to meet the unique needs of a child with a disability;
(3) occupational or physical therapy and interpreter services for deaf children if, without any of these services, a child would
have to be educated in a more restrictive environment;
(4) travel training; and
(5) vocational education.
K.A.R. 91-40-10. Eligibility determination.
(a) (1) After completion of appropriate evaluation procedures, a team of qualified
professionals and the parent of the child who has been evaluated shall prepare a written evaluation report that includes a statement
regarding each of the following matters:
(A) The determination of whether the child has an exceptionality;
(B) the basis for making the determination;
(C) the relevant behavior noted during the observation of the child;
(D) the relationship of that behavior to the child’s academic functioning;
(E) educationally relevant medical findings, if any; and
(F)
(i) if the child was evaluated for a specific learning disability, the additional information specified in subsection (e).
(2) Each team member shall certify in writing whether the report reflects the member's conclusion. If it the report does not
reflect that member's conclusion, the team member shall submit a separate statement presenting the member's conclusion.
(b) Each agency shall provide, at no cost, a copy of the evaluation report to the child’s parent.
(c) An evaluation team shall not determine a child to be an exceptional child if the determinant factor for that eligibility determination
is the child’s lack of appropriate instruction in reading or mathematics or limited English proficiency, and if the child does not
otherwise qualify as a child with an exceptionality.
(d) Each evaluation team, in determining whether a child is an exceptional child and what the educational needs of the child are, shall
meet the following requirements:
(1) The evaluation team shall draw upon information from a variety of sources, including the following:
(A) Aptitude and achievement tests;
(B) parent input;
(C) teacher recommendations;
(D) physical condition;
(E) social or cultural background; and
(F) adaptive behavior.
(2) The evaluation team shall ensure that the information obtained from all of the sources specified in paragraph (1) of this
subsection is documented and considered.
(e) If the evaluation team and the parent determine the parent's child to be a child with a specific learning disability, the
evaluation team and the parent shall prepare a written evaluation report that includes a statement regarding each of the following
matters:
(1) An indication of whether the child has a specific learning disability;
(2) the basis for making the determination, including an assurance that the determination has been made in accordance with
applicable laws and regulations;
(3) the relevant behavior, if any, noted during the observation of the child and the relationship of that behavior to the child's
academic functioning;
(4) educationally relevant medical findings, if any;
(5) an indication of whether the child meets the following criteria:
(A) Does not achieve adequately for the child's age or meet state-approved grade-level standards; and
(B)(i) Does not make sufficient progress to meet age standards or state-approved grade-level standards; or
(ii) exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, state-approved grade-
level standards, or intellectual development; and
(6) the determination of the team concerning the effect of the following factors on the child's achievement level:
(i) Visual, hearing, or motor skills disability;
(ii) mental retardation;
(iii) emotional disturbance;
(iv) cultural factors;
(v) environmental or economic disadvantage; and
(vi) limited English proficiency.
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(f) If the child has participated in a process that assessed the child's response to scientific, research-based intervention, the evaluation
report shall also address the following matters:
(1) The instructional strategies used and the student-centered data collected; and
(2) the documentation indicating that the child's parent was notified about the following:
(A) The state's policies regarding the amount and nature of student performance data that would be collected and the general
education services that would be provided;
(B) strategies for increasing the child's rate of learning; and
(C) the parent's right to request an evaluation.
(g) (1) Except as provided in paragraph (2) of this subsection, after a child has been determined to be a child with an exceptionality
and has been provided special education or related services, an agency shall conduct a reevaluation of the child before terminating
special education or related services to the child.
G. PRIOR WRITTEN NOTICE FOR IDENTIFICATION
After the eligibility determination is made, the school is required to provide Prior Written Notice to the parents that the
school proposes to initially identify the child as a child with an exceptionality and that the child requires special
education and related services. Likewise, school personnel must give Prior Written Notice to the parents if they
determine that a child is not eligible for special education or related services. The required content of the Prior
Written Notice is identical to the content described earlier in Section B of this chapter. However, parent consent is
not required for identification of a child with an exceptionality. (See Appendix A, Figure 1-6, Prior Written Notice and
Consent for Identification, or http://www.kansped.org)
H. INDEPENDENT EDUCATIONAL EVALUATION
After an initial evaluation is completed, if the parents disagree with the school's evaluation, they have the right to ask
for an independent educational evaluation at public expense. If the parent obtains an independent educational
evaluation at public expense or provides the agency with an evaluation obtained at private expense, the results of the
evaluation shall be considered by the school, if it meets the school’s criteria, in any decision made with respect to the
provision of FAPE to the child.
Independent educational evaluation means an evaluation conducted by a qualified examiner who is not employed by
the district responsible for the education of the child in question. Public expense means that the district either pays
for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to the parent.
If the parent requests an independent educational evaluation the school must either:
Provide information to the parent about where an independent educational evaluation can be obtained, the
agency criteria (which may include qualifications of examiners and location to obtain the evaluation); and
Ensure that the evaluation is provided at public expense, unless the special education due process hearing
officer determines that the independent educational evaluation did not meet agency criteria; or
Initiate a due process hearing to show that the school's evaluation was appropriate.
If a parent requests an independent educational evaluation, the agency may ask the reason for the objection to the
public evaluation. However, the explanation by the parent shall not be required, and the agency shall not
unreasonably delay either providing the independent educational evaluation at public expense or initiating a due
process hearing to defend the public evaluation.
A due process hearing would determine whether the school must pay for the independent educational evaluation. If
the school’s evaluation is found to be appropriate and the parents still want an independent educational evaluation,
the expense is the responsibility of the parents. When an independent educational evaluation is conducted, the
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school or a special education due process hearing officer, or both must consider the results of the independent
educational evaluation in decisions made with respect to a free appropriate public education for the child.
If an independent educational evaluation is provided at public expense, the criteria under which the evaluation is
obtained must be the same as the criteria that the school uses when it initiates an evaluation. These criteria may
include the location of the evaluation and the qualifications of the examiner. The credentials of the independent
evaluator or evaluators must be comparable to the school’s evaluators. The school may set reasonable limitations
on the costs for which it will be responsible. The school may have to exceed those costs if necessary to ensure that
the independent educational evaluation meets the child’s unique needs.
If a special education due process hearing officer requests an independent educational evaluation, the evaluation is
provided at public expense. The school either pays the full cost of the evaluation, or ensures that the evaluation is
otherwise provided at no cost to the parents. A parent is entitled to only one independent education evaluation at
public expense each time the public agency conducts an evaluation with which the parent disagrees (34 C.F.R.
300.502(b)(5)).
State Regulations:
K.A.R. 91-40-12
91-40-12. Right to independent educational evaluation. (a) (1) Subject to the conditions specified in this regulation, the parent of an
exceptional child shall have the right to request an independent educational evaluation at public expense if the parent disagrees with
the evaluation obtained by the agency.
(2) The parent shall be eligible for only one independent educational evaluation at public expense in response to an evaluation
conducted by the agency.
(b) If a parent requests an independent educational evaluation of the child, the agency, without unnecessary delay, shall take one
of the following actions:
(1) Initiate a due process hearing to show that its evaluation is appropriate; or
(2) (A) Provide information to the parent about where an independent educational evaluation may be obtained and the agency
criteria prescribed under subsection (g)that apply to independent educational evaluations; and
(B) take either of the following actions:
(i) Pay the full cost of the independent educational evaluation or otherwise ensure that the evaluation is provided at no cost to
the parent; or
(ii) initiate a due process hearing to show that the evaluation obtained by the parent does not meet agency criteria.
(c) If the agency initiates a hearing and the final decision is that the agency’s evaluation is appropriate, the parent shall still have
the right to an independent educational evaluation, but the agency shall not be required to pay the cost of that evaluation.
(d) If a parent requests an independent educational evaluation, the agency may ask the reason for the objection to the public
evaluation. However, the explanation by the parent shall not be required, and the agency shall not unreasonably delay either
providing the independent educational evaluation at public expense or initiating a due process hearing to defend the public
evaluation.
(e) If the parent obtains an independent educational evaluation at public expense or provides the agency with an evaluation obtained at
private expense, the results of the evaluation shall be considered by the agency, if it meets agency criteria, in any decision
made with respect to the provision of FAPE to the child. The results of this evaluation may be presented as evidence at
a due process hearing regarding that child.
(f) If a hearing officer requests an independent educational evaluation as part of a hearing, the cost of the evaluation shall be paid by
the agency.
(g) (1) Subject to the provisions of paragraph (2) of this subsection, each agency shall adopt criteria for obtaining an independent
educational evaluation at public expense. The criteria may include the qualifications of the examiner and the location of the
evaluation, but shall not impose other conditions or timelines for obtaining the evaluation.
(2) The criteria adopted by an agency under paragraph (1) of this subsection shall be the same as the criteria that the agency uses
when it conducts an evaluation, to the extent that those criteria are consistent with the parents’ right to obtain an independent
educational evaluation.
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QUESTIONS AND ANSWERS ABOUT
INITIAL EVALUATION AND ELIGIBILITY
1. What happens when a child transfers to a different school district during the initial
evaluation?
Assessments for a child who transfers to a different school district in the same school year during the initial
evaluation are coordinated with the child’s prior and subsequent schools, as necessary and as expeditiously as
possible, to ensure prompt completion of the full evaluation. The 60 school day timeline for the initial evaluation
may be extended only if the new school is making sufficient progress to ensure a prompt completion of the
evaluation, and the parent and the new school agree to a specific time when the evaluation will be completed.
2. How can school staff ensure that evaluation materials and procedures used to assess
racially and culturally diverse children are appropriate?
It is important that professionals conducting evaluations be aware of the potential bias that exists in all areas of
assessment and seek to choose techniques and tools that reduce bias to the largest extent possible. This may
involve being more aware of the growing body of research literature on this topic, developing a deeper
understanding of the cultural and linguistic diversity represented in the school, purchasing evaluation materials
that have been developed to reduce bias, and utilizing trained bilingual examiners. Further, professionals
conducting the evaluation must document the extent that an assessment was not conducted under standard
conditions (e.g., giving a standardized test in a language other than the one it was originally developed for).
Teams should carefully consider the presence of bias and interpret the results of that evaluation accordingly.
3. What are the qualifications of the people doing the assessment?
Each assessment must be given and interpreted by a licensed or certified professional in the area being
assessed (e.g., speech and language, motor, behavior, or other area). Public school psychological evaluations
must be given and interpreted by school psychologists. Certain test developers/suppliers also have specific
requirements with regard to training and qualifications that must be considered. Assessments during initial
evaluations encompass much more than test administration, however. When planning to collect the data for an
evaluation, teams should determine which individuals have the most appropriate skills to obtain whatever data is
needed.
4. May an initial evaluation consist only of existing data?
Yes. Existing data should be reviewed as a part of any initial evaluation. This would include evaluations and
information provided by the parents, current classroom-based, local, or State assessments and classroom-based
observations, and observations from teachers and related service providers. For an initial evaluation, such data
would help the team to decide if more information is needed to determine eligibility--both the presence of an
exceptionality and the determination of the child's educational need. The existing data will also help identify the
present levels of academic achievement and related developmental needs of the child, 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, or
for preschool age children, an age appropriate environment. If the team has enough information from all five
required sources of data (
G
eneral Education Interventions or Screening,
R
ecord Review,
I
nterviews,
O
bservations,
T
ests), the team may conclude that no additional data are needed and eligibility may be determined based upon
existing data. The Prior Written Notice would include: (1) a statement of this fact and the reasons for it; and (2) a
statement of the right of the parents to request additional assessment to determine whether the child is a child with
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an exceptionality. Parent consent to conduct the initial evaluation is required, whether or not additional data is
needed.
5. What is the parent’s role in the review of existing data?
As members of the IEP team, parents may review any existing data, as well as provide existing data to the evaluation
team. Parents may contribute relevant medical data or other records that the parent has concerning the child.
6. Does an evaluation report have to specify the particular category of exceptionality
under which a child has been identified?
Kansas regulations, at K.A.R. 91-40-10(a)(1)(A), require that the evaluation report include a statement as to
whether the child has an exceptionality. These regulations do not require that the evaluation report include the
particular category of exceptionality in which a child has been identified.
However, no information should be withheld from parents. It is important that parents be informed of the particular
category of exceptionality in which eligibility for special education was determined, and which is reported by the
school to the state through the Management Information System (MIS). In a court case where the school did not
inform the parents that the special education evaluation identified their child as having autism, the United States
Circuit Court of Appeals said:
“Procedural violations that interfere with parental participation in the IEP formulation process
undermine the very essence of the IDEA…These procedural violations, which prevented Amanda’s
parents from learning critical medical information about their child, rendered the accomplishment of
the IDEA’s goals and the achievement of a FAPE – impossible.” Amanda J. v. Nevada State
Department of Education, 260 F.3d 1106 (9
th
Cir. 2001).
In essence, this court said that the IEP team could not create a valid IEP that addressed the child’s unique needs if
required members of the team (the parents) were not fully informed of the evaluation results, which indicated their
child had autism. Although this court did not address it, when a parent is not fully informed of the results of an
evaluation, it is also likely that any consent given by the parent will be deficient. For these reasons, it is
recommended that the evaluation report include the specific category of exceptionality in which a child is identified
as an exceptional child. If the category of exceptionality is not identified in the evaluation report, it is important that
school personnel document in some other way that the parents have been informed of this important information.
7. If the eligibility determination team fails to reach consensus about a child’s eligibility
for special education, who makes the decision?
Teams should try to reach consensus about the eligibility decision. If a member of the school team does not
agree with the others, they are able to record their disagreement on the eligibility report. However, if the team
cannot reach agreement, the final decision rests with the person who serves as the LEA representative at the
eligibility determination meeting.
8. Can the evaluation team use severe discrepancy between ability and achievement to
determine eligibility for learning disability?
Remember the two-prong test for eligibility. The existence of a severe discrepancy between ability and
achievement is only a single indicator of whether a child might be a child with an exceptionality (prong 1). Other
supporting data would be needed to establish the presence of a learning disability. In addition, other types of
data would be needed to indicate that the child needs special education and related services (prong 2).
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9.
Once a child has been exited from special education services, must you complete
an initial evaluation upon a referral to determine need for special education?
Once the child has been identified as a child with an exceptionality, even though s/he may have been exited, any
subsequent evaluation would be a "reevaluation." The reevaluation must include all the same requirements for
an initial evaluation and a review of existing data. If there is enough current data available, there may not need
to be any further assessments.
11. If the parent presents written information from an outside agency (i.e., medical
doctor) stating the need for an evaluation and/or IEP is the school district obligated to
complete an evaluation to determine eligibility?
This should be considered a referral for an evaluation. The school has the right to determine the need for an
evaluation. They are to ensure that the child has been presented with general education interventions wither
before or during the evaluation and collect data to determine the child’s need for an evaluation. The school must
provide Prior Written Notice to the parent if they refuse to conduct an evaluation.
12. How should school staff respond if the parent and/or outside agency request a
specific assessment be completed as part of an evaluation?
The school evaluation team is to determine what assessments are to be conducted as part of the evaluation.
They should consider any request from the parent or outside agency, however, if the school proposes to conduct
the evaluation with no additional data, the parent may request the school to conduct an assessment to determine
if the child is a child with an exceptionality and to determine the educational needs of the child.
13. If a parent presents an outside evaluation report to the school, is the school district
obligated to implement the recommendations made by the outside evaluation team?
After an initial evaluation is completed, if the parents disagree with the school's evaluation, they have the right to
ask for an independent educational evaluation at public expense. If the parent obtains an independent
educational evaluation at public expense or provides the agency with an evaluation obtained at private expense,
the results of the evaluation shall be considered by the school, if it meets the school’s criteria, in any decision
made with respect to the provision of FAPE to the child. However, the school is not obligated to implement the
recommendations made by the outside evaluation team.
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CHAPTER 4
THE INDIVIDUALIZED EDUCATION PROGRAM
(IEP)
INTRODUCTION
The Individualized Education Program (IEP) is defined as a written statement for each student with an exceptionality
which describes that child’s educational program and is developed, reviewed, and revised in accordance with special
education laws and regulations. The team that develops the IEP includes parents, school professionals, the student
(when appropriate), and personnel from other agencies as appropriate (when addressing transition). Each IEP must
be developed with careful consideration of the individual child’s capabilities, strengths, needs, and interests. The IEP
should direct the child toward high expectations and toward becoming a member of his or her community and the
workforce. It should function as the tool that directs and guides the development of meaningful educational
experiences, thereby helping the child learn skills that will help them achieve his or her goals. In short, it should
assist the child in meeting the goals and challenging standards of our educational system as well as identified
postsecondary goals.
The IEP describes and guides services for each child on an individual basis. Such a guide also assists teachers and
other staff to have very specific, well-defined measurable annual goals for each eligible child. All persons involved
should have high expectations for children and work from a strengths perspective in developing educational
programs. The IDEA includes numerous IEP requirements. Kansas has State statutes and regulations regarding
IEPs, which also include children identified as gifted. Additionally, for children ages 3-5, an Individualized Family
Service Plan (IFSP) may be used, with parent consent.
This chapter addresses the following topics:
A. IEP Team
B. Notice of IEP Team Meeting
C. Using An IFSP Instead of An IEP
D. When IEP/IFSP Must Be in Effect
E. Development of the IEP
F. Meeting to Review and Revise the IEP
G. Transfer within State or from Out-Of-State
H. Implementing the IEP
A. IEP TEAM
The IEP team is a group of people, knowledgeable about the child, who come together at an IEP meeting in order to
develop or review and revise a child's IEP. Collaboration among IEP team members is essential to ensure that each
child’s educational experience is appropriate and meaningful. All members of the IEP team are equal partners in IEP
discussions. Because of their long-term perspective and unique relationship, parents bring a valuable understanding
of their child to the table. Children also can express their own needs, strengths, and interests. Educators, on the
other hand, bring an educational focus to the meeting; an understanding of the curriculum, the challenging
educational standards for the child, and the relationship to the general education environment. With this in mind,
parents and educators must continue to recognize their responsibility to maintain and enhance partnerships with each
other and the child throughout the school year in order to create a collaborative environment at each IEP team meeting.
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The IEP team should work toward consensus, however, if an IEP team is unable to come to consensus the school
has ultimate responsibility to ensure that the IEP includes the services that the child needs in order to receive a free
appropriate public education (FAPE). Following the IEP meeting, the school must provide the parents Prior Written
Notice of the school’s proposal for services as identified in the child’s IEP. If, after all options have been exhausted,
the parents and the school cannot come to agreement either party may ultimately utilize mediation or due process
proceedings to resolve the differences.
1.
IEP Team Membership
The members of the IEP team are specifically identified and described in State and federal laws and regulations. In
addition to the following listed members of the IEP team, if parents need a sign language or foreign language
interpreter, the school must provide that service (K.S.A. 72-962(u); K.A.R. 91-40-17(d); 34 C.F.R. 300.322(e); 34
CRF 300.321).
a.
The student
must be invited to attend his/her own IEP meeting beginning at age 14, or younger, if a
purpose of the meeting is consideration of the student’s postsecondary goals and the transition services
needed to assist the student in reaching those goals. If the student elects not to participate, the IEP team
must take other steps to ensure that the student's preferences and interests are considered in developing
the IEP (K.S.A. 72-987(c)(8); K.A.R. 91-40-17(f); (34 C.F.R. 300.321(b)(2)). The school may invite the
student to attend their own IEP team meeting at any age if appropriate.
The school is not required to give students younger than age 18 the same notice of meeting that is required
for parents, but should document that the student was invited to the meeting. Beginning at age 18, if rights
have transferred to the student, both the student and parents must receive 10-day written notice of the IEP
team meeting (K.S.A. 72-989; K.A.R. 91-40-17(a)(2)).
b.
The parents
must be members of the IEP team. The parents are equal partners and play an active role in
providing critical information about their child's abilities, interests, performance, and history. They are
involved in the decision-making process throughout the development of the IEP (K.A.R. 91-40-17(a)).
(See Chapter 1 of this Process Handbook for a discussion of who may act as a parent.)
c.
The special education teacher(s
) or provider(s); not less than one special education teacher of the child,
or where appropriate, not less than one special education special education provider of the child. The
school may determine the particular individual(s) to be members of the IEP team.
d.
The general education teacher(s)
not less than one general education teacher of the child, if the child is,
or may be, participating in the general education environment (K.S.A. 72-962(u)(2)). This must be a teacher
who is or may be working with the child to ensure success in the general curriculum and implement portions
of the IEP. The general education teacher is knowledgeable about the curriculum, appropriate activities of
typically developing peers, and how the child’s exceptionality affect the child’s participation (involvement and
progress) in the curriculum or those appropriate activities. General education teachers assist in the
development, review and revision of the IEP including determining appropriate positive behavioral
interventions and supports and other strategies for the child, as well as supplementary aids and services,
program modifications and supports to enable general education teachers to work with the child (K.A.R. 91-
40-17(h)).
If the child has several general education teachers, at least one must attend the IEP meeting. However, it
may be appropriate for more to attend. The school may designate which teacher or teachers will serve as
IEP team member(s), taking into account the best interests of the child. The general education teacher who
serves as a member of the child’s IEP team should be one who is, or may be, responsible for implementing
a portion of the IEP. The school is strongly encouraged to seek input from the teachers who will not be
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attending the IEP team meeting. All general education teachers of the child must be informed by the IEP
team of their specific responsibilities related to implementing the child’s IEP and the specific
accommodations, modifications, and supports that must be provided for the child in accordance with the
IEP. The child’s IEP must be accessible to each general education teacher who is responsible for its
implementation (K.A.R. 91-40-16(b)(4)(5)).
General Education Teacher for Early Childhood
If a school district provides 'regular education' preschool services to nondisabled children, or if a preschool
child with disabilities is enrolled in a preschool program for children without disabilities operated by the
school district, the preschool teacher has the same requirements to attend the IEP meeting as for school
age children. If the child is enrolled in a preschool program for children without disabilities that is not
operated by the school district, the school is required to invite the preschool teacher, but has no authority to
require his/her attendance. If the preschool teacher of the child does not attend the school shall designate a
teacher who, under State standards, is qualified to serve children without disabilities of the same age.
For a child 3-5 years of age, the representative may be a preschool teacher (e.g., regular preschool, Title I
preschool, Even Start, Head Start, Migrant, Bilingual, 4-year-old at-risk, Parents as Teachers, etc.). For a 4-
or 5-year old child, the general education teacher may be the kindergarten teacher, if the child is or will be
attending kindergarten within the term of the IEP. Early childhood providers working in various community
settings must meet the credentialing requirements of their hiring agencies. KSDE acknowledges those
requirements, and encourages those providers to take part in IEP meetings, as appropriate, for preschool-
aged children.
For a child 3-5 years of age that is in a setting that does not provide a preschool educational component
(e.g., home setting or child care) it is considered the child does not have a regular education teacher and is
not participating in a general education environment, therefore, a general education teacher is not required
to be part of the IEP team. However, a parent may invite a child care provider to attend the IEP team
meeting as a person with knowledge or expertise about the child.
See Figures 4-1a and 4-1b in Appendix A, for additional guidance on when a preschool general education
teacher must attend the IEP meeting and who meets the requirements of a general education teacher for
early childhood.
General Education Teacher for Children in Separate Settings
It is expected that the circumstances will be rare in which a general education teacher would not be required
to be a member of the child's IEP team. However, there may be situations where a child is placed in a
separate school and participates only in meals, recess periods, transportation, and extracurricular activities
with children without exceptionalities and is not otherwise participating in the general education
environment, and no change in that degree of participation is anticipated during the next twelve months. In
these instances, since there would be no current or anticipated general education teacher for a child during
the period of the IEP, it would not be necessary for a general education teacher to be a member of the
child's IEP team.
e.
The School Representative
or designee must be a member of the IEP team. There are three requirements
of the school representative or designee. The school representative or designee:
i. is qualified to provide or supervise provision of special education services;
ii. has knowledge of the general education curriculum; and
iii. is knowledgeable about the availability of the school’s resources. (K.S.A. 72-962(u)(4))
The primary responsibility of the school representative or designee must be to commit school resources and
ensure that services written in the IEP will be provided. The school representative must have the authority
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to commit school resources and be able to ensure that whatever services are described in an IEP will
actually be provided because the school will be bound by the IEP that is developed at an IEP meeting
(Federal Register, August 14, 2006, p. 46670).
f.
A person who can interpret instructional implications
of any new evaluation or assessment results must
also be a member of the IEP team. This may include individuals who participated on the evaluation team.
Certainly a school psychologist, a special education teacher, general education teacher, speech/language
pathologist, or other related service provider might have evaluation results that need to be interpreted and
provide instructional implications.
g.
Others,
include individuals who have knowledge or special expertise regarding the child, including related
services personnel, as appropriate, and those who are invited by the parents or the school to attend the IEP
meeting.
The determination of who has knowledge or special expertise regarding the child is made by the party
(parents or school) who invited the individual to be a member of the IEP team. Therefore, the other party
may not bring into question the expertise of an individual invited to be a member of the IEP team and may
not exclude another team member’s expert based on the amount or quality of their expertise (KSR 91-40-
17(j); 34 C.F.R. 300.321(c)). Although parents are not required to do so, the school may ask the parents to
inform them of the individuals they are bringing. The person who contacts the parents may wish to ask
them if they intend to bring other people to be sure that the room is adequate for the number of participants.
Other team members may also be added, based on the child’s individual needs. For example, for a child
who uses assistive technology or who may be in need of such services, an internal or outside expert may be
required at this meeting. In other circumstances, the school nurse or another health professional should
attend. Any child with a need for a Health Care Plan should have a health professional participate at the
annual review meeting for the IEP, and other meetings as appropriate. Other team members might be
speech-language pathologists, occupational or physical therapists, adapted physical education teachers, or
others as appropriate.
h.
Representatives of any other agencies.
For a child with a disability age 14 or older the IEP team will
consider the transition services of the child, and the IEP team must determine, to the extent appropriate, any
other public agency that must be invited to the IEP meeting because they are likely to be responsible for
providing or paying for transition services. The parents, or a student who is 18 year of age, must provide
consent for the school to invite any outside agency who may be providing secondary transition services to
the IEP meeting (K.A.R. 91-40-17(g); 34 C.F.R. 300.321(b)(3)).
Consent from the parent (or adult student) is required when inviting outside agencies to ensure the
protection of confidentiality of any personally identifiable data, information and records collected or
maintained by the school. Although the school has the responsibility to invite (after receiving parent or adult
student consent) individuals from other agencies, the school district does not have the authority to require
the other agency representative to attend the IEP meeting (Federal Register, August 14, 2006, p. 46672).
(See Figure 4-5 in Appendix A for Consent to Invite Representative of Noneducational Agency to IEP
Meeting.)
i.
Representative of Part C services
.
When conducting an initial IEP team meeting for a child who was
previously served under Part C of the federal law, a school, at the request of the parent, shall send an
invitation to attend the IEP meeting to the local Part C services coordinator or other representative of the
Part C system to assist with the smooth transition of services (K.S.A. 72-987(a)(2)(B).
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j.
Multiple roles
. The law allows for individuals to represent more than one of the membership roles on the
IEP team. If a person is representing more than one role, s/he must meet the individual qualifications for
each role at the IEP team meeting. Additionally, all of the requirements for one representative do not have
to be filled by one person; other members of the school team may meet one or any of these requirements.
Individuals assuming more than one role at an IEP team meeting should document their roles on the
signature page of the IEP. Although there is no legal minimum number of participants at IEP team meetings,
the number of participants should be reasonable and appropriate to address the needs of the child and to carry
out the intent of the law. It would probably not be responsible for only one member of the school staff to
adequately represent every required membership role at an IEP team meeting (K.A.R. 91-40-17(i)).
State laws and regulations and Federal regulations (34 C.F.R. 300.321) address required IEP team members:
Kansas Statute:
K.S.A. 72-962
(u) ‘‘Individualized education program team’’ or ‘‘IEP team’’ means a group of individuals composed of:
(1) The parents of a child;
(2) at least one regular education teacher of the child, if the child is, or may be, participating in the regular education environment;
(3) at least one special education teacher or, where appropriate, at least one special education provider of the child;
(4) a representative of the agency directly involved in providing educational services for the child who:
(A) Is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of exceptional
children;
(B) is knowledgeable about the general curriculum; and
(C) is knowledgeable about the availability of resources of the agency;
(5) an individual who can interpret the instructional implications of evaluation results; (6) at the discretion of the parent or the agency, other
individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate
K.S.A. 72-987
(a)(2)(B) In conducting the initial IEP meeting for a child who was previously served under part C of the federal law, an agency, at the request of
the parent, shall send an invitation to attend the IEP meeting to the part C services coordinator or other representatives of the part C system
to assist with the smooth transition of services.
K.S.A. 72-989. Rights of child with disability upon reaching 18 years of age.
When a person who has been determined to be a child
with a disability reaches the age of 18, except for such a person who has been determined to be incompetent under state law:
(a) An agency shall provide to both the person and to the person's parents any notice required by this act;
(b) all other rights accorded to parents under this act transfer to the person;
(c) the agency shall notify the person and the parents of the transfer of rights; and
(d) all rights accorded to parents under this act transfer to the person if incarcerated in an adult or juvenile federal, state
or local correctional institution.
State Regulations:
K.A.R. 91-40-17
. IEP team meetings and participants.
(a) Each agency shall take steps to ensure that a parent of an exceptional child is present at each IEP team meeting or is afforded the opportunity
to participate. These steps shall include the following:
(1) Scheduling each meeting at a mutually agreed-upon time and place and informing the parent of the information specified in subsection
(b) of this regulation;
(2) except as otherwise provided in K.A.R. 91-40-37, providing written notice, in conformance with subsection (b) of this regulation, to the
parent of any IEP team meeting at least 10 days in advance of the meeting.
(b) The notice required in subsection (a) of this regulation shall meet the following requirements:
(1) The notice shall indicate the purpose, time, and location of the IEP team meeting and the titles or positions of the persons
who will attend on behalf of the agency, including, if appropriate, any other agency invited to send a representative to discuss
needed transition services.
(2) If the meeting is for a child who has been receiving special education services under the infant and toddler provisions of the federal law
but is now transitioning to the provisions for older children, the notice shall inform the parent that the parent may
require that a representative of the infant and toddler program be invited to attend the initial IEP team meeting to assist with the
smooth transition of services.
(3) The notice shall indicate the following information, if a purpose is to consider postsecondary goals and transition services
for the child:
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(A) The agency will invite the parent's child to attend.
(B) One of the purposes of the meeting will be to consider the postsecondary goals and needed transition services for the student.
(4) The notice shall inform the parent that the parent has the right to invite to the IEP team meeting individuals whom the
parent believes to have knowledge or special expertise about the child.
(c) If a parent of an exceptional child cannot be physically present for an IEP team meeting for the child, the agency shall attempt other measures
to ensure parental participation, including individual or conference telephone calls.
(d) An agency shall take action to ensure that parents understand the discussions that occur at IEP team meetings, including arranging for an
interpreter for parents who are deaf or whose native language is other than English.
(e)(1) An agency may conduct an IEP team meeting without parental participation if the agency, despite repeated attempts, has been unable to
contact the parent or to convince the parent to participate.
(2) If an agency conducts an IEP team meeting without parental participation, the agency shall have a record of the attempts that the agency
made to contact the parent to provide notice of the meeting and to secure the parent's participation. The record shall include at least two of
the following:
(A) Detailed records of telephone calls made or attempted, including the date, time, and person making the calls and the results of the calls;
(B) detailed records of visits made to the parent's home or homes, including the date, time, and person making the visit and the results
of the visit;
(C) copies of correspondence sent to the parent and any responses received; and
(D) detailed records of any other method attempted to contact the parent and the results of that attempt.
(f)(1) An agency shall invite a child with a disability, regardless of the child’s age, to attend any IEP team meeting for the child if a purpose of the
meeting is consideration of the child’s postsecondary goals and transition services needs.
(2) If the child with a disability does not attend the IEP team meeting, an agency shall take other steps to ensure that the child’s preferences
and interests are considered.
(g) If a purpose of any IEP team meeting for a child with a disability is consideration of the postsecondary goals of the child and the transition
services needed to assist the child to reach those goals, the agency, with the consent of the parent or the child if the child is at least 18 years old,
shall invite a representative of any other agency that is likely to be responsible for providing or paying for transition services.
(h) A regular education teacher of an exceptional child, as a member of an IEP team, shall participate to the extent appropriate in the
development, review, and revision of the child’s IEP. This participation shall include assisting in making the following determinations:
(1) The appropriate positive behavioral interventions and strategies for the child;
(2) the supplementary aids and services needed by the child; and
(3) the program modifications or supports for school personnel that will be provided to assist the child.
(i) If qualified to do so, an agency member of the IEP team may serve in the role of two or more required members of a child’s IEP team.
(j) In asking individuals with knowledge or special expertise about a child to be members of the child’s IEP team, the party asking the person to
participate shall have the sole discretion in determining whether the invited person has knowledge or special expertise regarding
the child.
2.
IEP Team Attendance and Excusals
A member of the IEP team, as described above, is not required to attend an IEP team meeting, in whole or in part, if
the parent of a child with an exceptionality and the school agree, in writing, that the attendance of the IEP team
member is not necessary because the member’s area of the curriculum or related services is not being modified or
discussed in the meeting.
A required member of the IEP team, may be excused from attending an IEP team meeting, in whole or in part, when
the meeting involves a modification to or discussion of the member’s area of the curriculum or related services, if:
•
The parent, in writing, and the school consent to the excusal; and
•
The IEP team member submits, in writing to the parent and the IEP team, input into the development of the
IEP prior to the meeting (K.S.A. 72-987(b)(2)(3); 34 C.F.R. 300.321(e)).
Informed parental consent means that the school must provide the parent with appropriate and sufficient information
to ensure that the parent fully understands that the parent is consenting to excuse a required IEP team member from
attending an IEP team meeting in which the member’s area of the curriculum or related services is being changed or
discussed and that if the parent does not consent the IEP team meeting must be held with that IEP team member in
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attendance (Federal Register, August 14, 2006, p 46674). To ensure that the parent is fully informed and written
agreement or consent is appropriately documented, it is highly recommended that the school use the KSDE sample
form for excusing a member of the IEP team. (See Figure 4-3 in Appendix A, for Excusal from IEP Team Meeting
form or http://www.kansped.org .)
Excusals through written agreement or consent apply only to the required IEP team members. Other members of the
team, who have been invited by the school district or the parent, may be excused from attending the meeting without
agreement or consent. If an individual that is not a required IEP team member, as described above, but is invited to
attend a meeting, and is included on the notice of meeting, it is not required for the parent and school to consent
and/or provide written agreement to excuse those individuals because they are not required members of an IEP team
(Federal Register, August 14, 2006, p. 46675).
Schools are encouraged to carefully consider, based on the individual needs of the child and the issues that need to
be addressed at the IEP team meeting, whether it makes sense to offer to hold the IEP team meeting without a
particular IEP team member in attendance or whether it would be better to reschedule the meeting so that person
could attend and participate in the discussion (Federal Register, August 14, 2006, p. 46674). Each school district
should consider developing a policy indicating who the local representative is that has authority to consent to the
excusal of a member of the IEP team.
Kansas Statute:
K.S.A. 72-987(b)(2)(3)
(2) A member of a child’s IEP team shall not be required to attend an IEP meeting, if the parent of the child and the agency agree that the
attendance of such IEP member is not necessary because the IEP member’s area of curriculum or related service is not to be discussed
or modified at the meeting. The parent’s agreement shall be in writing.
(3) A member of a child’s IEP team may be excused from attending an IEP meeting when the meeting is to involve a discussion of, and
possibly a modification to, the IEP member’s area of the curriculum or related service, if:
(A) The parent and the agency consent to the excusal;
(B) the IEP member submits, in writing to the parent and the IEP team, input into the development of the IEP prior to the meeting;
and
(C) the parent’s consent to the excusal is in writing.
B. NOTICE OF IEP MEETING
The school must take steps to ensure that one or both parents are present at each IEP meeting or are otherwise
afforded the opportunity to participate in the IEP meeting. The meeting is to be scheduled at a mutually agreed upon
time and place. The school must provide notice of an IEP meeting to the parents for the initial IEP meeting and any
subsequent IEP meetings. The notice must be provided in writing at least 10 calendar days prior to the meeting
(K.A.R. 91-40-17(a)(2)) and if the child is at least 14 years old, inform the parents that their child is invited to attend
the meeting. (See Appendix A, Figure 1-7, Meeting Notice and Figure 4-6 IEP Meeting Requirements)
If parents are divorced, regardless of which parent has primary custody, the school must notify both parents unless a
court order precludes this from happening. This applies to all special education notice requirements including notice
of an IEP meeting. If the school is only aware of one parent's address, the school must make reasonable efforts to
locate the other parent in order to provide notice. The school is not required to conduct duplicate IEP team meetings
for divorced parents that do not wish to attend the same meeting.
Beginning at age 14, or younger, if a purpose of the meeting is consideration of the student's postsecondary goals or
transition services, the student must be invited to attend and participate in the IEP team meetings. The school is not
required to give children who are younger than age 18 the same notice that is required for parents, but should
document that the student was invited to the meeting. The school is required to invite the student to the IEP meeting
even if the student’s parents do not want their child to attend the meeting. However, because parents have authority
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to make educational decisions for their child (under 18 years of age), the parents make the final determination of
whether their child will attend the meeting (Federal Register, August 14, 2006, p. 46671).
Beginning at age 18, if rights have transferred to the student, all notices are to go to both the adult student and the
parent, including the notice of the IEP meeting (K.S.A. 72-989(a)). When a student reaches 18 years of age, the
parents no longer have a right to attend or participate in an IEP meeting for their child. The school or the student
may invite the parents to attend the meeting as persons with knowledge or expertise about the student. The notice of
the IEP meeting could be used as an invitation for all team members who are invited to attend the IEP meeting. An
IEP meeting requirements checklist has been developed to ensure all requirements are met (see Figure 4-6 in
Appendix A).
1.
Content of Notice of IEP Meeting
The written notice must indicate (K.A.R. 91-40-17(b); 34 CRF 300.322(b)):
a. the purpose;
b. date;
c. time;
d. location of the meeting;
e. the titles or positions of the persons who will attend on behalf of the school (The school is to notify the
parents about who will be in attendance at an IEP team meeting, however, individuals may be indicated by
position only. The school may elect to identify participants by name, but they have no obligation to do so.);
f. inform the parents of their right to invite to the IEP meeting individuals whom the parents believe to have
knowledge or special expertise about their child; and
g. inform the parents that if their child was previously served in Part C they may request that the local Part C
coordinator or other representative be invited to participate in the initial IEP meeting to ensure a smooth
transition of services.
In addition, beginning not later than the first IEP to be in effect when the child turns 14, or younger if determined
appropriate by the IEP team;
h. indicate that a purpose of the meeting is the consideration of the postsecondary goals and transition
services;
i.
indicate that the school will invite the student; and
j.
identify any other agency that will be invited, with parent consent (or adult student consent), to send a
representative. (K.A.R. 91-40-17(g))
See Figure 1 - 7 in Appendix A for a sample Meeting Notice form.
2.
Methods to Ensure Parent Participation
IEP meetings are to be scheduled at a mutually agreed upon time and place. The school should work with the parent
to reach an amicable agreement about scheduling. If the parent/person acting as parent cannot be located the
school shall request an education advocate (See Chapter 1 for more information on identifying who may act as a
parent and appointing an educational advocate).
The school must take whatever action is necessary to ensure the parents understand the proceedings at the IEP
meeting, including arranging for an interpreter for parents who are deaf or whose native language is other than
English (K.A.R. 91-40-17(d); 34 C.F.R. 300.322(e)).
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If neither parent is able to physically attend the IEP meeting, the parent and the school may agree to use alternative
means of participation, such as video conferences and individual or conference telephone calls (K.S.A. 72-987(b)(1);
K.A.R. 91-40-17(c); 34 C.F.R. 300.322(c); 34 C.F.R. 300.328).
If the parents are unable to meet prior to the annual review date of the IEP and request that the current IEP be
extended for a short period of time until they can be involved in the meeting, the school may honor their request and
document why the IEP has not been reviewed and when the IEP will be reviewed and revised. This situation should
not be a common practice and to avoid this issue it is best to schedule IEP meetings far enough in advance of the
annual review date to allow for rescheduling if necessary.
Each parent must be provided a final copy of the IEP at no cost (K.A.R. 91-40-18(d); 34 C.F.R. 300.322(f)).
3.
Conducting the IEP Team Meeting Without a Parent
A school may conduct an IEP meeting without the parent(s) in attendance if the school, despite repeated attempts,
has been unable to contact the parents to arrange for a mutually agreed upon time or to convince the parents that
they should participate (K.A.R. 91-40-17(e)(1); 34 C.F.R. 300.322(d)). The school must keep a record of its attempts
to arrange a mutually agreed on time and place to secure the parents’ participation. The record shall include at least
two of the following:
•
Detailed records of telephone calls made or attempted, including the date, time, person making the calls,
and the results of those calls;
•
Detailed records of visits made to the parents’ home or place of employment, including the date, time,
person making the visit, and the results of the visits;
•
Copies of correspondence sent to the parents and any responses received; and
•
Detailed records of any other method attempted to contact the parents and the results of that attempt.
K.A.R. 91-40-17(e)(2)
Districts are encouraged to use their judgment about what constitutes a good-faith effort in making repeated attempts
to involve each family in the IEP process. At minimum, school districts must at least make two attempts, using at
least two methods, to involve the parents in the IEP team meeting.
C.
USING AN IFSP INSTEAD OF AN IEP
The IEP team must consider the use of an IFSP in place of an IEP for children with a disability ages 3-5. The IFSP would be
developed in accordance with all of the IEP procedures, but contain the content described in USC 1436, Part C. At the
discretion of the school, services may be provided for a 2-year-old child who is identified as eligible under Part B and who will
turn age 3 during the school year (K.S.A. 72-987(a)(2); K.A.R. 91-40-(c)(1)). (See Figure 4-2 in Appendix A for content of the
IFSP).
If the school and the parents agree to use an IFSP, the school must provide the child's parents a detailed explanation
of the differences between an IFSP and an IEP, and obtain written informed consent from the parents (K.A.R. 91-40-
16(c)(2)). (See Figure 4-2 in Appendix A for examples of comparison chart and consent form.)
If the school uses the IFSP, as stated above, the IFSP must include the natural environments statement required
under Part C (34 C.F.R. 303.18; 34 C.F.R. 303.344(d)((1)(ii)). The IFSP must also contain an educational
component that promotes school readiness and incorporates pre-literacy, language, and numeracy skills (34 C.F.R.
300.323(b)).
If the child has participated in the Part C Infant-Toddler Program prior to being determined eligible for early childhood
special education services, and already has an IFSP that is in effect, the IEP team may review the content of the
child’s current IFSP to see if it meets the needs of the child for one year, as identified through the Part B evaluation
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process. If it does, the IEP team may use the existing IFSP, but must ensure that all of the requirements for the
development of an IEP are met, including timelines for development and implementation, and designation of a new
current implementation date for the IFSP. If the current IFSP does not meet the needs of the child for one year, the
IEP team, including the parent, will develop a new IFSP, or IEP, for the child.
D. WHEN THE IEP/IFSP MUST BE IN EFFECT
1.
For Children Ages 3-21
An IEP must be developed within 30 calendar days of a determination that the child needs special education and
related services and must be implemented within 10 school days after written parent consent is granted for the
services in the IEP or Individualized Family Service Plan (IFSP) unless reasonable justification for a delay can be
shown. It is important to keep in mind the requirements of IEP development and implementation of the IEP are both
part of the 60 school day timeline of initial evaluation. In addition, the school is required to ensure that an IEP or
IFSP is in effect at the beginning of each school year for each child with an exceptionality (K.S.A. 72-987(a)(1);
K.A.R. 91-40-8(h)(i); K.A.R. 91-40-16(b)(1)(2)(3); 34 C.F.R. 300.323(a)(c)).
2.
For Children Ages 3-5
Each school district must make FAPE available to all eligible children by their third birthday, or age 2 during the
school year in which they turn age 3. An IEP or IFSP must be developed and implemented in accordance with
federal and state laws and regulations. If a child’s birthday occurs during the summer, the child’s IEP team must
determine the date when services under the IEP or IFSP will begin (K.S.A. 72-987(a)(2)(A)).
Many children who have participated in Part C Infant-Toddler services transition to early childhood special education
services by their 3
rd
birthday. Each child must be identified as eligible through a Part B initial evaluation prior to
receiving services at age 3.
For a child who is transitioning into the Part B early childhood special education services from the Part C early
intervention services, the school is required to ensure that:
•
the child is determined eligible under Part B requirements;
•
an IEP or IFSP is in effect by the child’s 3
rd
birthday;
•
if a child’s 3rd birthday occurs during the summer, the child’s IEP team must determine the date when
services will begin, but
not later than the beginning of the school year following the 3
rd
birthday; and
•
A representative of the district will participate in transition planning conferences arranged by the Part C
program. (K.A.R. 91-40-2(b))
Federal Regulation:
Sec. 300.323. When IEPs must be in effect.
(b) IEP or IFSP for children aged three through five.
(1) In the case of a child with a disability aged three through five (or, at the discretion of the SEA, a two-year-old child with a disability
who will turn age three during the school year), the IEP Team must consider an IFSP that contains the IFSP content (including the natural
environments statement) described in section 636(d) of the Act and its implementing regulations (including an educational component that
promotes school readiness and incorporates pre-literacy, language, and numeracy skills for children with IFSPs under this section who are
at least three years of age), and that is developed in accordance with the IEP procedures under this part. The IFSP may serve as the IEP of
the child, if using the IFSP as the IEP is--
(i) Consistent with State policy; and
(ii) Agreed to by the agency and the child’s parents.
(2) In implementing the requirements of paragraph (b)(1) of this section, the public agency must--
(i) Provide to the child’s parents a detailed explanation of the differences between an IFSP and an IEP; and
(ii) If the parents choose an IFSP, obtain written informed consent from the parents.
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Federal Part C Regulations:
Sec. 303.12
(b) Natural environments. To the maximum extent appropriate to the needs of the child, early intervention services must be provided in natural
environments, including the home and community settings in which children without disabilities participate.
Sec. 303.18 Natural environments.
As used in this part, natural environments means settings that are natural or normal for the child's age peers who have no disabilities.
Sec. 303.344. Content of an IFSP
d) Early intervention services. (1) The IFSP must include a statement of the specific early intervention services necessary to meet the unique
needs of the child and the family to achieve the outcomes identified in paragraph (c) of this section, including--
(i) The frequency, intensity, and method of delivering the services;
(ii) The natural environments, as described in Sec. 303.12(b), and Sec. 303.18 in which early intervention services will be provided, and a
justification of the extent, if any, to which the services will not be provided in a natural environment;
Kansas Statute:
K.S.A. 72-987
. Individualized education program or family service plan; contents; development; duties of IEP team.
(a) (1) Except as specified in provision (2), at the beginning of each school year, each agency shall have an individualized education program
in effect for each exceptional child.
(2) (A) In the case of a child with a disability aged three through five and for two year-old children with a disability who will turn age
three during the school year, an individualized family service plan that contains the material described in 20 U.S.C. 1436, and that is
developed in accordance with this section, may serve as the IEP of the child if using that plan as the IEP is agreed to by the agency
and the child’s parents.
(B) In conducting the initial IEP meeting for a child who was previously served under part C of the federal law, an agency, at the
request of the parent, shall send an invitation to attend the IEP meeting to the part C services coordinator or other representatives of
the part C system to assist with the smooth transition of services.
Kansas Regulations:
K.A.R. 91-40-2. Free appropriate public education (FAPE)
(b)(1) Each agency shall make FAPE available to each child with a disability residing in its jurisdiction beginning not later than the child’s
third birthday.
(2) An IEP or IFSP shall be in effect by the child’s third birthday, but, if that birthday occurs during the summer when school is not in
session, the child’s IEP team shall determine the date when services will begin.
(3) If a child is transitioning from early intervention services provided under part C of the federal law, the agency responsible for providing
FAPE to the child shall participate in transition planning conferences for the child.
K.A.R. 91-40-8. Evaluations
(h) Unless an agency can justify the need for a longer period of time or has obtained written parental consent to an extension of time, the
agency shall complete the following activities within 60 school days of the date the agency receives written parental consent for evaluation of
a child:
(1) Conduct an evaluation of the child;
(2) Conduct a meeting to determine whether the child is an exceptional child and, if so, to develop an IEP for the child. The agency
shall give notice of this meeting to the parents as required by K.A.R. 91-40-17(a); and
(3) Implement the child’s IEP in accordance with K.A.R. 91-40-16.
(i)
In complying with subsection (h) of this regulation, each agency shall ensure that an IEP is developed for each exceptional child within
30 days from the date on which the child is determined to need special education and related services.
K.A.R. 91-40-16. IEP Requirements; periodic IEP review.
(b) Except as otherwise provided in subsection (c), each agency shall ensure that the following conditions are met:
(1) An IEP is in effect before special education and related services are provided to an exceptional child.
(2) Those services to which the parent has granted written consent as specified by law are implemented not later than 10 school days after
parental consent is granted unless reasonable justification for a delay can be shown.
(3) An IEP is in effect for each exceptional child at the beginning of each school year.
(4) The child’s IEP is accessible to each regular education teacher, special education teacher, related service provider, and other service
provider who is responsible for its implementation.
(5) Each teacher and provider described in paragraph (4) of this subsection is informed of the following:
(A) That individual's specific responsibilities related to implementing the child’s IEP; and
(B) the specific accommodations, modifications, and supports that must be provided for the child in accordance with the IEP.
(c)(1) If an agency and a child’s parents agree, an IFSP that meets the requirements of the federal law and that is developed in accordance
with this article may serve as the IEP of a child with a disability who is two years old but will reach three years of age during the next
school year or who is three, four, or five years of age.
(2) Before using an IFSP as an IEP each agency shall meet the following requirements:
(A) The agency shall provide to the child’s parents a detailed explanation of the differences between an IFSP and an IEP.
(B) If the parent chooses an IFSP, the agency shall obtain written consent from the parents for use of the IFSP as the child’s IEP.
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E. DEVELOPMENT OF THE IEP
An IEP that promotes challenging expectations and ensures participation and progress in the general education
curriculum is one that focuses on local and state curricular content standards and related assessments. Thus,
statements of present levels of academic achievement and functional performance (PLAAFPs), measurable annual
goals, special education and related services, and the ongoing monitoring and evaluation of IEPs, should relate to
State and local standards. It is also important that the IEP address each of the child’s other educational needs
identified in the PLAAFP that result directly from the child’s exceptionality. For example, measurable annual goals for
instruction in Braille may be appropriate for children who are blind, even though Braille is not included in the general
education curriculum. Likewise, measurable annual goals for instruction in sign language may be appropriate for
children who are deaf, even though sign language may not be part of the general education curriculum. Annual goals
in academic content areas will be drawn from the general education curriculum. Other annual goals may be based
on standards that are appropriate to meet the child’s unique needs that result from the exceptionality and that allow
the child to participate and progress in the general curriculum. A checklist for IEP content has been developed to
assist in ensuring all necessary content has been included (See Appendix A, Figure 4-7, IEP Content Checklist).
1.
IEP Team Considerations
In order to assure that the IEP team addresses all of the special education and related service needs of the child
there are several special factors that the IEP team
must consider in the development of the IEP (K.S.A. 72-987(d)).
These considerations must be documented but there is no requirement on where they are documented. Some
districts may choose to include documentation of these considerations within the IEP while others may choose to
keep documentation separately and maintain it in the student’s file.
a.
Strengths of the Child
The IEP team should be aware of the strengths of the child, and utilize those strengths during the
development of the IEP to assist in addressing the child’s needs where possible. The strengths should be
included in the present levels of academic achievement and functional performance of the child, as
identified through the evaluation.
b.
Concerns of the Parents for enhancing the education of their child
Parents should have the opportunity to express their concerns for enhancing the education of their child
during the IEP meeting. This provides the parents an opportunity to share with the school what they see as
the most important in meeting the needs of their child. The concerns of the parents must be considered by
the IEP team but do not obligate the IEP team.
c.
Results of the Initial Evaluation or Most Recent Reevaluation
In developing each child’s IEP, the IEP team must consider the results of the initial or most recent
reevaluation of the child. This must include a review of valid evaluation data and the observed needs of the
child resulting from the evaluation process and, as appropriate, any existing data, including data from
current classroom-based, local and State assessments.
d.
The Academic, Developmental and Functional Needs of the Child
In developing each child’s IEP, the IEP team is required to consider the academic, developmental, and
functional needs of the child. A child’s performance on State or district assessments logically would be
included in the IEP team’s consideration of the child’s academic needs. In addition, as part of an initial
evaluation or reevaluation, the IEP team must review existing evaluation data, including data from current
classroom based, local, and State assessments. The consideration of State and district-wide assessment
programs is consistent with the emphasis on the importance of ensuring that children with disabilities
participate in the general curriculum and are expected to meet high achievement standards. Effective IEP
development is central to helping these children meet these high standards
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e.
Behavioral Concerns
In the case of a child whose behavior impedes the child’s learning or that of others, the IEP team must
consider the use of positive behavioral interventions and supports, and other strategies, to address the
behavior. The focus of behavioral interventions and supports in the IEP is prevention of the behavior, not
just provision for consequences subsequent to the behavior. This means that the team will need to attempt
to identify the function of the behavior, usually through a functional behavioral assessment, and develop
strategies to prevent the behavior from occurring again in the future.
The positive behavioral interventions and supports could be implemented through the IEP annual goals,
program modifications, or a behavioral intervention plan (BIP). If a behavioral intervention plan is developed
by the IEP team, it becomes part of the IEP and any changes to it would require a meeting of the IEP team
to consider the proposed changes to the plan. If the BIP is developed by a building based problem solving
team or other group of individuals other than the IEP team it does not have to be included in the IEP.
Special education laws and regulations place a strong emphasis on supports and interventions, including
positive behavior interventions and supports that are scientifically research-based. Scientifically based
research means that the interventions or supports must be accepted by a peer-reviewed journal or approved
by a panel of independent experts through a comparably rigorous, objective, and scientific review. (Federal
Register, August 14, 2006, p. 46683) These strategies are designed to foster increased participation of
children with exceptionalities in general education environments or other less restrictive environments, not
to serve as a basis for placing children with exceptionalities in more restrictive settings. No child should be
denied access to special education services and the opportunity to progress in the general education
curriculum. (See Appendix A, Figure 13-7, FBA)
f.
Limited English Proficiency
The IEP team must consider the language needs of the child who has limited English proficiency as those
needs relate to the IEP including the impact of how service provides communicate with the student and
progress is measured.
g.
Braille
(only for Children with Disabilities)
For a child who is blind or visually impaired, the IEP team must consider instruction in Braille. The use of
Braille should be provided unless the IEP team determines, after an evaluation of the child’s reading and
writing skills, needs, and appropriate reading and writing media (including an evaluation of the child’s future
needs for instruction in Braille or the use of Braille), that instruction in Braille or the use of Braille is not
appropriate for the child. If Braille is to be taught as a method of accessing printed material, it is to be
indicated in the IEP.
h.
Communication Needs
The communication needs of all students with exceptionalities must be considered on each IEP. Depending
on whether the student is Deaf/Hard of Hearing or has other exceptionalities will impact which
considerations must be made.
(i)
For Children with Exceptionalities
It is required that the IEP team considers the communication needs of each child. This consideration
must include the unique communication needs of all children in order to help them achieve their
educational goals.
(ii)
For Children who are Deaf/Hard of Hearing
(only for Children with Disabilities)
For a child who is deaf or hard of hearing, the IEP team must consider the child’s language and
communication needs, including the opportunity for direct communication with peers and professional
personnel in the child’s language and communication mode, as well as academic level, and full range of
needs including opportunities for direct instruction in the child’s language and communication mode. It
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is important that the school recognize that this consideration is not an administrative decision for only
one particular type of sign language interpreting to be available, nor is it a parental decision based on
parental choice. Instead, it is an IEP team decision based on the unique communication needs of each
child. The school must provide the communication services that each child requires.
i.
Assistive Technology
(only for Children with Disabilities)
The IEP team must determine whether an individual child needs an assistive technology (AT) device or
service, and if so, the nature and extent to be provided. It is possible that an assistive technology evaluation
will be required to determine if the child would need an assistive technology service and/or assistive
technology device. Any needs identified should be reflected in the content of the IEP, including, as
appropriate, the instructional program and services provided to the child. According to current Medicaid
reimbursement rules, if an AT device is purchased with Medicaid-funds (or from private insurance), it
belongs to the family.
j.
Extended School Year Services
(only for Children with Disabilities)
For children with disabilities, the IEP team must consider each individual child’s need for extended school
year (ESY) services during time periods when other children, both disabled and nondisabled, normally
would not be served. If ESY is determined to be necessary to enable the child to benefit from his or her
education, then the type and amount of special education services to be provided, including frequency,
location and duration, are documented in the IEP. Schools must not limit the availability of ESY services to
children in particular categories of disabilities, or limit the type, amount, or duration of these necessary
services. Kansas law does not allow ESY services for children identified as gifted.
For an eligible child who will turn 3 during the summer, the IEP team must make the determination of the
need for ESY services during that summer. (See Chapter 5 for more information on ESY.)
k.
Notification to Kansas Rehabilitation Services
(only for Students with Disabilities)
When a student turns 16, the IEP team must determine if the needs of the student warrant the school’s
notifying the district office of Kansas Rehabilitation Services (KRS) (K.S.A. 75-53, 101). If the student may
have any need for vocational rehabilitation services regardless of whether the student is headed directly to
employment or into education/training, notification to KRS may be appropriate. This is only a notification
and not a referral for services. If notification is determined not to be necessary, the IEP team must
document reasons for that decision. When making this notification, it is important for the school to
remember that the notification contains personally identifiable information regarding the student, and
parental consent to disclose confidential information is required.
l.
Physical Education Needs
(only for Children with Disabilities)
The IEP team must consider the physical education needs of the child, which may need to be adapted
physical education services. If adapted physical education is required, it should be addressed in the IEP
(K.A.R. 91-40-3(c)).
m.
Potential Harmful Effects
(only for Children with Disabilities)
The IEP team must consider the potential harmful effects of the placement of a student with a disability no
matter where on the continuum the child is placed. This consideration must include both the child and the
quality of the services the student needs (K.A.R. 91-40-21(f)).
(For more information, see Chapter 5, Special Education and Related Services and See Appendix A, Figure 4-4, IEP
Team Considerations.)
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Kansas Statute:
K.S.A. 72-987. IEP team considerations
(d) In developing each child’s IEP, the IEP team shall consider:
(1) The strengths of the child and the concerns of the parents for enhancing the education of their child;
(2) the results of the initial evaluation or most recent evaluation of the child;
(3) the academic, developmental and functional needs of the child;
(4) in the case of a child whose behavior impedes the child’s learning or that of others, the use of positive behavioral interventions and
supports and other strategies to address that behavior;
(5) in the case of a child with limited English proficiency, the language needs of the child as such needs relate to the child’s IEP;
(6) in the case of a child who is blind or visually impaired, provide for instruction in Braille and the use of Braille unless the IEP team
determines, after an evaluation of the child’s reading and writing skills, needs, and appropriate reading and writing media, including an
evaluation
of the child’s future needs for instruction in Braille or the use of Braille, that instruction in Braille or the use of Braille is not appropriate
for the child;
(7) the communication needs of the child, and in the case of a child who is deaf or hard of hearing, consider the child’s language and
communication needs, opportunities for direct communications with peers and professional personnel in the child’s language and
communication mode, academic level, and full range of needs, including opportunities for direct instruction in the child’s language and
communication mode; and
(8) whether the child requires assistive technology devices and services.
K.S.A. 75-53,101. Same; compilation of background information.
(a) If the secretary provides services under this act and staff is
available, an individual with disabilities who has been receiving special education under the provisions of K.S.A. 72-961
et seq.
, and
amendments thereto, and public law 101-476 (the individuals with disabilities education act) shall receive transition planning services
upon attaining the age of 16 years. The local education authority which is responsible for the education of a person, with the consent of
the person or the person's parent or guardian, shall notify the secretary of the name and address of such person, the record of the special
education services being provided to such person and the expected date of termination of such services.
(b) Within 30 days after such notification, the secretary shall begin to prepare a case file on such person consisting of all
available information relevant to the questions of whether such person has a disability and what services may be necessary or appropriate
upon termination or graduation. The local education authority, with the consent of such person or the person's parent or guardian, shall
provide the secretary with copies of relevant current portions of the record of such person, which shall be included in such person's case
file. The secretary also shall provide an opportunity for the submission by or on behalf of such person, of information relative to such
person's training needs and all information so provided shall be included in such person's case file.
History:
L. 1992, ch. 129, § 3; July
1.
Kansas Regulations:
K.A.R. 91-40-18. IEP development and content
(a) In developing or reviewing the IEP of any exceptional child, each agency shall comply with the requirements of K.S.A. 72-987 and
amendments thereto, and, as appropriate, shall consider the results of the child's performance on any general state or districtwide
assessment programs.
(b) If, as a result of its consideration of the special factors described in K.S.A. 72-987(c) and amendments thereto, an IEP team determines that
a child needs behavioral interventions and strategies, accommodations, assistive technology devices or services, or other program
modifications for the child to receive FAPE, the IEP team shall include those items in the child’s IEP.
(c) Each agency shall ensure that the IEP of each exceptional child includes the information required by K.S.A. 72-987(b) and
amendments thereto.
(d) Each agency shall give the parent a copy of the child's IEP at no cost to the parent.
(e) At least one year before an exceptional child reaches 18 years of age, the agency providing services to the child shall ensure that the child’s
IEP includes a statement the student has been informed of rights provided in the federal law, if any, that will transfer to the child on
reaching 18 years of age.
2.
Content of the IEP
Evaluation information for a child with an exceptionality must identify each of the child's specific needs that result
from the exceptionality, provide baseline information and describe how the exceptionality affects the child’s
participation and progress in the general education curriculum. Utilizing baseline data established in the present
levels of academic achievement and functional performance (PLAAFPs), the IEP team must develop
measurable annual goals, including academic and functional goals that meet the child’s needs and enable the
child to be involved in and make progress in the general education curriculum. The special education, related
services, supplementary aids and services, program modifications, and supports for school personnel described
in the IEP must reflect the child's needs in order to ensure he or she receives educational benefit.
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a.
Present Levels of Academic Achievement and Functional Performance
Present levels of academic achievement and functional performance (PLAAFPs) are not new to IDEA 2004,
in previous laws they have been called present levels of educational performance or PLEPs. The
requirements of a present level statement is not any different, however, the name was changed slightly to
emphasize the importance of issues beyond academics only.
The IEP for each exceptional child shall include a statement of the child’s present levels of academic
achievement and functional performance, including:
1. how the child’s disability or giftedness affects the child’s involvement and progress in the general
education curriculum;
2. for preschool children, as appropriate, how the disability affects the child’s participation in appropriate
activities; and
3. for those children with disabilities who take alternate assessments aligned with alternate achievement
standards, a description of benchmarks or short-term objections (K.S.A. 72-987(c)(1)).
The PLAAFPs summarize the child’s current performance and provide the foundation upon which all other
decisions in the child’s IEP will be made. The PLAAFPs identify and prioritize the specific needs of a child
and establish a baseline from which to develop meaningful and measurable goals. For a PLAAFP to be
complete it needs to include information about:
1.
Current Academic Achievement and Functional Performance
: This is the broadest type of
information that is included in the present level statement. It helps the team to begin to sort through
information and data to determine how well the child is performing and to make note of additional
issues outside of academic and functional behavior that have a direct impact upon how well the child
performs in school. This communicates a more global understanding of the child. This might include
information such as standardized assessments, learning rate, social issues, vocational interests,
independent living skills, and other interests, strengths, and weaknesses.
2.
Impact of Exceptionality
upon ability to access and progress in the general curriculum: In addition to
describing the child’s current performance (academics and functional areas), PLAAFPs must describe
how the exceptionality affects the child’s involvement and progress in the general curriculum. The
present level statement must also include more specific information that clearly describes how the
child’s exceptionality impacts (or manifests itself) within the general education curriculum that prevents
them from appropriately accessing or progressing. By completing this statement it will make it clear to
the team what the child’s needs are and which ones are of highest priority to be addressed.
3.
Baseline:
Baseline data provides the starting point for each measurable annual goal, so there must be
one baseline data point for every measurable annual goal on the child’s IEP. Baseline data in the
PLAAFPs are derived from locally developed or adopted assessments that align with the general
education curriculum
.
Examples of baseline data include percent of correct responses, words read
correctly, number of times behavior occurs, and mean length of utterances. Other issues important in
collecting baseline data are the understanding that any goal written will have the same measurement
method as was used in collecting its baseline data. Also, when selecting baseline data it needs to be
(a) specific – to the skill/behavior that is being measured, (b) objective – so that others will be able to
measure it and get the same results, (c) measurable – it must be something that can be observed,
counted, or somehow measured, and (d) able to be collected frequently – when progress reports are
sent out the progress of the student toward the goal will have to be reported using the same
measurement method as used to collect the baseline data. Non-examples of this would be self-esteem
or social awareness without a more specific description of what it means.
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Local school districts have a variety of places to document these components. In the IEP there is no single
place these components must be documented and the law explicitly states that information included in one
part of the IEP does not have to be duplicated in another part. So when looking at local forms you may find
baseline data in the main section of the present levels or in boxes along side the measurable annual goals.
Both are acceptable and legal as long as the data they contain is correct.
For preschool children, the PLAAFPs describe how the disability affects the child's participation in
appropriate activities. The term “appropriate activities” includes activities that children of that chronological
age engage in as part of a preschool program or in informal activities. Examples of appropriate activities
include social activities, pre-reading and math activities, sharing-time, independent play, listening skills, and
birth to 6 curricular measures. Federal regulations at 34 C.F.R. 300.323(b) indicate that preschool
programs for children with disabilities should have an educational component that promotes school
readiness and incorporates pre-literacy, language, and numeracy skills. Teachers should become familiar
with the curriculum standards for kindergarten to know what is expected at that age and to give direction for
learning activities and from future early childhood standards.
For children ages 14 and older (or younger if appropriate), the PLAAFPs also describe the child’s transition
needs in the areas of education/training, employment and where appropriate independent living skills.
The IEP team should consider the following questions when writing the PLAAFPs:
•
In areas of concern, what is the child's present level of performance in relationship to district standards
and benchmarks in the general education curriculum (or to the extended standards)?
•
In areas of concern, what is the child's present level of performance in relationship to level of
performance that will be required to achieve the postsecondary goals?
•
Are there functional areas of concern related to the disability not reflected in the general education
curriculum (e.g., self-care skills, social skills, classroom survival, etc.)?
•
What is the degree of match between the skills of the child and the instructional environment?
•
What strengths of the child are relevant to address the identified concerns?
Examples of PLAAFP Statements:
Example of Current Academic Achievement and Functional Performance:
Jeremiah is a 9 year old fourth grade student with average ability, whose achievement testing
shows relative strength in reading and weakness in math. Jeremiah is reading at grade level and
has good comprehension. He likes to read and he also enjoys science activities. His most recent
CBM testing showed that he read 111 words per minute, which is at the 65 percentile on local
norms. Math CBM testing showed that he scored 9 digits correct in a two minute timing, which is at
the 17 percentile on district fourth grade norms. Mom reports that he brings home assignments
requiring reading, but he forgets his math homework.
Example of Impact of Exceptionality:
Jeremiah has difficulty paying attention during class time. His inability to stay on task and follow
directions is negatively affecting his classroom performance. When asked to begin work, he often
looks around as if he does not know what to do. Observations indicate he often looks to peers for
directions, rather than attending to the teacher. This occurs in both classes that he likes and in
those he does not like. When the teacher goes to him to provide individual help, he refuses help
and insists he understands what to do, but then he often completes the assignment incorrectly.
Jeremiah also needs to work on staying in his personal space and not invading others’ personal
space. This is exhibited when he swings a backpack or his arms around in a crowded room or
while walking down the hall. Observations of Jeremiah show this is also an issue during games in
PE class and in unstructured activities during recess, such as playing tag. He is unable to
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appropriately interact with others. He sometimes stands very close to other students, squaring up
to them, in a posture that is intimidating to younger students, and challenging to those his own age.
He has also been observed to inappropriately touch other students. These behaviors have been
especially problematic during special out-of-school activities, and Jeremiah has not been allowed
to attend the last two class field trips, because of the severity of problems on earlier field trips.
Example of Baseline Data:
Teachers estimate that Jeremiah inappropriately invades other's space at least 50% of the time
during unstructured activities. Observations using interval recording indicate that during recess he
invaded others’ space (using defined behavioral criteria) during 70% of the observation intervals.
During classroom time, he was out of his seat and inappropriately close to another student during
35% of the observation intervals. Total off-task behavior during classroom observation was 60% of
observed intervals.
Other Examples of PLAAFP Statements:
Example of Current Academic Achievement and Functional Performance:
In his general education 8
th
grade math classroom, Mike is currently turning in about half of his
assignments, and only about a third of those assignments are completed. Accuracy of his turned-
in work fluctuates markedly. Because of his poor assignment completion, Mike received a mid-
quarter failing warning letter. Mike’s completion of assignments in other curricular areas is not a
concern.
Example of Impact of Exceptionality:
Stephanie, a third grader, when given a sixth grade-level mixed math operations probe that
includes fractions, decimals, and percents, is able to correctly solve 87% of all problems presented.
This means that Stephanie is approximately 3 years ahead of her typical third grade peers in math
calculation. In areas of math other than calculation, Stephanie has mastered most of the fourth
grade but very few of the fifth grade math standards. She is not yet able to solve one-step
equations with one variable and she is not yet able to use function tables to model algebraic
relationships. She has learned to make one but not two transformations in the area of geometry.
In probability, she has not yet learned how to use fractions to represent the probability of an event.
Example of Baseline Data:
Todd, a fourth grader, currently reads 85 words per minute with 5 errors when given a first
semester, second grade-level passage. According to district norms, Todd is reading at the 5
th
percentile for fourth graders in the fall.
b.
Measurable Annual Goals
Measurable annual goals are descriptions of what a child can reasonably be expected to accomplish within
a 12-month period with the provision of special education (specially designed instruction) and related
services. When selecting areas of need to address through annual goals, the IEP team’s focus should be
on selecting goals from the most highly prioritized needs from the PLAAFPS. For curricular needs, the IEP
team should consider identifying goals from the standards and benchmarks of the local district or from the
Kansas Extended Standards. To accomplish this, it is necessary that the child's performance be measured
against the district or state standards, benchmarks, and indicators. As districts develop assessments to
measure their standards, all children need to be included.
Measurable annual goals must be related to meeting the child’s needs that result from the child’s
exceptionality, to enable the child to be involved and progress in the general or advanced curriculum. In
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addition, they must meet each of the child’s other educational needs that result from the child’s
exceptionality (K.S.A. 72-987(c)(2)). Annual goals are not required for areas of the general curriculum in
which the child’s exceptionality does not affect the ability to be involved and progress in the general
curriculum. The annual goals included in each child’s IEP should be individually selected to meet the
unique needs of the individual child. The goals should not be determined based on the category of the
child’s exceptionality or on commonly exhibited traits of children in a category of exceptionality. Additionally,
a student taking the Reading KAMM must have an IEP goal in the area of reading. A student taking the
Mathematics KAMM must have an IEP goal in the area of math (see section “e. Participation in State
Assessment and District-wide Assessment).
There is a direct relationship between the measurable annual goal, baseline data and the needs identified in
the PLAAFPs. Because the PLAAFPs are baseline data for the development of measurable annual goals,
the same criteria used in establishing the PLAAFPs must also be used in setting the annual goal.
Identified Need
from
PLAAFP
Baseline Data
from
PLAAFP
Currently reads 85 words
per minute with 5 errors
when given a first
semester, second grade-
level passage
Todd, a 4
th
grader, is
reading at the 5
th
percentile
based on district 4
th
grade
norms.
In 36 weeks, Todd will read
120 words per minute with
0 errors when given a
second semester, second
grade level passage.
Measurable Annual Goal
Four critical components of a well-written goal are:
•
Timeframe
is usually specified in the number of weeks or a certain date for completion. A year is the
maximum allowed length for the timeframe.
o
In 36 instructional weeks…
o
By November 19, 2008…
o
By the end of the 2008-2009 school year…
•
Conditions
specify the manner in which progress toward the goal is measured. Conditions are dependent
on the behavior being measured and involve the application of skills or knowledge.
o
When presented with 2nd-grade-level text…
o
Given a mixed, 4th-grade-level math calculation probe…
o
Given a story prompt and 30 minutes to write…
•
Behavior
clearly identifies the performance that is being monitored, usually reflects an action or can be
directly observed, and is measurable.
o
Sarah will read…
o
Claude will correctly solve…
o
Mary will score…
•
Criterion
identifies how much, how often, or to what standards the behavior must occur in order to
demonstrate that the goal has been reached. The goal criterion specifies the amount of growth the child is
expected to make by the end of the annual goal period.
o
96 words per minute with 5 or fewer errors.
o
85% or more correct for all problems presented.
o
4 or better when graded according to the 6-trait writing rubric.
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Well written measurable annual goals will pass the “Stranger Test.” This test involves evaluating the goal to
determine if it is written so that a teacher who does not know the child could use it to develop appropriate
instructional plans and assess the child’s progress.
The number of goals addressed in the IEP depends on the child's needs. Prerequisite skills, immediate
needs, and general applicability are all factors to consider when establishing priorities. Parents, general
education teachers, and children are also essential sources of information when setting priorities.
If the child needs accommodations or modifications in order to progress in an area of the general
curriculum, the IEP does not need to include a goal for that area; however the IEP would need to specify the
modification and accommodations. Each IEP must have at least one measurable annual goal.
c.
Benchmarks or Short-Term Objectives (disabilities only)
Benchmarks or Short-Term Objectives are only required on the IEP of a child with a disability who takes an
alternate assessment aligned to alternate achievement standards (K.S.A. 72-987(c)(1); 34 C.F.R.
320(a)(2)(ii)). This means that only children who take the Kansas Alternate Assessment (KAA) would be
required to have short-term objectives or benchmarks on their IEPs. This requirement would apply to
preschool children and children with disabilities in kindergarten through grade two only if these children are
assessed in a State or district-wide assessment program based on alternate achievement standards.
However, this requirement would not prohibit the use of benchmarks or short-term objectives to be used to
measure progress toward meeting the measurable annual goals for any child with an exceptionality (Federal
Register, August 14, 2006, p. 46663).
i.
Benchmarks (Milestones or Major Milestones)
Benchmarks are major milestones that describe content to be learned or skills to be performed in
sequential order. They establish expected performance levels that coincide with progress reporting
periods for the purpose of gauging whether a child’s progress is sufficient to achieve the annual goal. It
is important to note that the term “benchmark,” as it is used in the IEP, should not be confused with the
term “benchmark” as it is used in state and local standards. In the curricular standards, a benchmark is
a specific statement of what a child should know and be able to do. In the context of IEPs, benchmarks
measure intermediate progress toward the measurable annual goal.
Example PLAAFP Statement, Measurable Annual Goal, and Benchmarks for Student taking the
KAA (Kansas Alternate Assessment)
PLAAFP: Jennifer uses the BIGmack switch or step by step when it is presented, but she uses these
devices only with adults, and not with her peers. She requires physical prompting to use the devices at
least 90% of the time. She does not acknowledge the presence of peer communicative partners in an
observable manner.
Measurable Annual Goal 1:
Within 36 educational weeks, Jennifer will acknowledge the presence of a peer communicative partner
as evidenced by gestures, changes in body position, or vocalizations, and participate in a familiar
structured turn-taking communicative routine with physical prompting in at least one school setting.
Benchmarks:
1. In 9 instructional weeks, when joined by a peer, Jennifer will acknowledge the presence of a peer
communicative partner as evidenced by gestures, changes in body position, or vocalizations.
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2. In 18 instructional weeks, when joined by a peer, Jennifer will acknowledge the presence of a peer
communicative partner as evidenced by gestures, changes in body position, or vocalizations, and
will participate in a structured turn-taking activity with a peer when physically prompted by an adult.
3. In 27 instructional weeks, while participating in a familiar, structured turn-taking activity with a peer,
Jennifer will recognize when it is appropriate to take her turn and respond to this opportunity as
evidenced by gestures, changes in body position, vocalizations, or actions, and by activating a
voice-output device at the appropriate time with physical prompts from an adult.
ii.
Short-Term Objectives (Intermediate Steps)
Short-term objectives are measurable, intermediate steps between a child's baseline data in the present
level and the annual goal, with the conditions under which the skill is to be performed, the behavior to
be observed, and the criteria for success
.
A short-term objective follows the same pattern of the goal,
with a shorter timeframe and intermediate criteria to be attained. The goal and short-term objectives
establish how child outcomes will be measured. Diagnostic assessment will provide the information
needed to develop an instructional plan for achieving the goals and objectives.
Example PLAAFP Statement, Measurable Annual Goal, and Benchmarks for Student taking the
KAA (Kansas Alternate Assessment)
PLAAFP: Jennifer has significant difficulty with motor strength and endurance. Currently, Jennifer is
able to sit in a classroom chair while engaged in a classroom activity for only 4 minutes.
Measurable Annual Goal 3:
In 36 instructional weeks, Jennifer will sit in a classroom chair for 20 minutes while engaged in a
classroom activity.
Short-Term Objectives:
1. In 9 instructional weeks, Jennifer will sit in a classroom chair for 8 minutes while engaged in a
classroom activity.
2. In 18 instructional weeks, Jennifer will sit in a classroom chair for 12 minutes while engaged in a
classroom activity.
3. In 27 instructional weeks, Jennifer will sit in a classroom chair for 16 minutes while engaged in a
classroom activity.
d.
Measuring and Reporting Progress on Annual Goals
Once the IEP team has developed measurable annual goals for a child, the team must include a description
of how the child’s progress toward meeting the annual goals will be measured. This measure of progress
will enable parents, children, and educators to monitor progress during the year, and, if appropriate, to
revise the IEP to be consistent with the child’s instructional needs. The idea is to use progress monitoring
information in a formative way, to help with decision-making about instructional changes that may be
needed. If a measurable annual goal is written correctly with the 4 components (behavior, criteria, condition
and timeframe) the requirement of how progress toward the goal is measured is contained within the goal
and no additional information is required.
The IEP must include a description of when parents will be provided periodic reports about their child’s
progress toward meeting the annual goals. An example might be through the use of quarterly or other
periodic reports concurrent with the issuance of district report cards (K.S.A. 72-987(c)(3); 34 C.F.R.
300.320(a)(3)). The reporting may be carried out in writing or through a meeting with the parents (including
documentation of information shared at the meeting); whichever would be a more effective means of
communication. Whatever the method chosen, child progress toward the goals must be monitored in the
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method indicated on the IEP and progress reports should include a description of the child’s progress
toward his/her measurable annual goals.
e.
Participation in State Assessments and District-Wide Assessments (disabilities only)
The IEP team must make a decision about how the child with a disability will participate in State
assessments and district-wide assessments. There are three options for each content area available to
children with disabilities for the Kansas State Assessments. The IEP team is to make the decision which
assessment is appropriate for the child for each curricular area being assessed in that child’s grade level
during the upcoming IEP year. These options include the:
1. Kansas State Assessment,
2. Kansas Assessment with Modified Measures (KAMM), and
3. Kansas Alternate Assessment (KAA).
The intent is that all children will be assessed and will be part of the State and district accountability
systems. The IEP team should apply the eligibility criteria for the KAMM and KAA to help determine which
assessment is the most appropriate for the child. The eligibility criteria for each assessment are included in
the Examiners Manual for each assessment available online at
www.ksde.org. The eligibility criteria for the
KAMM and KAA are also available online at
www.kansped.org on the Assessments page, under either the
KAMM or Kansas Alternate Assessment.
If the IEP team determines that the child shall take the KAMM or KAA, the IEP must include a statement of:
a) which assessment the child will participate in,
b) why the child cannot participate in the regular assessment and
c) why the particular alternate assessment selected is appropriate for the child (K.S.A. 72-987(c)(6)).
A student taking the Reading KAMM must have an IEP goal in the area of reading. A student taking
the Mathematics KAMM must have an IEP goal in the area of math.
Any student for whom the KAMM is
the most appropriate option for participating in a Kansas assessment is highly likely to need an IEP goal to
address significantly low academic skills, since “performance that is multiple years behind grade level
expectations” is a component of the eligibility criteria for the KAMM.
Goals on any student’s IEP should be based upon a student’s present levels of academic achievement and
functional performance (PLAAFPs) and consideration of the Kansas content standards. If a student meets
the eligibility criteria for the KAMM, that student is highly likely to need a goal or goals related to the content
standards. A student taking the KAMM may also need goals not related to the content standards (e.g.,
behavior, orientation and mobility, motor skills, etc.) In both the Kansas Reading Standards and the
Kansas Mathematics Standards, the wording of the standards is the same across grade levels. It is the
benchmarks and indicators that vary according to grade level, and which reflect the specific skills
appropriate for inclusion in a measurable goal. When considering specific skills and criteria for writing
measurable goals, teams need to take into account both on-grade level skills and developmentally important
prerequisite skills.
The State has identified allowable accommodations for State assessments for both general education and
special education children. These are listed in the Accommodations Manual available at
www.ksde.org or at
www.kansped.org . The Accommodations Manual provides information on accommodations appropriate for
classroom instruction and classroom assessment and allowable accommodations for Kansas State Assessments.
Most accommodations allowed for the Kansas general assessment are for
all
students, but certain
accommodations are designated as allowed for students with IEPs or 504 Plans only.
If a student with an IEP needs a read-aloud accommodation for the Kansas Assessments, that need must
be documented on the student’s IEP. The need for the read-aloud accommodation should be determined
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for each individual content area being assessed. However, if reading passages on the Kansas State
Reading Assessment is allowed on any student’s IEP, the student will then be counted as not participating.
In order to use the read-aloud accommodation on Kansas Assessments, the student must have the read-
aloud accommodation provided in the classroom on a regular basis (i.e. as an on-going practice), for both
instructional material and assessments/tests. Local districts must provide training for human readers
providing the read-aloud accommodation.
If a student has the read-aloud or any other accommodation listed
on his/her IEP, the student must receive that accommodation on the Kansas Assessment. If a student uses
an accommodation on Kansas Assessments that is not allowed, the test will be considered invalid and the
student will count against AYP participation.
Any accommodation regularly used in instruction should be used on classroom assessments for children
with IEPs. Individual school districts may establish their own policies for allowable accommodations for
district-wide assessments. All accommodations that are necessary in order for the child to participate in
State or district-wide assessments must be documented on the IEP.
For current information regarding the Kansas State Assessments see
www.ksde.org
or www.kansped.org
.
f.
Secondary Transition (ONLY for students with disabilities)
Beginning at age 14, and updated annually, the IEP must contain (1) appropriate measurable
postsecondary goals based upon age-appropriate transition assessments related to training/education,
employment and where appropriate, independent living skills; and (2) the transition services, including
appropriate courses of study, needed to assist the child in reaching the stated postsecondary goals; and (3)
beginning at age 16, or younger, if determined appropriate by the IEP team, a statement of needed
transition services for the child, including, when appropriate, a statement of the interagency responsibilities
or any needed linkages (K.S.A. 72-987(c)(8)).
1.
Transition Assessment
The LEA must conduct age-appropriate transition assessment at a minimum in the areas of
education/training, employment, and, where appropriate, independent living. The purpose of transition
assessment is to provide information to develop and write practical, achievable measurable post-
secondary goals and assist in the identification of transition services necessary in helping the student
reach those goals. Transition assessment must be conducted prior to the student reaching age 14 and
prior to the development of the measurable post secondary goals and transition services in the students
IEP. For each postsecondary goal there must be evidence that at least one age-appropriate transition
assessment was used to provide information on the student’s needs, strengths, preferences and
interests regarding postsecondary goals. Evidence would most likely be found in the student’s file.
Those responsible gather the information needed to understand student needs, taking into account
strengths, preferences and interests through career awareness and exploration activities and a variety
of formal and informal transition assessments. These assessments should seek to answer questions
such as:
a. What does the student want to do beyond school (e.g., further education or training, employment,
military, continuing or adult education, etc.)?
b. Where and how does the student want to live (e.g., dorm, apartment, family home, group home,
supported or independent)?
c. How does the student want to take part in the community (e.g., transportation, recreation,
community activities, etc.)?
It is important to consider and understand transition assessment as having the potential of being a
reevaluation. As information is collected to identify and determine need for services, in this case
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transition services, the assessments could easily enter into the area of reevaluation requiring notice,
consent and an evaluation report. For more information about determining whether the activities of the
planned transition assessment would be considered a reevaluation see Chapter 7 on Reevaluation.
2.
Measurable Postsecondary Goals
Each IEP for a student with a disability, who will be 14 or older during the time period of the IEP, must
have measurable postsecondary goal(s) that address the areas of: training/education, employment, and
independent living when appropriate. The only goal area that is not required based on individual student
needs is independent living.
Descriptions of these categories are:
•
Training/Education – specific vocational or career field, independent living skill training, vocational
training program, apprenticeship, OJT, military, Job Corps, etc., or 4 year college or university,
technical college, 2 year college, military, etc.
•
Employment - paid (competitive, supported, sheltered), unpaid, non-employment, etc.
•
Independent living skills – adult living, daily living, independent living, financial, transportation, etc.
Measurable postsecondary goals are different from measurable annual goals in that they measure an
outcome that occurs after a student leaves high school where a measurable annual goal measures
annual progress of the student while in school. However, it is important to note that for each
postsecondary goal, there must be an annual goal included in the IEP that will help the student make
progress towards the stated postsecondary goal. When developing annual goals, the team should ask
“what postsecondary goal(s) does this annual goal support?”. Due to this difference, how measurability
is included in the goal is different. The requirements for measurable postsecondary goals are specific
to the areas of training/education, employment and independent living, where appropriate, may be
written into a single “combo” goal that addresses both training/education, employment, and
independent living, where appropriate, in a single goal or as two/three separate goals. Measurable
postsecondary goals must be stated in a way that can be measured as yes or no it was achieved; a
process such as how a student will achieve a postsecondary goal is not measurable or steps/activities
to achieve the goal are not appropriate. The statement needs to indicate what the student “will” do after
graduating or completing their secondary program rather than what the student “plans”, “hopes”,
“wishes” or “wants” to do. Some examples of measurable postsecondary goals are:
Examples of Measurable Postsecondary Goals:
Example Individual goals:
Sara’s training/education goal is to attend college to study drafting.
Sara’s employment goal is to obtain employment as a CAD operator.
Example Combo goal:
Sara’s postsecondary goal is to attend college to study drafting to obtain employment as a CAD
operator.
3.
Courses of Study
Each IEP for a student with a disability (who will be 14 or older during the time period of the IEP) must
also contain a description of the courses of study (i.e. age 14 transition services) needed to assist the
student in reaching those goals. The courses of study must focus on improving the academic and
functional achievement of the student to facilitate movement from school to post-school by describing
the courses and/or educational experiences that are related to the student’s postsecondary goals.
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If the guidance counselor keeps a transcript of required courses toward graduation, the IEP team
should review the transcript and plan to determine that the courses identified support the student’s
postsecondary goals. The guidance counselor may be involved in the IEP meeting should there be
changes to the coursework. Other school experiences need to be considered as well. Each year the
IEP team reconsiders the student’s postsecondary goals and aligns the courses of study with those
desired goals. The decisions regarding the courses of study should relate directly to where the student
is currently performing and what he or she wants to do after graduation. The connection between the
student’s postsecondary goals and the courses of study should be obvious. To address the courses of
study, the team should ask:
a. Do the transition courses of study focus on improving the academic and functional
achievement of the child to facilitate their movement from school to post-school?
b. Do the courses of study (and other educational experiences) align with the student’s
postsecondary goal(s)?
The statement of courses of study is not required to be a listing of individual courses but could be part
of the statement if appropriate for the student. The following are examples of statements of the courses
of study:
Examples of Courses of Study
Sam plans on going to college and is interested in engineering. He will participate in the general
college prep curriculum with a focus on math and sciences.
Nancy is planning on working construction when she finishes high school. To attain the skills
necessary for construction, in addition to the general education curriculum she will take additional
technical education courses in trades and industry.
The examples above are brief statements that frame the types of courses and reasons why the student
will be taking them. Other options for courses of study could be an individual listing of classes which is
fine but the listing alone does not show the direct relationship of the course of study to the student’s
postsecondary goal(s). It’s important to keep in mind the reasoning behind including courses of study
in the IEP as a way to engage and help the student to see the relevance of their secondary education.
Be certain to write it in a way that is meaningful and emphases the connections to the student.
4.
Age 16 Transition Services
Beginning at age 16, or younger, if determined appropriate by the IEP team, each IEP of a student with
a disability must also contain an additional statement of transition services for the child, including,
when appropriate, a statement of the interagency responsibilities or any needed linkages (K.S.A. 72-
987(c)(8)). This requirement is in ADDITION to the age 14 requirements. Therefore, each IEP for a
student (who will be 16 or older during the time period of the IEP) must contain:
•
measurable postsecondary goal(s) addressing training/education and employment and possibly
independent living skills
•
the age 14 transition services statement (i.e. courses of study); and
•
the age 16 transition services statement.
The age 16 transition services should be a coordinated set of activities or strategies that support the
student in achieving their desired postsecondary goals. The IEP team builds this set of activities from
information contained in the PLAAFP that describe where the student is currently performing in
relationship to his/her postsecondary goals. With that as the starting point, the team needs to determine
what skills, services, or supports the student will need in order to successfully transition from where
(s)he is now to his/her desired postsecondary goals. For each postsecondary goal, there
should be
consideration of transition services in the areas of (a) instruction, (b) related service(s), (c) community
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experience, (d) development of employment and other post-school adult living objective
,
(e) if
appropriate, acquisition of daily living skill(s), or (f) if appropriate, provision of a functional vocational
evaluation listed in association with meeting the postsecondary goal. The LEA may also include the
multi-year plan for activities and transition services in the IEP as part of the Age 16 Transition Services.
If the LEA decides to include a multi-year plan there must be a clear distinction between those
activities/services that are being provided for the current IEP year and the activities or services that are
being planned for the future.
The age 16 (and over) transition services statement must:
1. Document activities & transition services for the current IEP year and identify the responsible
agency.
2. Document who will pay for which services if an agency outside of the school has responsibility.
Examples of age 16 transition services statements:
Sam needs to improve his employment skills. He will participate 2 hours a day in the community work
placement program this year.
Georgia will need adult employment supports. By the end of first semester the school will provide
Georgia and her family with information about applying to CDDO for services.
The IEP team must determine, to the extent appropriate, any other public agency that must be invited to
the IEP meeting because they are likely to be responsible for providing or paying for transition services.
The parents, or a student who is 18 years of age, must provide consent for the school to invite any
outside agency to the IEP meeting (K.A.R. 91-40-17(g); 34 C.F.R. 300.321(b)(3)). Consent from the
parent (or adult student) is required when inviting outside agencies to ensure the protection of
confidentiality of information under FERPA (Federal Register, August 14, 2006, p. 46672). (See Figure
4-5 in Appendix A for Consent to Invite Noneducation Agency to IEP Meeting form.)
It is expected that transition services to be provided by agencies other than the school will be included
in the IEP. If an agency other than the school, fails to provide the transition service in the IEP that it
had agreed to provide, the school must reconvene the IEP team to identify alternative strategies to
meet the transition objectives for the child that are set out in the IEP (34 C.F.R. 300.324(c)(1)).
Alternative strategies might include the identification of another funding source, referral to another
agency, the public agency’s identification of other district-wide or community resources that it can use
to meet the student’s identified needs appropriately or a combination of these strategies.
The school, or any participating agency, including the State vocational rehabilitation agency, is
responsible to provide or pay for any transition service that the agency would otherwise provide to
children with disabilities who meet the eligibility criteria of that agency. This is to be done without delay.
The school may claim reimbursement from an outside agency that failed to provide or pay for the
service pursuant to an interagency agreement or other financial arrangement (34 C.F.R. 300.324(c)(2);
34 C.F.R. 300.103; 34 C.F.R. 300.154). If a participating agency, other than the school district, fails to
provide the transition services described in the IEP, the school district must reconvene the IEP team to
identify alternative strategies to meet the transition objectives for the child.
For students incarcerated in an adult correctional facility whose eligibility under IDEA will end because
they will turn 21 years old before they will be eligible to be released from prison, the requirements
relating to transition planning and transition services do not apply (K.A.R. 91-40-5(c)(2)(B); 34 C.F.R.
300.324(d)).
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g.
Age of Majority
Beginning at age 17, the IEP team must inform the student and the parents that at the age of majority under
State law (age 18 in Kansas), the rights under IDEA will transfer to the student. The school must provide
documentation in the IEP, at least one year before the student is 18, that the student has been informed of
rights provided in the federal and state law that will transfer to the student. If parents believe that their child
may not be able to make educational decisions, they may wish to find out about obtaining a limited
guardianship or some other legal means to support the student upon reaching the age of majority. It is
important for the school to provide information and resources to the student and parents early in the IEP
process to assist them in understanding the implications of the transfer of these rights under IDEA (K.S.A.
72-989; K.A.R. 91-40-18(e)).
h.
Statement of Special Education and Related Services
Each IEP for a child with an exceptionality must include a statement of:
•
the special education services
•
related services
•
supplementary aids and services (including accommodations),
based on peer-reviewed research to
the extent practicable, to be provided to the child, or on behalf of the child
•
a statement of the program modifications, and
•
supports for school personnel that will be provided for the child to:
o
advance appropriately toward attaining the annual goals;
o
be involved in and make progress in the general education curriculum, and participate in
extracurricular and other nonacademic activities; and
o
be educated and participate with other children with exceptionalities and nonexceptional
children in these activities. (K.S.A. 72-987(c)(4))
Each of these areas must be addressed on the IEP even if the way it is addressed is indicating the child
does not need the service. All services; special education and related services, supplementary aids and
services, program modifications, and supports for school personnel, as outlined in the IEP (including
transition services) must indicate the projected date for the beginning of the services and the anticipated
frequency, location, and duration of those services(K.S.A. 72-987(c)(7)). It is possible that service dates
may vary throughout the year and should be indicated as such on the IEP.
The amount of services to be provided must be stated in the IEP so that the level of the school’s
commitment of resources will be clear to parents and other IEP team members. The amount of time to be
committed to each of the various services to be provided must be (1) appropriate to the specific service, and
(2) stated in the IEP in a manner that is clear to all who are involved in both the development and
implementation of the IEP (Federal Register, August 14, 2006, p. 46667).
In determining the location for special education and related services the IEP team must consider the
continuum of educational placements necessary to implement the IEP. The school must ensure that the
parents of each child are members of any group that makes decisions on the educational placement of their
child. The placement decision must be made in conformity with the requirement of providing services in the
least restrictive environment (LRE). The educational placement is to be:
•
determined at least annually;
•
based upon the child’s IEP; and
•
located as close as possible to the child’s home, consistent with the requirements of the IEP.
(K.A.R. 91-40-1(ll))
(For more information, see Chapter 5, Special Education and Related Services.)
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i.
Least Restrictive Environment
Least restrictive environment (LRE) means the educational placement in which, to the maximum extent
appropriate, children with disabilities, including children in institutions or other care facilities, are educated
with children who are not disabled (K.A.R. 91-40-1(ll)). The IEP must contain an explanation of the extent, if
any, to which the child will
not
participate with children without disabilities in the general education class,
and in extracurricular and nonacademic activities with program modifications or supports for school
personnel (K.S.A. 72-987(c)(5)). Children with disabilities are to be removed from the general education
environment
only if the nature or severity of the disability is such that education in general education classes
with the use of supplementary aids and services or modifications cannot be achieved satisfactorily.
Although placement in the LRE is not legally required for children identified as gifted, the provision of FAPE
still requires that the IEP team make an individualized placement determination for the child. Additionally,
parents of gifted children must be part of the team making placement decisions. (For additional information
on Educational Placement and Least Restrictive Environment see Chapter 6.)
Federal Regulation:
Sec. 300.320
(c) Failure to meet transition objectives.
(1) Participating agency failure. If a participating agency, other than the public agency, fails to provide the transition services described in the
IEP in accordance with §300.320(b), the public agency must reconvene the IEP Team to identify alternative strategies to meet the transition
objectives for the child set out in the IEP.
(2) Construction. Nothing in this part relieves any participating agency, including a State vocational rehabilitation agency, of the responsibility
to provide or pay for any transition service that the agency would otherwise provide to children with disabilities who meet the eligibility
criteria of that agency.
Kansas Statute:
K.S.A. 72-987. IEP content
(c) The IEP for each exceptional child shall include:
(1) A statement of the child’s present levels of academic achievement and functional performance, including: (A) How the child’s disability
or giftedness affects the child’s involvement and progress in the general education curriculum; (B) for preschool children, as appropriate,
how the disability affects the child’s participation in appropriate activities; and (C) for those children with disabilities who take alternate
assessments aligned to alternate achievement standards, a description of benchmarks or short-term objections;
(2) a statement of measurable annual goals, including academic and functional goals designed to: (A) Meet the child’s needs that result
from the child’s disability or giftedness, to enable the child to be involved in and make progress in the general education or advanced
curriculum; and (B) meet each of the child’s other educational needs that result from the child’s disability or giftedness;
(3) a description of how the child’s progress toward meeting the annual goals will be measured and when periodic reports on the progress
the child is making toward meeting the annual goals will be provided, such as through the use of quarterly or other periodic reports
issued concurrently with general education report cards;
(4) a statement of the special education and related services and supplementary aids, based on peer-reviewed research to the extent
practicable, and services to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports
for school personnel that will be provided for the child: (A) To advance appropriately toward attaining the annual goals; (B) to be
involved in and make progress in the general education curriculum in accordance with provision (1) and to participate in extracurricular
and other nonacademic activities; and (C) to be educated and participate with other exceptional and nonexceptional children in the
activities described in this paragraph;
(5) an explanation of the extent, if any, to which the child will not participate with nonexceptional children in the regular class and in the
activities described in provision (4);
(6) (A) a statement of any individual appropriate accommodations that are necessary to measure the academic achievement and functional
performance of the child on state and districtwide assessments; and (B) if the IEP team determines that the child shall take an alternate
assessment on a particular state or district-wide assessment of student achievement or part of such an assessment, a statement of why the
child cannot participate in the regular assessment and why the particular alternate assessment selected is appropriate for the child;
(7) the projected date for the beginning of the services and modifications described in provision (4), and the anticipated frequency, location,
and duration of those services and modifications;
(8) (A) beginning at age 14, and updated annually thereafter: (A) Appropriate measurable postsecondary goals based upon age-appropriate
transition assessments related to training, education, employment and where appropriate, independent living skills; and
(B) the transition services, including appropriate courses of study, needed to assist the child in reaching the stated postsecondary goals;
and
(C) beginning at age 16, or younger, if determined appropriate by the IEP team, a statement of needed transition services for the child,
including, when appropriate, a statement of the interagency responsibilities or any needed linkages; and
(9) beginning at least one year before the child reaches the age of majority under state law, a statement that the child has been informed of
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the child’s rights, if any, that will transfer to the child on reaching the age of majority as provided in K.S.A. 72-989, and amendments
thereto.
Nothing in this section shall be construed to require: (1) That additional information be included in a child’s IEP beyond that which is
specifically required by this section; and (2) that an IEP team include information under one component of a child’s IEP that is already
contained under another component of the IEP.
72-989. Rights of child with disability upon reaching 18 years of age.
When a person who has been determined to be a child with a
disability reaches the age of 18, except for such a person who has been determined to be incompetent under state law:
(a) An agency shall provide to both the person and to the person's parents any notice required by this act;
(b) all other rights accorded to parents under this act transfer to the person;
(c) the agency shall notify the person and the parents of the transfer of rights; and
(d) all rights accorded to parents under this act transfer to the person if incarcerated in an adult or juvenile federal, state or local
correctional institution.
Kansas Regulations:
K.A.R. 91-40-1
(ll) "Least restrictive environment" and “LRE” mean the educational placement in which, to the maximum extent appropriate, children with
disabilities, including children in institutions or other care facilities, are educated with children who are not disabled, with this placement
meeting the requirements of K.S.A. 72-976, and amendments thereto, and the following criteria:
(1) Determined at least annually;
(2) based upon the student's individualized education program; and
(3) provided as close as possible to the child's home.
K.A.R. 91-40-18(e)
(e) At least one year before an exceptional child reaches 18 years of age, the agency providing services to the child shall ensure that the child’s
IEP includes a statement the student has been informed of rights provided in the federal law, if any, that will transfer to the child on
reaching 18 years of age.
K.A.R. 91-40-21. Educational Placement
(a) Each agency shall ensure that the children with disabilities served by the agency are educated in the LRE.
(b) Each agency shall ensure that a continuum of alternative educational placements is available to meet the needs of children with disabilities.
These alternative educational placements shall meet the following criteria:
(1) Include instruction in regular classes, special classes, and special schools; instruction in a child’s home; and instruction in hospitals
and other institutions; and
(2) make provision for supplementary services, including resource room and itinerant services, to be provided in conjunction with
regular class placement.
(c)(1) In determining the educational placement of a child with a disability, including a preschool child with a disability, each agency shall
ensure that the placement decision meets the following requirements:
(A) The decision shall be made by a group of persons, including the parent and other persons who are knowledgeable about the child,
the meaning of the evaluation data, and the placement options.
(B) The decision shall be made in conformity with the requirement of providing services in the LRE.
(2) In determining the educational placement of a gifted child, each agency shall ensure that the placement decision is made by
a group
of persons, including the child’s parent and other persons who are knowledgeable about the child, the meaning of the
evaluation data,
and appropriate placement options for gifted children.
F. MEETING TO REVIEW, REVISE OR AMEND THE IEP
1. Annual Review of the IEP
The IEP is to be reviewed at least once every 12 months, to determine whether the annual goals for the child are
being achieved and to revise the IEP as appropriate. The review and revision of the IEP is to address: (a) any lack
of expected progress toward the annual goals and in the general education curriculum, where appropriate; (b) the
results of any reevaluation conducted; (c) information about the child provided by the parents; (d) the child’s
anticipated needs; or (e) other matters. The IEP team is to consider any of the special factors related to the child’s
IEP (see Section D.1. of this Chapter). (K.S.A. 72-987(f))
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2. Amend the IEP
At an annual IEP team meeting, changes to the IEP are to be made by the entire IEP team. However, between
annual IEP reviews, if the parent and school representative agree, changes can be made without an IEP team
meeting, by amending the IEP rather than by rewriting the entire IEP. School districts are encouraged to develop
and implement a policy indicating who has the authority to amend the IEP without a meeting (K.S.A. 72-987(b)(4)(A)).
In amending a child’s IEP, the parent of a child with an exceptionality and the school representative may agree not to
convene an IEP team meeting for the purpose of making those changes, and instead may develop a written
document to amend or modify the child’s current IEP. There are no restrictions on the types of changes that may be
made, so long as the parent and the school representative agree to make the changes without an IEP team meeting.
If changes are made to the child’s IEP without a meeting, the school must ensure that the child’s IEP team is
informed of those changes (K.S.A. 72-987(b)(4)(B); 34 C.F.R. 300.324(a)(4)). Upon request, the parent must be
provided with a revised copy of the IEP with the amendments incorporated. (See Figure 4-8 in Appendix A for
Agreement to Amend the IEP, also found at
www.kansped.org; Federal Register, August 14, 2006, pp. 46685-46686)
Even when using the IEP amendment process, the school must provide Prior Written Notice of any changes in the
IEP. If the changes in the IEP constitute a substantial change in placement or a material change in services, the
school must request parent consent to implement the change. [See Chapter 5 Services for further details about
substantial change in placement and material change in services]
Specific day-to-day adjustments in instructional methods and approaches that are made by either a general or
special education teacher to assist a child with an exceptionality to achieve his or her annual goals do not require
action by the child’s IEP team.
3.
Request by Parent or School Staff for IEP Meeting
Although the school is responsible for determining when it is necessary to conduct an IEP meeting, the parents of a
child with an exceptionality have the right to request an IEP meeting at any time. The child’s teacher or other school
staff may also propose an IEP meeting at any time they feel the IEP has become inappropriate for the child and
revision should be considered (K.S.A. 72-987(f)).
Kansas Statute:
K.S.A. 72-987
(b)(4) (A) After the annual IEP meeting for a school year, the parent of an exceptional child and an appropriate representative of the agency
providing services to the child may agree to develop a written document amending or modifying the child’s current IEP, without convening
an IEP meeting.
(B) If the parent and agency representative develop a written document amending or modifying a child’s current IEP, the document shall be
dated and signed by the parent and the agency representative. The parent and the agency shall be provided a copy of the document.
(f) Each agency shall ensure that the IEP team:
(1) Reviews the child’s IEP periodically, but not less than annually to determine whether the annual goals for the child are being
achieved; and
(2) revises the IEP, as appropriate, to address: (A) Any lack of expected progress toward the annual goals and in the general education
curriculum, where appropriate; (B) the results of any reevaluation conducted under this section; (C) information about the child provided
by the parents; (D) the child’s anticipated needs; or (E) other matters.
Kansas Regulations:
K.A.R. 91-40-16. IEP requirements.
(a) Each agency shall be responsible for initiating and conducting meetings to develop, review, and revise the IEP of each exceptional child
served by the agency.
(b) Except as otherwise provided in subsection (c), each agency shall ensure that the following conditions are met:
(1) An IEP is in effect before special education and related services are provided to an exceptional child.
(2) Those services to which the parent has granted written consent as specified by law are implemented not later than 10 school days after
parental consent is granted unless reasonable justification for a delay can be shown.
(3) An IEP is in effect for each exceptional child at the beginning of each school year.
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(4) The child’s IEP is accessible to each regular education teacher, special education teacher, related service provider, and other service
provider who is responsible for its implementation.
(5) Each teacher and provider described in paragraph (4) of this subsection is informed of the following:
(A) That individual's specific responsibilities related to implementing the child’s IEP; and
(B) the specific accommodations, modifications, and supports that must be provided for the child in accordance with the IEP.
G.
TRANSFER WITHIN THE STATE AND FROM OUT-OF- STATE
When a student moves into a new school district, the school district must take reasonable steps to promptly obtain
the child’s records, including the IEP and supporting documents and any other records relating to the provision of
special education or related services to the child, from the previous school district in which the child was enrolled.
The previous school district in which the child was enrolled must take reasonable steps to promptly respond to the
request from the new school district (K.S.A. 72-987(g); 34 C.F.R. 300.323(e)(f)(g)). Since this is a transfer of
educational records from the child’s old district to the new district no consent for release of documents is required.
1.
Within State
When a child with an exceptionality transfers to a new school district in Kansas, with a current IEP in a previous
school district in Kansas, the new school district, in consultation with the parents, must provide FAPE to the child,
including services comparable to those described in the child’s IEP from the previous school district. Once the new
district receives the current IEP the new school district may adopt the child’s IEP from the previous school district or
develop and implement a new IEP. When a student moves within the State, eligibility has already been established
and a reevaluation is not required.
2.
Out-of-State
When a child with an exceptionality, who has a current IEP in another State, transfers to a school district in Kansas,
the new school district, in consultation with the parents, must provide the child with FAPE, including services
comparable to those described in the child’s IEP from the previous school district. Comparable services have the
meaning of “similar” or “equivalent” to the services that were described in the child’s IEP from the previous school, as
determined by the child’s newly designated IEP team in the new district (Federal Register, August 14, 2006, p.
46681). If there is a dispute between the parent and the school district regarding what constitutes comparable
services, the dispute could be resolved through mediation procedures or, as appropriate, the due process hearing
procedures. If the parent disagrees with the new school district about the comparability of services, stay-put would
not apply (Federal Register, August 14, 2006, p. 46682).
The new school district may adopt the current IEP or conduct an
initial evaluation to determine eligibility, and develop
and implement a new IEP. The evaluation conducted by the new school district would be to determine if the child is a
child with an exceptionality and to determine the educational needs of the child. Therefore, the evaluation would be
an initial evaluation, which would require parental consent.
Kansas Statute:
K.S.A. 72-987
(g) (1) If an exceptional child with a current IEP transfers from one Kansas school district to another during the academic year, the new school
district, in consultation with the child’s parent, shall provide the child a FAPE, including services comparable to those described in the
transferred IEP, until the new school district either adopts the transferred IEP, or develops and implements a new IEP for the child.
(2) If during the academic year, an exceptional child who has a current IEP transfers from a school district in another state to a Kansas school
district, the Kansas school district, in consultation with the child’s parent, shall provide the child a FAPE, including services comparable to
those described in the transferred IEP, until the Kansas school district either adopts the transferred IEP, or conducts an evaluation of the child,
if deemed necessary, and develops and implements a new IEP for the child
.
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H. IMPLEMENTING THE IEP
Once the IEP team has completed developing the initial IEP, Prior Written Notice, describing the proposed action
must be provided to the parents and a request made for consent to initiate special education and related services.
Services are to be initiated within 10 school days after written parent consent is granted, unless reasonable
justification for a delay can be shown. The implementation of initial services must be completed within the 60 school
day timeline of initial evaluation (K.A.R. 91-40-8(f); K.A.R. 91-40-16(b)(2)).
The school must obtain informed consent from the parent of the child before the initial provision of special education
and related services to the child. The school must make reasonable efforts to obtain informed consent from the
parent. If the parent fails to respond or refuses to consent to the initial provision of services, the school may
not use
mediation or due process procedures in order to obtain agreement or a ruling that the services may be provided to
the child.
However, in such cases, the school will
not be considered to be in violation of the requirement to make available
FAPE to the child for the failure to provide the child with the services for which the school requests consent. Under
these circumstances, the school is not required to convene an IEP team meeting or develop an IEP for the child. In
the situation where the parent fails to respond or refuses consent, this would also exclude the child from IDEA
discipline protections that are provided to students when a district suspects the child to be a child with a disability.
Once an IEP has been completed and consent for services has been obtained from the parents, the child’s IEP must
be accessible to each regular education teacher, special education teacher, related services provider, and any other
service provider who is responsible for it’s implementation. Regardless of whether an individual participates in the
IEP meeting or is excused, all individuals who are providing education to the child (regular education teacher, special
education teacher, related service provider, and any other service provider who is responsible for implementation of
the IEP) must be informed by the IEP team of (1) his or her specific responsibilities related to implementing the
child’s IEP, and (2) the specific accommodations, modifications, and supports that must be provided for the child in
accordance with the IEP (K.A.R. 91-40-16(b)(5); 34 C.F.R. 300.323(d)(2)).
Kansas Regulations:
K.A.R. 91-40-8. Evaluations
(f) Unless an agency has obtained written parental consent to an extension of time and except as otherwise provided in subsection (g) of this
regulation, the agency shall complete the following activities within 60 school days of the date the agency receives written parental consent
for evaluation of a child:
(1) Conduct the evaluation of the child;
(2) conduct a meeting to determine whether the child is an exceptional child and, if so, to develop an IEP for the child. The agency shall
give notice of this meeting to the parents as required by K.A.R. 91-40-17(a); and
(3) implement the child’s IEP in accordance with K.A.R. 91-40-16.
(g) The agency shall not be subject to the timeframe prescribed in subsection (f) of this regulation if:
(1) the parent of the child who is to be evaluated repeatedly fails or refuses to produce the child for the evaluation; or
(2) the child enrolls in a different school before the evaluation is completed and the parent and new school agree to a specific time when
the evaluation will be completed.
(h) In complying with subsection (f) of this regulation, each agency shall ensure that an IEP is developed for each exceptional child within 30
days from the date on which the child is determined to need special education and related services.
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QUESTIONS AND ANSWERS ABOUT THE IEP
1. May an IEP be written with no measurable annual goals?
No, IEPs must have at least one measurable annual goal. Measurable annual goals document the child’s
anticipated progress as the result of special education. Special education is defined in K.A.R. 91-40-1(jjj) as
“specially designed instruction to meet the unique needs of an exceptional child...” If no measurable annual
goals are necessary and no specially designed instruction is necessary, the child’s continued need for special
education and related services should be reconsidered. If only modifications, accommodations, consultation, or
services that don’t require specially designed instruction are required, the child’s needs may be able to be met
through a Section 504 plan or other means.
2. When using short-term objectives for children who take an alternate assessment
aligned to alternate achievement standards, can they be demonstrated through the
use of graphs, or by simply stating the criteria for progress reporting periods without
restating the entire goal multiple times?
No specific format for short-term objectives is prescribed by law. So long as the short-term objectives are
measurable intermediate steps that “enable a child’s teacher(s), parents, and others involved in developing and
implementing the child’s IEP to gauge, at intermediate times during the year, how well the child is progressing
toward achievement of the annual goal,” they are legally compliant.
3. May a teacher develop their own assessments, including rubrics and informal probes,
as criteria for the measurable annual goals?
Yes, so long as the assessment contains specific, objective, measurable criteria that are aligned with local
curriculum and instruction. Personal opinions and other subjective measures are not appropriate. If a teacher-
made assessment is developed to establish baseline data in the PLAAFP and the measurable annual goal, it
should be attached to the IEP so that anyone who may become involved in implementing the IEP can use it to
develop appropriate instructional plans and assess child progress as necessary.
4. What happens when the IEP team cannot reach an agreement?
The IEP team should work toward consensus. It is not appropriate for an IEP team to make IEP decisions based
upon a majority vote. If the IEP team cannot reach agreement the LEA representative at the meeting has the
ultimate authority to make a decision and then to provide the parents with appropriate notice and request
consent of the proposed action as appropriate.
5. What should the school do if the child’s only parent is in jail and will not be released
before the IEP annual review date?
If neither parent is able to attend the IEP team meeting, the school must take steps to ensure parent
participation, including individual or conference telephone calls. Depending upon the facility, it may even be
possible to hold the IEP team meeting at the jail. Incarceration of a parent does not invalidate the parent’s right
to participate in the development, review, and revision of their child’s IEP.
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6. Do IEP team members signatures on the IEP constitute consent to the contents of the
IEP?
No. IEP team members’ signatures on the IEP only indicate who was present and participated in the
development, review, and revision of the IEP. Signatures on the IEP do not constitute consent or agreement.
For this reason, no one should sign the IEP who did not attend and did not participate in the IEP team meeting.
If a member of the IEP team does not agree with a part of the IEP, she/he has the right and obligation to write a
minority report and have it attached to the IEP.
7. May parents refuse consent for their child with a disability to participate in State and
district-wide assessments, regardless of any decisions the IEP team may have made
regarding the child’s participation?
Yes, but school officials should encourage the parents to include their child in the State assessments. Any
parent may request that their child be exempt from the State assessments. Not allowing parents of children with
disabilities to exempt their children would be discrimination based on handicapping condition.
8. Must students incarcerated in adult prisons take State and district-wide
assessments?
No. According to 34 C.F.R. 300.324(d) and K.A.R. 91-40-5(c)(2), requirements relating to students with
disabilities taking State and district-wide assessments do not apply to students incarcerated in adult prisons.
Students in local or state juvenile correctional facilities are not exempted from taking State and district-wide
assessments.
9. If a child has many general education teachers or special education teachers and
related services personnel, which one must be a member of the IEP team?
Not less than one general education teacher of the child and not less than one special education teacher or
related services personnel who is or will be working with the child, must attend the IEP meeting. The school may
designate which teacher or teachers will serve as IEP team member(s), taking into account the best interests of
the child. The general education teacher who serves as a member of the child’s IEP team should be one who is,
or may be, responsible for implementing a portion of the IEP. More than one teacher may attend as appropriate.
10. May parents sign a waiver stating that they do not wish to receive additional copies of
the Parent Rights Notice this year?
No waiver of the right to receive the Parent Rights Notice is permissible under the law or regulations. It is
permissible for the school to send the notice through electronic mail communication if the parent agrees to it and
the school makes that option available (34 C.F.R. 300.505). It is permissible for the parents to refuse the Parent
Rights Notice after the school has offered it, or to return the document to the school. The school must document
that they provided the notice at the required times.
The Parent Rights Notice must be given to parents, at a minimum:
(1) Only one time in a school year; and
(2) Upon initial referral or parent request for evaluation;
(3) Upon receipt of the first formal complaint to the State in a school year;
(4) Upon receipt of the first due process complaint in a school year;
(5) Upon initiation of a disciplinary change of placement; and
(6) Upon parent request.
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11. What should the IEP team do if a child moves to the district with no records or IEP, or
an unusable IEP?
The IEP team may need to develop an interim IEP for a shorter than normal period of time to allow time to locate
the child’s records or conduct the assessments necessary to develop a new IEP. The provision of the special
education and related services the child needs in order to receive FAPE and progress in the general curriculum
should not be withheld pending the receipt of records when the school knows the child has been identified as a
child with an exceptionality and has an IEP.
12. Is it necessary to have the parent's signature to document that the parent received
the 10-day written Notice of IEP team meetings?
No, the parent's signature is not required. Keeping a copy of the Notice to the parent that indicates that date it
was sent is adequate documentation. It is also helpful to document on the 10-day notice any other parent
contacts that may have occurred before the date the notice was sent. For example, "As we discussed during our
telephone conversation on September 3, your child's IEP meeting has been scheduled for Friday, September 16,
2008, at 3:00 p.m. in room 204 of Southeast Elementary School."
13. If the IEP team does not have adequate information at the time of the IEP team
meeting to determine what Extended School Year (ESY) services will be necessary for
the child during the summer, what should be written on the IEP?
One of the responsibilities of the IEP team is to consider whether or not ESY services are necessary for each
child with a disability. If the IEP team decides that ESY is necessary for the child, they must then determine
what those services will be and include them in the IEP.
If the IEP meeting is held in the fall of the school year or if the child is new to the school, the IEP team may not
have enough data to determine if the child needs ESY services or what those services should be. In this case,
the team should include in the IEP a statement that ESY services were considered and that there was
inadequate information at the time of the meeting to make an appropriate decision. The team should also
include in this statement a date later in the school year when more information will be available to reconvene and
determine if ESY services are needed and amend the IEP as necessary (34 C.F.R. 300.309).
14. If a child turns 21 during the school year, must ESY services be provided the summer
after the student's final year of school?
Children continue to be eligible for all necessary special education and related services including ESY until they
appropriately exit special education. A student with a disability may be eligible for special education and related
services through the school year (ending June 30) in which they turn 21. Thus, it is an IEP team decision
whether ESY is necessary for the student until June 30 after their 21
st
birthday. Some factors in the IEP team's
decision may include whether or not the June 30 deadline will give the child time to complete ESY services and
whether or not the child will benefit from ESY services.
15. After the child is age 14 or older, is the school required to provide the child with
his/her own separate 10-day IEP meeting notice?
No, the school is not required to send the child his/her own separate Notice. However, children ages 14 to 17
must be invited with documentation of their participation in the IEP meeting or input into the IEP. After the age of
majority (18 in Kansas), the public agency MUST provide any Notice to BOTH the adult student and the parents.
The parents are only notified of the meeting. To attend the meeting, they will have to be invited by their child or
the public agency.
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16. What happens if the parent does not show up for the IEP meeting?
The school may conduct an IEP meeting without the parents if the school has made repeated attempts (at least
2 contacts by two different methods), but has been unable to secure the parents participation.
If a parent has received notice of the IEP team meeting at least 10 calendar days prior to the meeting which
includes the meeting date, time and location, and agrees to participate, but does not come to the meeting, the
school must contact the parent to reschedule the IEP team meeting and conduct a complete IEP team meeting
with all members in attendance. If necessary, other means of parent participation may be used, such as
conference calls. Detailed records are to be maintained of attempts to contact the parents.
17. Can the IEP team develop a draft IEP prior to the IEP team meeting?
Yes, a draft IEP may be developed before any IEP meeting. However, in order to ensure parent participation in
the development of the IEP, the IEP may not be completed before the IEP team meeting. Members of the IEP
team may come with evaluation findings and recommended IEP components, but should make it clear to the
parents that these are only suggestions and that the parents' input is required in making any final
recommendations. If school personnel bring drafts of some or all of the IEP content to the IEP meeting, there
must be a full discussion with the IEP team, including the parents, before the child’s IEP is finalized, regarding
content, the child’s needs and the services to be provided to meet those needs. Parents have the right to bring
questions, concerns, and recommendations to an IEP meeting for discussion (Federal Register, August 14,
2006, p. 46678).
18. What if the child does not want the parent to attend the IEP meeting? Is it mandatory
to send the notice to both?
For children under the age of 18, the parent is a required member of the IEP team and must attend the IEP team
meeting. The notice is to be sent to the parent and if the child is invited to the IEP team meeting, the notice may
be sent/given to the child, or the child may be invited verbally. Once the child turns age 18, the school is
required to send the Notice to both the parent and the adult student. However, the parent has
no right to attend
the meeting unless invited by the student or the school as a person with knowledge or expertise about the
student.
19. What should the remaining IEP team members do if any required member of the IEP
team who is invited to attend, and is not excused, does not show up for the meeting?
If a required member, whose area of the curriculum or related services is being discussed or modified, has not
been excused from the IEP team meeting, by consent of the parent and the school, and has not provided input
into the development of the IEP in writing prior to the meeting, the school shall reschedule the meeting for a time
when all required members can be present or can be officially excused, and, if necessary, provide written input
into the meeting. To conduct an IEP meeting without all of the required IEP team members present or having
the appropriate excusals is not legally compliant.
20. May occupational therapy or physical therapy stand alone on the IEP as a special
education service?
Yes, if the child initially qualified for special education and related services under the category of physical
impairment or other health impaired. The IEP team must determine the special education and related services
needed by the child. If the child does not need specially designed academic instruction, but does need
occupational therapy or physical therapy in order to access or progress in the general curriculum or to be
educated in the LRE, these services would be listed in the IEP and addressed in the annual goals.
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21. If someone is listed on the Notice of IEP Meeting do they have to come?
No, listing a persons name on the Notice of IEP meeting just documents they were invited and does not obligate
their attendance unless they are one of the required IEP team members. The IEP may list the role of a team
member, such as, general education teacher or speech therapist.
22. Can IEP meetings be recorded with audio or video recorders?
There is no Federal or State statute or regulation that either authorizes or prohibits the recording of an IEP
meeting by either a parent or a school official. The local agency has the option to require, prohibit, or regulate
the use of recording devices at IEP meetings. If there is a local a policy that prohibits or limits the use of
recording devices at IEP meetings, that policy must provide for exceptions if they are necessary to ensure that
the parent understands the IEP or the IEP process or to ensure parental rights guaranteed under Part B. If a
policy is adopted by a local agency it should also ensure that it is uniformly applied. Additionally, any recording
of an IEP meeting maintained by the school is an “educational record” within the meaning of the Family
Educational Rights and Privacy Act (“FERPA”; 20 U.S.C. 1232g), and is subject to the confidentiality
requirements of both FERPA and IDEA (Federal Register, march 12, 1999, p. 12477).
23. Who is the general education teacher invited to the IEP meeting of a 3-year old that is
in a home setting?
The child who is receiving special education services in a home-based setting would not have a general
education teacher unless the early childhood special education teacher is also licensed as an early childhood
teacher. Therefore, a general education teacher would not be required to attend the IEP meeting unless it is
anticipated that the special education services will provided in a general education setting during the next IEP
year. In that case, the school would designate a teacher qualified to teach a child of that age.
24. Can a required IEP team member be excused from more than one IEP meeting at a
time?
No, the excusal to attend an IEP meeting is specific to each individual meeting.
25. Can a district choose to not allow the excusal of required IEP team members?
Yes, a district may choose to implement a policy that would not allow any of the required IEP team members
from being excused.
26. Do the Notice of the IEP team meeting, evaluation reports and progress reports have
to be translated into the parent’s native language?
The only legal requirement for providing documents in the parents native language of the parent or other mode
of communication used by the parent is for Prior Written Notice (34 C.F.R. 300.503(c)).
27. What is a consultation only IEP?
All IEPs must address all of the same legal requirements. If a student does not need specially designed
instruction the IEP team should consider conducting a reevaluation to determine whether the child is still eligible
for special education services. However, a child may receive specially designed instruction in a regular
education classroom through the consultation of the special education teacher with the regular education
teacher. There should be a goal addressing the child’s needs on the IEP.
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28. Can an attorney come to an IEP meeting on behalf of the parent or school?
Yes, an attorney may attend an IEP meeting if the parents or school officials believe an attorney is needed.
However, the presence of an attorney is strongly discouraged as it often sets an adversarial tone for the
meeting. If the attorney is coming at the invitation of the school they must be included on the notice of meeting
provided to the parents. Parents are encouraged, but are not required, to inform the school of any additional
persons they are bringing regardless who they are.
29. If a child was found eligible for special education under emotional disturbance must
they have a behavioral goal or may they have only an academic goal?
Measurable annual goals should never be dependent upon the child’s label; they should always be related to the
individual child’s needs. Therefore, some ED students will need behavioral goals, but others may not. The issue
with many children with ED is that their behavior has interfered with their learning for so long, that even when
their behavior comes under better control, they frequently continue to have academic deficits. The PLAAFP
should clearly describe how the child’s exceptionality impacts their ability to access and progress in the general
education curriculum. Based upon the information the IEP Team has they will need to prioritize needs and
identify the goals, accommodations, behavior plans or other services needed to address the impact of the
exceptionality. Depending upon the results of the assessment the child may have need for a behavioral goal
and/or and academic goal. Either would be appropriate. For children whose behavior has improved, celebrate
the achievement, and continue to address the issues around how their disability impacts their ability to access
and progress in the general curriculum.
30. Can a teacher or a principal keep a child from attending special education services in
an IEP because they have not completed their general education assignments or do
not have passing grades?
Each teacher (and administrator) working with the child should be informed about the services on the child’s IEP.
They are legally responsible to ensure that the child receives the services. If they feel that the IEP is not
adequate for the child to participate and make progress in the general education curriculum they can ask for an
IEP meeting to see if the IEP should be revised.
32. Do IEP goals for students taking the KAMM need to include benchmarks or short-term objectives?
There are no state requirements that IEP goals for students taking the KAMM include benchmarks or short-term
objectives. Benchmarks or short-term objectives are required only for students taking the Kansas Alternate
Assessment. However, some local districts and cooperatives do have additional requirements, so check with
your local special education administrator.
33. Do students with severe emotional disturbance (SED) labels, who have goals on their IEPs which are
focused on behavior, need to have content area goals if they are participating in the KAMM?
For any category of disability, if behavior is a significant issue for a student, then a behavioral goal on the IEP is
likely to be appropriate. However, if behavior has interfered with a student’s learning to such an extent that the
student’s academic skill level indicates the need to participate in a KAMM assessment, then the student should
also have a goal which addresses the area of academic needs.
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CHAPTER 5
SPECIAL EDUCATION AND RELATED SERVICES
INTRODUCTION
One of the most important considerations for IEP teams is the special education, related services, and supplementary
aids and services to be provided to the child or on behalf of the child. The IEP team must also consider the program
modifications or supports for school personnel that will be provided on behalf of the child. All services and supports are
provided to enable the child: (1) To advance appropriately toward attaining the annual goals; (2) to be involved in and
make progress in the general education curriculum, or appropriate activities for children ages 3-5; (3) to participate in
extracurricular and other nonacademic activities; and (4) to be educated and participate with their nondisabled peers to
the maximum extent appropriate, in all of these activities. (See Chapter 4, the Individualized Education Program.)
Federal law emphasizes having high expectations for each child and enabling each child to participate and progress
in the general education curriculum. Given those foundations, resulting educational placement decisions must be
based upon providing services within the least restrictive environment. (See also Chapter 6, Educational Placement
and Least Restrictive Environment.) The IEP team must consider special education and related services required to
meet the individual needs of children with exceptionalities (including those who are gifted).
This chapter addresses these services and is organized according to the following headings:
A.
Special Education Services
B.
Related Services
C.
Supplementary Aids and Services
D.
Program Modifications and Supports for School Personnel
E.
Incidental Benefit
F.
Extended School Year/Day Services
G.
Frequency, Location and Duration of Services
H.
Home Schooling
I.
Services In Local Detention Facilities, Juvenile Justice Authority and Department of Corrections Facilities
J.
Facilities
K.
Qualified Special Education Personnel
A. SPECIAL EDUCATION SERVICES
1.
Local Authority
Each school district is responsible for ensuring that all children with exceptionalities receive the special education,
related services, and supplementary aids and services that are specified in their IEP. State law gives local agencies
the authority to provide services in numerous ways:
•
In the schools;
•
In the home, hospital, or other facilities;
•
Through a contract with another district;
•
Through a cooperative agreement with other districts; or
•
Through a contract with a public or private institution.
(K.S.A. 72-966 and 72-967)
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Regardless of the method used for service delivery, providers must meet the standards and criteria set by the
Kansas State Board of Education.
Additionally, when a child with an exceptionality is admitted to a hospital, treatment center, or other health care
institution or facility, a group boarding home or other care facility, upon a referral by a person licensed to practice
medicine and surgery, and the institution or facility is located outside the school district in which the child resides, the
district of residence remains responsible for the provision of FAPE for the child. Special education and related
services required may be provided pursuant to a contract entered into between the school district of which the child is
a resident and the school district in which the child is housed. If a contract is not entered into between the two school
districts, the child shall be deemed to be a pupil of the school district which is providing special education and related
services to the child (K.S.A. 72-966(b)).
State Statute:
K.S.A. 72-966
. Duties of boards of education in meeting requirements of law; responsibilities of state board of education and other state
agencies; interagency agreements; dispute resolution. (a) (1) Each board shall adopt and implement procedures to assure that all exceptional
children residing in the school district, including homeless children, foster care children and children enrolled in private schools, who are in
need of special education and related services, are identified, located and evaluated.
(2) Each board shall provide a free appropriate public education for exceptional children enrolled in the school district and for children
with disabilities who are placed in a private school or facility by the school district as the means of carrying out the board’s obligation to
provide a free appropriate public education under this act and for children with disabilities who have been suspended for an extended term or
expelled from school.
(3) Each board shall provide exceptional children who are enrolled by their parents in private schools with special education and related
services in accordance with state law and federal law.
(b) If an exceptional child, upon referral by a person licensed to practice medicine and surgery, 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 in which the institution or facility is located may contract with the district in which a parent of
the child resides to provide special education or related services, if such services are necessary for the child. Special education and related
services required by this subsection may be provided pursuant to a contract entered into between the board of the school district of which the
child is a resident and the board of the school district in which the child is housed. Any such contract shall be subject to the provisions of
subsections (a)(3)and (c) of K.S.A. 72-967, and amendments thereto. If a contract is not entered into between the school districts, the child
shall be deemed to be a pupil of the school district which is providing special education and related services to the child. 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), but shall operate as a comity of school districts in assuring the provision of special education services for
each exceptional child in the state.
(c) (1) Special education and related services required by this section shall meet standards and criteria set by the state board.
K.S.A. 72-967
(a) Each board, in order to comply with the requirements of this act, shall have the authority to:
(1) Provide appropriate special education and related services for exceptional children within its schools.
(2) Provide for appropriate special education and related services in the home, in a hospital or in other facilities.
(3) Contract with another school district for special education and related services. Any such contract may provide for the payment of
tuition and other costs by the school district in which the child is enrolled.
(4) Enter into cooperative agreements with one or more other school districts for special education and related services.
(5) Contract with any private nonprofit corporation or any public or private institution, within or outside the state, which has proper
special
education or related services for exceptional children. Whenever an exceptional child is educated by a private nonprofit corporation or a
public or private institution as provided under this paragraph, such child shall be considered a pupil of the school district contracting for
such education to the same extent as other pupils of such school district for the purpose of determining entitlements and participation in
all state, federal and other financial assistance or payments to such school district.
(6) Furnish transportation for exceptional children, whether such children are residents or nonresidents of such school district, for the
provision of special education or related services. In lieu of paying for transportation, the board of the school district in which an
exceptional child resides may pay all or part of the cost of room and board for such exceptional child at the place where the special
education or related services are provided.
(b) Special education and related services which are provided for exceptional children shall meet standards and criteria set by the state board
and shall be subject to approval by the state board.
(c) Any contract entered into by a board under the provisions of this section shall be subject to change or termination by the legislature.
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2.
Provision of Special Education Services
Children with exceptionalities are entitled to receive special education and related services. This term means
specially designed instruction to meet the unique needs of a child with an exceptionality, and includes physical
education, travel training, and vocational education. Special education and related services must be provided at no
cost to the parents.
All special education services, related services, and supplementary aids and services are to be based on peer-
reviewed research, to the extent practicable (K.S.A. 72-987(c)(4)). Peer-reviewed research is research that is
reviewed by qualified and independent reviewers to ensure that the quality of the information meets the standards of
the field before the research is published. It may be important to note that OSEP comments state that special
education services that are based on “peer-reviewed research” are to be provided to the extent that it is possible,
given the availability of the research. If no such research exists, the service may still be provided if the IEP team
determines that such services are appropriate. Further, OSEP states that failure to base services on peer reviewed
research is not necessarily a violation of FAPE, because the IEP team determines what services the child will receive
based on the child’s individual needs. The IEP is not required to include specific instructional methodologies unless
the IEP team determines that it is necessary for a child to receive FAPE (Federal Register, August 14, 2006, pp.
46664, 46665).
Each IEP team makes decisions about the special education instruction and related services, as well as supplementary
aids and services to be provided to the child, or on behalf of the child, so that the child will advance appropriately toward
meeting his/her annual goals, advance in the general curriculum and be educated with his/her peers.
The IEP must also include any services needed to support school personnel. For example, if the general education
teacher needs instruction to learn how to use an assistive technology device that the child will use in the classroom,
or if the general education teacher may need training in order to carry out a behavior intervention plan in the
classroom, or the teacher is being sent to receiving training to work with a child with autism, these services would be
included in the IEP for the child.
The decision about what services, the amount of services, and the setting of services necessary to meet the unique
needs of an exceptional child is based on a variety of factors. The IEP team must identify the child's present levels of
academic achievement and functional performance (PLAAFPs) and determine the annual goals and, if appropriate,
benchmarks/short-term objectives. Once the PLAAFPs and goals are established, the IEP team decides what
services are to be provided. The IEP team decides the specific services and the amount of services that will be
needed for the child to make the necessary progress to achieve the measurable annual goals. After the IEP team
determines which services and the amount of services are necessary the team next needs to decide where those
services will be provided, and the amount of time the child will spend in general education settings, special
educational settings, or in a combination of settings. All special education and related services must be individually
determined in light of each child’s unique abilities and needs to meet the annual goals in the IEP and make progress
in the general education curriculum.
3.
Paraeducator
Paraeducators (para’s) must work under the supervision of licensed teachers and must meet the personnel
standards determined by the State, found in the "Special Education Reimbursement Guide: State Categorical and
Transportation Aid" ,which is on the KSDE home page at
www.kansped.org under Resources/Technical Assistance
Guidance Documents. Para’s are not to be documented separately from their supervising teachers on the IEP.
Para’s are included in and reported as part of the supervising teacher’s special education service time.
Paraeducators working under the supervision of licensed speech-language pathologists, occupational therapists, and
physical therapists must meet additional requirements for training and supervision. Each professional's licensing
body maintains strict standards for assistants, which if not followed result in the loss of the professional's license.
The Kansas Department of Health and Environment, Health Occupations Credentialing Section, may be contacted
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for current State regulations for speech language pathologists (785-296-0061). State regulations for occupational
therapists and physical therapists may be obtained from the Kansas State Board of Healing Arts (785-296-7413).
3.
Related Services As Special Education Services
The IEP team may determine that the only special education service needed for a child with a disability is a related
service, if it consists of specially designed instruction to meet the unique needs of the child. State regulations identify
the following related services as special education services:
"(2) Paraeducator services, speech/language pathology services, and any other related services, if it
consists of specially designed instruction to meet the unique needs of a child with a disability; (3)
occupational or physical therapy and interpreter services for deaf children if, without any of these services,
a child would have to be educated in a more restrictive environment" (K.A.R. 91-40-1(kkk)(2)(3))
4.
Special Education for Children Identified as Gifted
Each child identified as gifted shall be permitted to test out of, or work at an individual rate, and receive credit for
required or prerequisite courses, or both, at all grade levels, if so specified in that child’s IEP. Each gifted child may
receive credit for college study at the college or high school level, or both. If a gifted child chooses to receive college
credit, however, the student shall be responsible for the college tuition costs (K.A.R. 91-40-3(g)(h)).
State Statute:
K.S.A. 72-987(c)
(c) The IEP for each exceptional child shall include:
(4) a statement of the special education and related services and supplementary aids, based on peer-reviewed research to the extent
practicable, and services to be provided to the child, or on behalf of the child, and a statement of the program modifications or
supports for school personnel that will be provided for the child:
(A) To advance appropriately toward attaining the annual goals;
(B) to be involved in and make progress in the general education curriculum in accordance with provision (1) and to participate in
extracurricular and other nonacademic activities; and
(C) to be educated and participate with other exceptional and nonexceptional children in the activities described in this paragraph;
(5) an explanation of the extent, if any, to which the child will not participate with nonexceptional children in the regular class and in the
activities described in provision (4);
(6) (A) a statement of any individual appropriate accommodations that are necessary to measure the academic achievement and functional
performance of the child on state and districtwide assessments; and (B) if the IEP team determines that the child shall take an
alternate assessment on a particular state or district-wide assessment of student achievement or part of such a assessment, a statement
of why the child cannot participate in the regular assessment and why the particular alternate assessment selected is appropriate for
the child;
(7) the projected date for the beginning of the services and modifications described in provision (4), and the anticipated frequency,
location, and duration of those services and modifications;
State Regulation:
K.A.R. 91-40-1(kkk)
"Special education" (1) means specially designed instruction, at no cost to the parents, to meet the unique needs of an exceptional child,
including:
(A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and
(B) instruction in physical education; and
(2) shall include:
(A) paraeducator services, speech-language pathology services and any other related service, if it consists of specially designed
instruction to meet the unique needs of a child with a disability;
(B) occupational or physical therapy and interpreter services for deaf children, if without any of these services, a child would
have to be educated in a more restrictive environment;
(C) travel training; and
(D) vocational education.
K.A.R. 91-40-1(lll)
"Specially designed instruction" means adapting, as appropriate to the needs of each exceptional child, the content, methodology or delivery
of instruction for the following purposes:
(1) To address the unique needs of the child that result from the child's exceptionality; and
(2) to ensure access of any child with a disability to the general curriculum, so that the child can meet the educational standards within
the jurisdiction of the agency that apply to all children.
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K.A.R. 91-40-3(g)(h)
(g) Each gifted child shall be permitted to test out of, or work at an individual rate, and receive credit for required or prerequisite
courses, or both, at all grade levels, if so specified in that child’s individualized education program.
(h) Any gifted child may receive credit for college study at the college or high school level, or both. If a gifted child chooses to receive
college credit, however, the student shall be responsible for the college tuition costs.
B. RELATED SERVICES
Related services are developmental, corrective, and supportive services required to assist a child, who has been
identified as a child with an exceptionality, to benefit from special education services. Generally, when needed,
related services are provided in addition to special education instruction. Once the child has been identified as a
child with an exceptionality the child need not meet the eligibility criteria for another area of exceptionality in order to
receive related services. The IEP team determines what additional services are necessary for the child to benefit
from the special education services. The IEP team must consider each child's goals and the services or supports
needed to assist the child to achieve them.
Related services are available for exceptional children; however, not all related services are available to children
identified as gifted. To distinguish which related services are or are not available to children identified as gifted refer
to the definitions of a particular related services in K.A.R. 91-40-1.
K.A.R. 91-40-1(ccc) includes the following as related services, which is not an all-inclusive list. Where additional
definitions appear in State regulations, citations are provided with the term.
1. Art therapy
2. Assistive technology devices and services, K.A.R. 91-40-1(c)(d)
3. Audiology, K.A.R. 91-40-1(e)
4. Counseling services, K.A.R. 91-40-1(m)
5. Dance movement therapy
6. Early identification and assessment of disabilities, K.A.R. 91-40-1(t)
7. interpreting services, K.A.R. 91-40-1(kk)
8. Medical services for diagnostic or evaluation purposes, K.A.R. 91-40-1(nn)
9. Music therapy
10. Occupational therapy, K.A.R. 91-40-1(rr)
11. Orientation and mobility services, K.A.R. 91-40-1(ss)
12. Parent counseling and training, K.A.R. 91-40-1(ww)
13. Physical therapy, K.A.R. 91-40-1(yy)
14. Recreation, including therapeutic recreation, K.A.R. 91-40-1(aaa)
15. Rehabilitation counseling services, K.A.R. 91-40-1(bbb)
16. School health services, K.A.R. 91-40-1(fff)
17. School nurse services, K.A.R. 91-40-1(ggg)
18. School psychological services, K.A.R. 91-40-1(hhh)
19. School social work services, K.A.R. 91-40-1(iii)
20. Speech and language, K.A.R. 91-40-1(nnn)
21. Transportation, K.A.R. 91-40-1(vvv)
22. Other developmental, corrective or supportive services
State Regulations:
K.A.R. 91-40-1(ccc)
(ccc) "Related services" means developmental, corrective, and supportive services that are required to assist an exceptional child
to benefit from special education.
(1) Related services shall include the following:
(A) Art therapy;
(B) assistive technology devices and services;
(C) audiology;
(D) counseling services;
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(E) dance movement therapy;
(F) early identification and assessment of disabilities;
(G) interpreting services;
(H) medical services for diagnostic or evaluation purposes;
(I) music therapy;
(J) occupational therapy;
(K) orientation and mobility services;
(L) parent counseling and training;
(M) physical therapy;
(N) recreation, including therapeutic recreation;
(O) rehabilitation counseling services;
(P) school health services;
(Q) school nurse services;
(R) school psychological services;
(S) school social work services;
(T) special education administration and supervision;
(U) special music education;
(V) speech and language services;
(W) transportation; and
(X) other developmental, corrective, or supportive services.
(2) Related services shall not include the provision of any medical device that is surgically implanted, including a cochlear implant,
the optimization of the device's functioning, including mapping and maintenance of the device, and replacement of the device.
K.A.R. 91-40-1(kkk) (2)(3) “Special education” means the following:
(2) paraeducator services, speech-language pathology services, and any other related service, if the service consists of specially designed
instruction to meet the unique needs of a child with a disability;
(3) occupational or physical therapy and interpreter services for deaf children if, without any of these services, a child would have to be
educated in a more restrictive environment;
1.
Surgically Implanted Devices
Related services do not include a medical device that is surgically implanted, including cochlear implants. They also
do not include the optimization of that device’s functioning (e.g., mapping), maintenance, or the replacement of that
device. However, the child with a surgically implanted device may receive any of the related services that the IEP
team determines is necessary for the child to receive FAPE (K.A.R. 91-40-1(ccc)(2)).
The school must appropriately monitor and maintain medical devices that are needed to maintain the health and
safety of the child, including breathing, nutrition, or operation of other bodily functions, while the child is transported to
and from school or is at school. The school must also routinely check external components of a surgically implanted
device to make sure it is functioning properly. (K.A.R. 91-40-3(f)(2); 34 C.F.R. 300.34(b); 34 C.F.R. 300.113(b)(c))
2.
Medical Services and School Health Services
There is an important distinction between "medical services" and "school health services." According to regulation
K.A.R. 91-40-1(nn) (34 C.F.R. 300. 34(c)(5)), medical services are defined as "services provided by a licensed
physician to determine a child's medically related disability that results in the child's need for special education and
related services." Schools are required to provide medical services only for diagnostic or evaluation purposes (34
C.F.R. 300.34(a)).
On the other hand, school health services are to be specified on the IEP of a child with a disability and are provided
by a school nurse or other qualified person (K.A.R. 91-40-1(fff). School nurse services are services provided by a
qualified school nurse (K.A.R. 91-40-1(ggg)). School health services and school nurse services are related services,
which must be provided whenever needed to assist a child with a disability to benefit from special education (K.A.R.
91-40-1(ccc); 34 C.F.R. 300.34(a)).
The United States Supreme Court has clarified the distinction between medical services and health services.
According to the Supreme Court, medical services are services that must be performed by a physician. It is only
those services that require the skills of a physician, therefore, that are limited to diagnostic or evaluation purposes.
Health services that may be performed by persons who are not physicians (nurses or other qualified persons) are
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related services which must be provided by the school when needed to assist a child with a disability to benefit from
special education. In so holding, the Court stated that Clean Intermittent Catheterization, a procedure involving the
insertion of a catheter into the urethra to drain the bladder, was a related service the school must provide to a student
who needs it to benefit from special education (
Irving Independent School Dist. V. Tatro, 468 U.S. 883 (1984)
).
The US Supreme Court reviewed the
Tatro
decision in 1999. See
Cedar Rapids Community Sch. Dist. V. Garret F.,
Sp. Ct. No. 96-1793 (1999)
. In
Garret F.,
the Supreme Court reaffirmed its decision in
Tatro
. The
Garret F.
Court
stated Clean Intermittent Catheterization, continuous one-on-one nursing services, and operation of a ventilator for
life support were not medical services because they did not "demand the training, knowledge, and judgment of a
licensed physician." The Court found these services to be related services, and that the school was required to
provide these services to Garret because he needed such services in order to benefit from his special education
services.
In summary, medical services may be a related service only when it involves a procedure requiring the training,
knowledge, and judgment of a licensed physician. Even then it is limited to diagnostic or evaluation purposes.
Federal regulations and US Supreme Court cases indicate any health-related procedure that does not require the
services of a physician is a related service (school health service), which must be provided by the school when
needed to assist a child with a disability to benefit from special education.
The Kansas Nurse Practice Act addresses the need for appropriate supervision and training for personnel providing
services such as medication administration. Some procedures may not be delegated to personnel other than a nurse
under
any
circumstances. For additional information, please consult the Guidelines for Serving Students with
Special Health Care Needs, July 1996. This document is available through the Kansas Department of Health and
Environment School Nurse Consultant (785-296-7433 or 800-332-6262) or on the KDHE home page:
www.kdhe.state.ks.us .
IDEA 2004 has clarified that parents cannot be required to obtain a prescription for medication for a child as a
condition of attending school, receiving an evaluation or receiving special education and related services (K.S.A. 72-
966(e); 34 C.F.R. 300.174)a)).
Supreme Court Decision
:
When a school district refused to provide certain services to a medically fragile student, the parent requested a due process hearing. The
disputed services were: urinary bladder catheterization, suctioning of tracheotomy, ventilator setting checks, ambu bag administrations as a
back up to the ventilator, blood pressure monitoring, observation to determine if the student was in respiratory distress or autonomic
hyperreflexia, and disimpation in the event of autonomic hyperreflexia. At due process, an administrative law judge [ALJ] ruled that the
district was required to furnish the disputed health care services, as the services were related services. The school district appealed, and a
federal district Court agreed with the ALJ that the district was required to provide the disputed services under the IDEA. On appeal to the 8th
Circuit, the circuit court concluded the services were necessary for the student to attend school. Since the disputed services were not for
diagnostic or evaluative reasons and did not need to be administered by a physician, the district was obligated by the "bright-line" test to
furnish them, according to the circuit court. The school district appealed to the Supreme Court.
HELD: for the parent.
The Supreme Court agreed with the lower courts, finding the district was obligated to provide the disputed services. Looking to the IDEA
definition of "related services" first, the court noted that the district admitted the disputed services were incorporated within the statutory
definition of related services. The disputed services were deemed supportive services, as they were necessary for the student to attend school.
In examining whether the medical services exclusion applied, the court noted that medical services are not explicitly defined within the
statute, but an exclusion exists which limits the required medical services to services for "diagnostic and evaluation purposes." The scope of
this exclusion was addressed by the Supreme Court in the
Tatro
decision, which held medical services are those services that must be
performed by a physician. Applying the reasoning from
Tatro
to the current dispute, because the requested services did not have to be
provided by a physician, the district was required to provide them. The court rejected the proposed multi-factor approach favored by the
district as unsupported by the applicable judicial and statutory precedent. Neither the IDEA nor the IDEA regulations enumerate any type of
multi-factor approach. The district's assertion that the continuous nature of the services required by the student made them medical services
was also rejected. The cost factor, which the district claimed would result in an undue burden, was deemed inconsistent with the purposes of
the IDEA. The purpose of the IDEA was to ensure access to public schools for students with disabilities. The court stated that if it adopted the
district's cost-based standard it would be engaging in inappropriate judicial rule making. For these reasons, the court concluded the IDEA,
Tatro
, and the intent behind the IDEA, all supported the conclusion that the district was required to furnish the student with the requested
services.
Cedar Rapids Community Sch. Dist. V. Garret F., Sp. Ct. No. 96-1793 1999)
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Kansas Statute:
K.S.A. 72-966(e)
(e) Each school board and state agency is prohibited from requiring any child to obtain a prescription for a substance covered by the federal
controlled substances act, 21 U.S.C. 801 et seq., as a condition for the child to attend school or be evaluated or receive special education
services under this act.
Kansas Regulations:
K.A.R.91-40-1(nn)(fff)(ggg)
(nn) “Medical services” means services provided by a licensed physician to determine a child’s medically related disability that results in the
child’s need for special education and related services.
(fff) “School health services” means health services that are specified in the IEP of a child with a disability and that are provided by a school
nurse or other qualified person.
(ggg) "School nurse services" means nursing services that are provided by a qualified nurse in accordance with the child's IEP.
K.A.R. 91-40-3(f) (1)
Each agency shall ensure that hearing aids worn in school by children with hearing impairments or deafness are
functioning properly.
(2) Each agency shall ensure that the external components of surgically implanted medical devices of children with disabilities are
functioning properly. However, an agency shall not be responsible for the maintenance, programming, or replacement of any surgically
implanted medical device or any external component of the device.
3.
Transportation
Transportation is a related service when it is needed in order for the child to benefit from special education. Each
situation is considered individually, and if for a particular child, transportation is required, then the school must
provide it or make other arrangements for the child to be transported. In addition to travel to and from school,
transportation, as a related service, also includes travel between schools as well as travel in and around school
buildings. Thus, the IEP team may need to also assess a child’s ability to access school facilities. Like all related
services, when an IEP team determines it is needed, transportation services will be included on the child's IEP.
State law is clear that a school district is not required to transport a child to a location out of the district of residence.
This would apply if a child attends a child care, preschool program, or after school program that is located in another
district or if the child is attending a private school located in another district and requires special education and
related services from the district of residence. (K.A.R. 91-40-47(c))
If the IEP team determines that the parent will provide transportation that should be indicated on the IEP. For some
children, special considerations for transportation may be necessary. For example, if a child uses a wheelchair, a
bus with a lift may be needed. The IEP for a child with severe asthma who requires air conditioning may need to
specify an air-conditioned bus. A child may need a paraeducator on the bus for his/her safety and well-being. In
determining who should attend the IEP meeting, the IEP team may consider the need to invite the bus driver, if there
are special transportation needs. Behavioral considerations could be an example. Certainly, if a driver was included
in a behavioral intervention plan, s/he could be involved in the development of that plan.
A service somewhat related to transportation is Driver's Education, which is a course some secondary schools
provide for students. If the class is offered for students in the general education curriculum, it must be available for
students receiving special education services, if appropriate. A student with physical disabilities may require an
adapted car to drive. The IEP team should consider what transportation services and supports are needed for each
individual child. If schools need help locating resources for special circumstances, staff is encouraged to call
Special Education Services at 1-800-203-9462.
4.
Interpreting Services
If a child is deaf or hard of hearing and the IEP team determines that s/he needs a sign language interpreter to
receive a free appropriate public education, then that service is required and must be written in the IEP as a special
education service or a related service. The IEP team should also address the need for a sign language interpreter in
nonacademic and extracurricular activities.
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Interpreting services include oral transliteration services, cued language transliteration services, sign language
transliteration and interpreting services, and transcription services, such as communication access real-time
translation (CART), C-Print, and TypeWell. Interpreting services would also include special interpreting services for
children who are deaf-blind (K.A.R. 91-40-1(kk); 34 C.F.R. 300.34(c)(4)).
As any other special education service provider, sign language interpreters must be qualified to provide the related
service. KSDE has determined that to be considered a professional (and access professional-level categorical aid),
the sign language interpreter must be assessed at either Level 4 or 5 of the Educational Interpreter Performance
Assessment (EIPA), or certified at either Level 4 or 5 of the Quality Assurance Screening Test through the Kansas
Commission for the Deaf and Hard of Hearing. See the "Special Education Reimbursement Guide: State
Categorical and Transportation Aid", available on the KSDE home page,
www.kansped.org
under
Resources/Technical Assistance Guidance Documents.
C. SUPPLEMENTARY AIDS AND SERVICES
The IEP team determines what supplementary aids and services and other supports, are to be provided to the child
with a disability or on behalf of the child in general education classes or other education-related settings, and in
extracurricular and nonacademic settings, to enable children
with disabilities to be educated with children without
disabilities to the maximum extent appropriate (the least restrictive environment) (K.A.R. 91-40-1(ttt)). The
supplementary aids and services are to be based on peer-reviewed research to the extent that they are available.
Examples of supplementary aids and services include paraeducator services, assistive technology devices and
services, and other accommodations as appropriate.
1.
Assistive Technology Devices and Services
An example of a supplementary aid or service is assistive technology, which may also be considered as a related
service. An IEP team may determine an evaluation is needed to assess the need for assistive technology devices
and services. If a child needs assistive technology to remain in the general education class or other education-
related setting to enable him/her to be educated with children without exceptionalities to the maximum extent
appropriate, then assistive technology must be listed as a supplementary aid or service on the IEP including the
frequency, location, and duration. (See Appendix A, Figure 5-1, Assistive Technology Checklist)
Questions may arise about the responsibility for maintaining, servicing, repairing, or insuring an assistive technology
device. The Federal definition makes it clear that the school is responsible for maintaining, repairing, and replacing
these devices identified on the IEP. The school may want to revise the district's insurance to cover such equipment,
both on and off campus. If a device is used in the child's home or another location away from the school, the home
insurance, school insurance, or other coverage may be used. In some cases, it may be worthwhile to purchase
special insurance for some devices. For example, if the school has purchased an augmentative communication
device or a hearing aid for a preschool-aged child, the nominal insurance fee may be worth considering, especially if
the child is very active.
Another issue to consider is the need for the assistive technology device at home or in other settings (K.A.R. 91-40-
3(d)(2)). Federal and State regulations make it clear that if the child needs access to the device at home or in other
settings in order to receive a free appropriate public education, then it must be allowed and the IEP should state that
the device is necessary in the non-school setting(s). An important consideration by the IEP team regarding this issue
is that homework and extracurricular activities are an important component of the child's educational experiences.
The school is required to provide the needed assistive technology in a timely manner. Other resources may be
available to loan devices or to help pay for them. Medicaid, the Program for Children with Special Health Care
Needs, private health insurance, service clubs, and other funding sources may be able to pay for equipment. The
Regional Access Sites may also be helpful to schools in locating evaluation and funding resources; call 800-KAN-
DOIT to reach the office nearest your school.
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If a child who needs an assistive technology device is covered by Medicaid insurance, and Medicaid pays for the
device, the device is owned by the child and family. This ownership requirement is consistent with Medicaid rules.
Likewise, if other resources (Special Health Services, civic groups, other organizations) have purchased the assistive
technology device, it belongs to the child and family. Member districts may access The Kansas Infinitec Coalition at
http://www.ks.myinfinitec.org/MyInfinitec/ .
State Regulations:
K.A.R. 91-40-1(c). Assistive technology device
(c) "Assistive technology device" means any item, piece of equipment, or product system, whether acquired commercially off the shelf,
modified, or customized, that is used to increase, maintain, or improve the functional capabilities of a child with a disability. The term shall
not include any medical device that is surgically implanted or the replacement of the device.
K.A.R. 91-40-1(d). Assistive technology service
Assistive technology service means any service that directly assists a child with a disability in the selection, acquisition, or use of an assistive
technology device. This term shall include the following:
(1) Evaluating the needs of a child with a disability, including a functional evaluation of the child in the child’s customary environment;
(2) purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices by children with disabilities;
(3) selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing assistive technology devices;
(4) coordinating and using other therapies, interventions, or services with assistive technology devices, such as those associated with
existing education and rehabilitation plans and programs;
(5) providing training or technical assistance for a child with a disability or, if appropriate, that child's family; and
(6) providing training or technical assistance for professionals including individuals providing education or rehabilitation services,
employers, or other individuals who provide services to, employ, or are otherwise substantially involved in the
major life functions of a child.
K.A.R. 91-40-1(kk). Interpreting services
(kk) "Interpreting services" means the following:
(1) For children who are deaf or hard of hearing, oral transliteration services, cued language transliteration services, sign
language transliteration and interpreting services, and transcription services, including communication access real-time
translation (CART), C-Print, and TypeWell; and
(2) special interpreting services for children who are deaf-blind.
K.A.R. 91-40-1(ttt). Supplementary aids and services.
(ttt) "Supplementary aids and services" means aids, services, and other supports that are provided in regular education classes,
or other
education-related settings, and extracurricular and nonacademic settings to enable children with disabilities to be educated with nondisabled
children to the maximum extent appropriate.
K.A.R. 91-40-3(d). Ancillary FAPE requirements
(1) Each agency shall ensure that assistive technology devices or assistive technology services, or both, are made available to a child with a
disability if required as a part of the child's special education or related services, or the child's supplementary aids and services.
(2) Each agency, on a case-by-case basis, shall allow the use of school-purchased assistive technology devices in a child's home or in other
settings is required if the child's IEP team determines that the child needs access to those devices at home or in other settings in order to
receive FAPE.
2.
Nonacademic and Extracurricular Services
The IEP team must determine whether the child requires supplementary aids and services, that are appropriate and
necessary, to afford the child an equal opportunity for participation in nonacademic and extracurricular services and
activities. These are nonacademic and extracurricular activities that are school sponsored during the regular school
year.
Nonacademic and extracurricular services may include counseling services, athletics, transportation, health services,
recreational activities, referrals to agencies that provide assistance to individuals with exceptionalities, and
employment of students, including employment by the school (K.A.R. 91-40-3(b)(2); 34 C.F.R. 300.107).
Nonacademic and extracurricular activities may include meals, recess, counseling services, athletics, transportation,
health services, recreational activities, special interest groups or clubs sponsored by the school district, referrals to
agencies that provide assistance to individuals with exceptionalities, both employment by the school and assistance
in making outside employment available. Some other school-sponsored events or activities include Student Council,
school dances, school sporting events, school newspaper or yearbook, school plays and musicals, school music
concerts, academically related events like spelling or math bees, and nonacademic events like pep rallies. This list is
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not all-inclusive; many options exist within each school. Appropriate involvement in such activities and events can
enrich the lives of children with disabilities, just as they do for children without disabilities.
In providing or arranging for the provision of nonacademic and extracurricular services and activities, including meals,
recess periods, field trips and the services specified above, the school must ensure that each child with a disability
participates with nondisabled children in the extracurricular services and activities to the maximum extent appropriate
and to the needs of the child (K.A.R. 91-40-3(b)(1); 34 C.F.R. 300.117).
For example, the IEP team might consider if the child could attend an after-school activity, a club, or group meetings
in which other students would participate. Another example might be a football game. If the school district is
sponsoring the freshman class to go to a school football game on a bus, then the IEP team needs to provide an
equal opportunity for that student to participate in that school-sponsored activity. However, if a child simply wishes to
attend a football game in which there is no school-sponsored activity for the class, then that child would not
necessarily require any accommodations provided through the IEP. If a child’s IEP states that the child needs a sign
language interpreter and if this school-sponsored event is after school or on the weekend, then the school needs to
arrange for an interpreter to be available.
State Regulations:
K.A.R. 91-40-3(a)(b). Ancillary FAPE requirements.
(a) Each agency shall ensure that children with disabilities have available to them the same variety of educational programs and services that
are available to nondisabled children served by the agency, including art, music, industrial arts, consumer and homemaking education, and
vocational education.
(b) (1) Each agency shall 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, including the provision of supplementary aids and services as
determined to be necessary by the child's IEP team.
(2) Nonacademic and extracurricular services and activities shall include the following:
(A) Counseling services;
(B) athletics;
(C) transportation;
(D) health services;
(E) recreational activities;
(F) special interest groups or clubs sponsored by the agency;
(G) referrals to agencies that provide assistance to individuals with disabilities; and
(H) employment of students, including both employment by the agency and assistance in making outside employment available.
(c) (1) Each agency shall make physical education services, specially designed if necessary, available to every child with a
disability, unless the agency does not provide physical education to any children who are enrolled in the same grade.
3.
Access to Instructional Materials
States must adopt the National Instructional Materials Accessibility Standard (NIMAS), for the purposes of providing
instructional materials to blind persons, or other persons with print disabilities, in a timely manner. All public
agencies, including the school, shall provide children with disabilities who need instructional materials in accessible
formats, but are not included in the definition of blind, or other persons with print disabilities, or who need materials
that cannot be produced from NIMAS files, receive those instructional materials in a timely manner. The school shall
take reasonable steps to provide instructional materials at the same time as other children receive instructional
materials (34 C.F.R. 300.172(a)(b); 34 C.F.R. 300.210). More information on how to access the National
Instructional Materials Center can be found at
www.kansped.org
.
D. PROGRAM MODIFICATIONS AND SUPPORTS FOR SCHOOL PERSONNEL
Each IEP for a child with an exceptionality must include a statement of the program modifications, or supports for
school personnel that will be provided to the child, or on behalf of the child, to enable the child to participate with
nonexceptional peers to the maximum extent appropriate and to enable the child to advance appropriately toward the
annual goals. The modifications may address various areas including environmental and structural changes, how the
child will participate in direct instruction, learning activities, collaborative work groups, large-group discussions, and
other events occurring in their general education classroom. Necessary modifications for children with
exceptionalities must be documented on the child’s IEP. (K.S.A. 72-987(c)(4); 34 C.F.R. 300.320(a)(4)(i))
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The IEP should also include a statement of the supports for school personnel that need to be provided for each child
to enable him/her to advance appropriately toward attaining their measurable annual goals and to be involved and
progress in the general education curriculum. These supports may include specialized staff development (e.g., learn
sign language, learn a software program the child will use), consultation by a special teacher, or materials or
modifications to the environment.
The program modification and/or supports for school personnel in the IEP must indicate the projected date for the
beginning of the services or supports, including the frequency, location, and duration.
E. INCIDENTAL BENEFIT
Incidental benefit refers to the benefits one or more children with or without exceptionalities receives from the
special education and related services and supplementary aids and services that are provided to a child with an
exceptionality in inclusive settings in a general education classroom. This situation may also apply to other
education-related settings, such as community-based job sites, the school bus, and other settings. Schools may
deliver special education services in the general education classroom with nonexceptional children even if one or
more children without exceptionalities benefit from such services.
Federal Law:
20 USC 1413(a)(4)(A) 300.208(a)(1)
(4) …Funds provided to the local education agency under this part may be used for the following activities:
(A) Services and aids that also benefit nondisabled children for the costs of special education and related services and
supplementary aids and services provided in a regular class or other education-related setting to a child with a disability in
accordance with the individualized education program of the child, even if one or more nondisabled children benefit from
such services.
F. EXTENDED SCHOOL YEAR/DAY SERVICES
When the IEP is developed initially or reviewed annually, the IEP team shall consider the need for extended school
year (ESY) services for children with disabilities. Children identified as gifted are not eligible for extended school
year services. ESY services are different than general education summer school. ESY may or may not be provided
in conjunction with the general education summer school. ESY may be needed by a child even though summer
school is not offered for general education children. In fact, for certain children, services over winter or spring breaks
may be needed. The reason for these services is to ensure the provision of FAPE so that the child can make
progress toward the goals specified on the child’s IEP and to prevent regression, which would impede such progress.
However, if a child with a disability is attending a summer school program for general education purposes, (not
extended school year) the school shall consider what reasonable accommodations/modifications may be necessary
for the child to have an equal opportunity to participate in the general education environment and curriculum. The
necessary supports can be provided through a 504 plan.
The need for ESY is to be decided individually. Therefore, a district shall
not
have a policy that no ESY services will
be provided, that they are only available to a certain group or age of children, or that services are only provided for a
set amount of time or a specified number of days.
The IEP Team may use the following methods to decide if a student with a disability (not students who are gifted)
needs ESY services. Note that each is not mutually exclusive and consideration of all of these factors may be
warranted. These reasons are not all-inclusive.
1. Is a significant regression anticipated if ESY services are not provided? The school is not required to provide
ESY services merely because the student will benefit from them. Instead, the IEP Team should determine if the
regression experienced by the student would significantly affect his/her maintenance of skills and behaviors.
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2. What is the nature and severity of the disability(ies)? Each student’s needs must be considered individually.
3. Are instructional areas or related services needed that are crucial in moving toward self-sufficiency and
independence? Particular consideration for ESY services should be given to students who need instruction in
such self-help skills as dressing or eating, or who need continued structure to develop behavioral control.
4. The IEP Team could use the following information and data in determining the need for ESY services:
a. Teacher assessment of the student’s success with various instructional interventions;
b. Criterion-referenced and standardized test data;
c. Health and health-related factors, including physical and social/emotional functioning;
d. Past educational history, as appropriate, including any ESY services;
e. Direct observation of the student’s classroom performance;
f.
IEP goals and objectives;
g. Student performance (pretest and posttest data);
h. Behavior checklists; and
i.
Parent interviews and student interviews where appropriate.
It is important for the IEP Team to address the educational needs of each student and how they might be addressed,
such as:
•
Scope of the special education instructional services including the duration and content of the program;
•
Which current goals and objectives will be addressed to maintain present skills and behaviors;
•
Implementer(s) of the ESY services;
•
What related services will be made available; and
•
If contracting with other schools or private agencies is needed.
See Appendix A, Figure 5-2, for a sample documentation of ESY. State regulations set forth the following
stipulations for ESY:
State Regulations:
K.A.R. 91-40-1(x). Extended school year services
Extended school year services means special education and related services that are provided to a child with a disability under the following
conditions:
(1) Beyond the school term provided to nondisabled children;
(2) in accordance with the child's IEP; and
(3) at no cost to the parents of the child.
K.A.R. 91-40-3(e). Ancillary FAPE requirements
(1) Each agency shall ensure that extended school year services are available as necessary to provide FAPE to a child with a disability.
(2) An agency shall be required to provide extended school year services only if a child's IEP team determines, on an individual basis, that
the services are necessary for the provision of FAPE to the child.
(3) An agency shall neither limit extended school year services to particular categories of disability nor unilaterally limit the type, amount, or
duration of those services.
1.
Extended School Day Services
In addition to services provided outside the typical school year (number of specified days), children may also need more hours
per day than are typically provided. Such decisions must be made by the IEP team, based upon the decision making process
described in Section F.
G. FREQUENCY, LOCATION, AND DURATION OF SERVICES
Each IEP shall indicate the
projected beginning date and the anticipated frequency, location, and duration for the
special education and related services, supplementary aids and services, and modifications. It is possible that
beginning and ending service dates may vary throughout the year and should be indicated as such on the IEP.
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For data collection purposes KSDE requires that the frequency of the services and modifications be reported as
minutes/days/weeks. This would indicate how many minutes per day, how many days per week and how many
weeks per school year the services would be provided. This information would be determined at the IEP team
meeting when decisions are being made about what services will be provided.
Sometimes it is difficult to be precise in determining just how much service will be required throughout the year.
Sometimes services are provided on an “as needed” basis, such as “reading the math test to the child”. The IEP
should not indicate the services are “as needed”. The provider has to describe when and how the service would be
provided throughout the year. For example, the IEP might say that the math teacher gives a weekly math test over
work covered each week, gives a chapter test at the end of each chapter, and the student is taking the State math
assessment during the year. The student will go to the resource room to have the math tests read to him/her. For
reporting purposes you might estimate based on historical events or current information (use of existing data) that the
total anticipated amount of time would be 1.5 hours per week over 36 weeks—or 90 minutes 1 day per week for 36
weeks.
The location of services would be the school building or other facility and the setting where the services will be
provided. This should be described in the IEP so that the parents and the IEP team members will know where the
child is to receive services, including the building and the extent of the child’s participation with children who are
nondisabled. KSDE requires the use of specific building codes and placement settings for reporting purposes. (For
information on reporting frequency, location and duration of services see the “Data Dictionary” (revised annually) at
www.kansped.org/ .)
The amount of services to be provided must be stated in the IEP so that the level of the school’s commitment of
resources will be clear to parents and other IEP team members. The amount of time to be committed to each of the
various services to be provided must be (1) appropriate to the specific service, and (2) stated in the IEP in a manner
that is clear to all who are involved in both the development and implementation of the IEP (Federal Register, August
14, 2006, p. 46667). In addition, the IEP team addresses the extent, if any, to which the child will not participate with
children without disabilities in the general education curriculum and nonacademic activities.
H. HOME SCHOOLING
Public schools are not required to provide special education and related services for home-schooled children. School districts
are required through Child Find to locate, identify, and evaluate all children residing in the school district, including those who
are home schooled. Further, the school must make a free appropriate public education (FAPE) available to all home-schooled
children if their parents choose to enroll them in the public schools.
Under the definition in State law, home schools are not elementary or secondary schools or "educational institutions." Home
schools also do not fit the definition of a private school, which means "an organization which regularly offers education at the
elementary or seconday 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" (K.S.A. 72-5392(c)). However, if a home-schooled child is found to be a child with an
exceptionality, parents should be informed, in writing
,
that special education and related services are available if the child is
enrolled in the public schools and that the school district "stands ready, willing, and able to provide a free appropriate public
education" to the child.
If the child has been identified as a child with an exceptionality, the district must document that the parents have been
informed of the child's need for services and their availability at the public school. If the school district is aware that an eligible
child is not receiving needed special education and related services due to the parents' refusal to provide or accept the
services identified, the school must determine if it is necessary to report the child as a child in need of care to the Kansas
Department of Social and Rehabilitation Services (SRS), if the child is under age 13, and to the District or County Attorney if
the child is between the ages of 13-18.
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I. SERVICES IN LOCAL DETENTION FACILITIES, JUVENILE JUSTICE AUTHORITY AND DEPARTMENT OF
CORRECTIONS FACILITIES
The local school district is required to provide FAPE according to an IEP that meets the requirements of federal and
state laws and regulations to each student with a disability detained or incarcerated in a local juvenile or adult
detention facility located within its jurisdiction. The requirements concerning placement and LRE may be modified in
accordance with the student’s detention or incarceration.
If a student is in a juvenile correctional facility, the Commissioner of the Juvenile Justice Authority (JJA) is obligated
to make FAPE available according to an IEP that meets the requirements of federal and state laws and regulations
for each student with a disability. Requirements concerning parental rights, placement, and LRE may be modified in
accordance with state and federal laws and the student’s conditions of detention or incarceration.
If a student is in a State adult correctional facility, the Secretary of the Department of Corrections (DOC) is obligated
to make FAPE available according to an IEP that meets the requirements of federal and state laws and regulations
for each student with a disability. However, the correctional institution or facility may modify the student’s IEP or
placement if it can demonstrate a bona fide security or compelling penological interest that cannot otherwise be
accommodated. The following laws and regulations are not required for students in adult correctional facilities:
•
participation of students in state or local assessments; and
•
transition planning and services with respect to any disabled student whose eligibility for special education
services will end, because of the student’s age, before the student is eligible to be released from the
correctional facility based on consideration of the student’s sentence and eligibility for early release.
A student previously identified as gifted only is not entitled to receive special education services while incarcerated.
A student age 18 or over, who is incarcerated in an adult correctional institution or facility and was not identified as a
student with a disability and did not have an IEP in their educational placement prior to incarceration, is not entitled to
FAPE (K.A.R. 91-40-5).
K.A.R. 91-40-5 FAPE for detained or incarcerated children with disabilities.
(a) Local detention facilities.
(1) Subject to the provisions of K.S.A. 72-1046 and amendments thereto, each board shall provide FAPE to each child with a disability
detained or incarcerated in a local juvenile or adult detention facility located within its jurisdiction.
(2) The requirements in this article concerning placement and LRE may be modified in accordance with the child’s detention or
incarceration.
(b) State juvenile correctional facilities.
(1) The commissioner of the juvenile justice authority shall make provision for FAPE for each child with a disability detained or
incarcerated in any state juvenile correctional facility or other facility at the direction of the commissioner.
(2) The requirements in this article concerning parental rights, placement, and LRE may be modified in accordance with state and federal
laws and the child’s conditions of detention or incarceration.
(c) State adult correctional facilities.
(1) Except as otherwise provided in this regulation, provision for FAPE shall be made by the secretary of corrections for each child with
a disability incarcerated in any state correctional institution or facility.
(2) In making provision for FAPE under paragraph (1) of this subsection, compliance with state or federal laws or regulations relating to
the following shall not be required of the secretary of corrections:
(A) Participation of children with disabilities in state or local assessments; and
(B) transition planning and services with respect to any disabled child whose eligibility for special education services will end, because of
the child’s age, before the child is eligible to be released from the secretary’s custody based on consideration of the child’s sentence and
eligibility for early release.
(3) Provision of FAPE to any person incarcerated in a state correctional institution or facility shall not be required by the secretary
of
corrections if the person meets both of the following criteria:
(A) The incarcerated person is at least 18 years of age.
(B) The incarcerated person, in the person’s last educational placement before incarceration, was not identified as a child with adisability.
(4)(A) Except as otherwise provided in paragraph (4)(B) of this subsection, the IEP team of a child with a disability incarcerated
in a state
adult correctional institution or facility may modify the child’s IEP or placement if personnel of the correctional institution or facility
demonstrate a bona fide security or compelling penological interest that cannot otherwise be accommodated.
(B) An IEP team of a child with a disability incarcerated in a state adult correctional institution or facility shall not modify the following
requirements:
(i) That any decision regarding modifications to, and reviews and revisions of, any IEP shall be made by the IEP team; and
(ii)
that, except as otherwise expressly provided in paragraph (c)(2), each IEP shall have the content specified in K.S.A. 72-987
and amendments thereto.
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J. FACILITIES
The State Regulations, K.A.R. 91-40-52(d), include specific provisions regarding the facilities provided for the education of
children with exceptionalities. This regulation requires each agency to provide facilities for children with exceptionalities that
are comparable to those for nonexceptional children. This could be within the same school building as children without
exceptionalities or in a separate facility solely for children with exceptionalities. All facilities must be age-appropriate
environments and be appropriate for the instructional program being provided.
91-40-52. School district eligibility for funding; facilities.
(d) Each agency shall ensure that all of the following requirements concerning facilities are met:
(1) All facilities for exceptional children shall be comparable to those for non-exceptional children within the same school building.
(2) If an agency operates a facility solely for exceptional children, the facility and the services and activities provided in the facility
shall be comparable to those provided to nonexceptional children.
(3) All facilities for exceptional children shall be age-appropriate environments, and each environment shall be appropriate for the
instructional program being provided.
K. QUALIFIED SPECIAL EDUCATION PERSONNEL
Each school district must ensure that all personnel necessary to carry out the requirements of IDEA are appropriately
and adequately prepared and trained. All special education personnel, as appropriate, shall have the content
knowledge and skills to serve children with exceptionalities. This includes special education teachers, related
services personnel and paraeducators. School districts must take steps to actively recruit, hire, train, and retain
qualified personnel to provide special education and related services to children with disabilities. (34 C.F.R. 300.156;
34 C.F.R. 300.207).
Related services personnel must meet the qualifications of the Kansas licensing agency that apply to the professional
discipline in which those personnel are providing special education or related services. Paraeducators must meet the
requirements outlined in the "Special Education Reimbursement Guide: State Categorical and Transportation Aid,”
which is on the KSDE home page at
www.kansped.org
,
under Resources/ Technical Assistance Guidance
Documents.
Each teacher employed by a public school as a special education teacher must meet the requirements as highly
qualified (34 C.F.R. 300.156(c)). This requirement does not apply to teachers hired by private elementary schools
and secondary schools including private school teachers hired or contracted by the school to provide equitable
services to parentally-placed private school children with exceptionalities (34 C.F.R. 300.18(h)).
Special education teachers who provide “direct instruction” in one or more core content areas will need to meet the
highly qualified teacher (HQT) requirements for the content area(s). The content requirements pertain only to
individuals who are coded as “special education” teachers in the Licensed Personnel Report and who provide direct
instruction in a core content area(s) (English Language Arts, Science, Social Studies or Math) for one or more
children. Direct instruction is defined as being either the teacher of record or the teacher responsible for introducing
new content material and providing initial instruction.
Special education teachers who provide “direct instruction” in English Language Arts, Science, Social Studies or
Math have three different options available to use when demonstrating subject matter competency:
1. appropriate content endorsement on teaching license has been designated “HQ”, or
2. pass the appropriate content test (PRAXIS II), or
3. document eleven or more checks on the Kansas HOUSSE document for special education teachers.
For additional information, and to obtain a copy of the Kansas HOUSSE document, go to the Teacher Education and
Licensure website at
www.ksde.org
.
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Federal Regulations
§ 300.18 Highly qualified special education teachers.
(a)
Requirements for special education teachers teaching core academic subjects.
For any public elementary or secondary school special
education teacher teaching core academic subjects, the term
highly qualified
has the meaning given the term in section 9101 of the ESEA and
34 CFR 200.56, except that the requirements for highly qualified also—
(1) Include the requirements described in paragraph (b) of this section; and
(2) Include the option for teachers to meet the requirements of section 9101 of the ESEA by meeting the requirements of
paragraphs (c) and (d) of this section.
(b)
Requirements for special education teachers in general.
(1) When used with respect to any public elementary school or secondary school special education teacher teaching in a State,
highly qualified requires that—
(i) The teacher has obtained full State certification as a special education teacher (including certification obtained
through alternative routes to certification), or passed the State special education teacher licensing examination, and
holds a license to teach in the State as a special education teacher, except that when used with respect to any teacher
teaching in a public charter school, highly qualified means that the teacher meets the certification or licensing
requirements, if any, set forth in the State’s public charter school law;
(ii) The teacher has not had special education certification or licensure requirements waived on an emergency
temporary, or provisional basis; and
(iii) The teacher holds at least a bachelor’s degree.
(2) A teacher will be considered to meet the standard in paragraph (b)(1)(i) of this section if that teacher is participating in an
alternative route to special education certification program under which—
(i) The teacher—(A) Receives high-quality professional development that is sustained, intensive, and classroom-
focused in order to have a positive and lasting impact on classroom instruction, before and while teaching; (B)
Participates in a program of intensive supervision that consists of structured guidance and regular ongoing support for
teachers or a teacher mentoring program; (C) Assumes functions as a teacher only for a specified period of time not to
exceed three years; and (D) Demonstrates satisfactory progress toward full certification as prescribed by the State; and
(ii) The State ensures, through its certification and licensure process, that the provisions in paragraph (b)(2)(i) of this
section are met.
(3) Any public elementary school or secondary school special education teacher teaching in a State, who is not teaching a core
academic subject, is highly qualified if the teacher meets the requirements in paragraph (b)(1) or the requirements in (b)(1)(iii) and (b)(2) of
this section.
(c)
Requirements for special education teachers teaching to alternate achievement standards.
When used with respect to a special education teacher who teaches core academic subjects exclusively to children who are assessed against
alternate achievement standards established under 34 CFR 200.1(d), highly qualified means the teacher, whether new or not new to the
profession, may either—
(1) Meet the applicable requirements of section 9101 of the ESEA and 34 CFR 200.56 for any elementary, middle, or secondary
school teacher who is new or not new to the profession; or
(2) Meet the requirements of paragraph (B) or (C) of section 9101(23) of the ESEA as applied to an elementary school teacher, or,
in the case of instruction above the elementary level, meet the requirements of paragraph (B) or (C) of section 9101(23) of the
ESEA as applied to an elementary school teacher and have subject matter knowledge appropriate to the level of instruction being
provided and needed to effectively teach to those standards, as determined by the State.
(d)
Requirements for special education teachers teaching multiple subjects.
Subject to paragraph (e) of this section, when used with respect to a special education teacher who teaches two or more core academic
subjects
exclusively to children with disabilities, highly qualified means that the teacher may either—
(1) Meet the applicable requirements of section 9101 of the ESEA and 34 CFR 200.56(b) or (c);
(2) In the case of a teacher who is not new to the profession, demonstrate competence in all the core academic subjects in which
the teacher teaches in the same manner as is required for an elementary, middle, or secondary school teacher who is not new to
the profession under 34 CFR 200.56(c) which may include a single, high objective uniform
State standard of evaluation (HOUSSE) covering multiple subjects; or
(3) In the case of a new special education teacher who teaches multiple subjects and who is highly qualified in mathematics,
language arts, or science, demonstrate, not later than two years after the date of employment, competence in the other core
academic subjects in which the teacher teaches in the same manner as is required for an elementary, middle, or secondary school
teacher under 34 CFR 200.56(c), which may include a single HOUSSE covering multiple subjects.
(e)
Separate HOUSSE standards for special education teachers.
Provided that any adaptations of the State’s HOUSSE would not establish a lower standard for the content knowledge requirements for special
education teachers and meets all the requirements for a HOUSSE for regular education teachers—
(1) A State may develop a separate HOUSSE for special education teachers; and
(2) The standards described in paragraph (e)(1) of this section may include single HOUSSE evaluations that cover multiple
subjects.
(f)
Rule of construction.
Notwithstanding any other individual right of action that a parent or student may maintain under this part, nothing in this part shall be
construed to create a right of action on behalf of an individual student or class of students for the failure of a particular SEA or LEA employee
to be highly qualified, or to prevent a parent from filing a complaint under §§ 300.151 through 300.153 about staff qualifications with the
SEA as provided for under this part.
(g)
Applicability of definition to ESEA; and clarification of new special education teacher.
(1) A teacher who is highly qualified under this section is considered highly qualified for purposes of the ESEA.
(2) For purposes of § 300.18(d)(3), a fully certified regular education teacher who subsequently becomes fully certified or licensed
as a special education teacher is a new special education teacher when first hired as a special education teacher.
(h)
Private school teachers not covered.
The requirements in this section do not apply to teachers hired by private elementary schools and secondary schools including private school
teachers hired or contracted by LEAs to provide equitable services to parentally-placed private school children with disabilities under §
300.138.
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§ 300.146 Responsibility of SEA.
Each SEA must ensure that a child with a disability who is placed in or referred to a private school or facility by a public agency—
(a) Is provided special education and related services—
(1) In conformance with an IEP that meets the requirements of §§ 300.320 through 300.325; and
(2) At no cost to the parents;
(b) Is provided an education that meets the standards that apply to education provided by the SEA and LEAs including the requirements of
this part, except for § 300.18 and § 300.156(c); and
(c) Has all of the rights of a child with a disability who is served by a public agency.
§ 300.156 Personnel qualifications.
(a)
General.
The SEA must establish and maintain qualifications to ensure that personnel necessary to carry out the purposes of this part are appropriately
and adequately prepared and trained, including that those personnel have the content knowledge and skills to serve children with disabilities.
(b)
Related services personnel and paraprofessionals.
The qualifications under paragraph (a) of this section must include qualifications for related services personnel and paraprofessionals that—
(1) Are consistent with any State-approved or State-recognized certification, licensing, registration, or other comparable
requirements that apply to the professional discipline in which those personnel are providing special education or related
services; and
(2) Ensure that related services personnel who deliver services in their discipline or profession—
(i) Meet the requirements of paragraph (b)(1) of this section; and
(ii) Have not had certification or licensure requirements waived on an emergency, temporary, or provisional
basis; and
(iii) Allow paraprofessionals and assistants who are appropriately trained and supervised, in accordance with
State law, regulation, or written policy, in meeting the requirements of this part to be used to assist in the
provision of special education and related services under this part to children with disabilities.
(c)
Qualifications for special education teachers.
The qualifications described in paragraph (a) of this section must ensure that each person employed as a public school special education
teacher in the State who teaches in an elementary school, middle school, or secondary school is highly qualified as a special education teacher
by the deadline established in section 1119(a)(2) of the ESEA.
(d)
Policy.
In implementing this section, a State must adopt a policy that includes a requirement that LEAs in the State take measurable steps
to recruit, hire, train, and retain highly qualified personnel to provide special education and related services under this part to children with
disabilities.
(e)
Rule of construction.
Notwithstanding any other individual right of action that a parent or student may maintain under this part, nothing in this part shall be
construed to create a right of action on behalf of an individual student or a class of students for the failure of a particular SEA or LEA
employee to be highly qualified, or to prevent a parent from filing a complaint about staff qualifications with the SEA as provided for under
this part.
§ 300.207 Personnel development.
The LEA must ensure that all personnel necessary to carry out Part B of the Act are appropriately and adequately prepared, subject to the
requirements of § 300.156 (related to personnel qualifications) and section 2122 of the ESEA.
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QUESTIONS AND ANSWERS ABOUT
SPECIAL EDUCATION AND RELATED SERVICES
1. Once a child is determined eligible as gifted, what services is s/he entitled to?
As with all children with exceptionalities, services for children who are gifted are determined on an individual
basis by the IEP team. The IEP team will determine the special education, related services and supplementary
aids and services necessary for the child to advance appropriately toward meeting his/her annual goals. There
may be a need to expand, enrich, or accelerate the curriculum. Children may test out of certain required classes
or prerequisites in order to enroll in more advanced subjects if so specified in their IEP. Advanced placement or
honors classes may be appropriate. In many areas, high school students are allowed to enroll in classes at a
nearby community college or university. If a gifted student chooses to receive college credit for such classes the
student is responsible for tuition costs (K.A.R. 91-40-3(h)). Students identified as gifted only are not entitled to
extended school year or services in a correctional facility
2. Depending on the individual situation, could a school be required to provide a
computer or other assistive technology for a child with a disability in order to allow
that child to remain in the least restrictive environment?
Yes. Children with disabilities are entitled to special education and related services, as well as supplementary
aids and services. As such, if an assistive technology evaluation demonstrated that the child needs an assistive
technology device (e.g., software, computer, writing aids, prone stander, etc.) to remain in the least restrictive
environment, the IEP team would list that service on the IEP, and the school must provide it or ensure that it is
provided.
3. May an IEP include only related services?
Yes, if the child is identified as a child with a disability and needs OT, PT, or Interpreter services to participate in
the least restrictive environment. An IEP may include only related services if the related services consist of
specially designed instruction to meet the unique needs of a child with a disability.
4. If the school has a school-wide Title I program (part of Improving America's School
Act (NCLB)), and the whole school is teaching reading during first hour, is it
permissible for the special education teacher to teach reading during first hour?
Yes. This is permitted under IDEA-04, either in the special education class (no incidental benefit), or in the
general education setting (with incidental benefit). In either situation, the IEP goals of children with disabilities
must be addressed appropriately. A proportionate share of Federal flow-through funds may be allocated toward
schoolwide programs, and should be indicated in the LEA application for Special Education Federal funds.
According to Federal regulation 34 C.F.R. 300.206(b)(2), this proportionate share of funds may be used without
regard for the requirements for expenditures for children with disabilities in the Act. This would include special
education and related services and supplementary aids and services provided in a general education class or
other education-related setting to a child with a disability, in accordance with the IEP of the child, even if one or
more children without disabilities benefit from these services.
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5. May special education paraeducators provide services to children outside of the
classroom? For example, may they assist during recess, lunch, and other school
activities?
Yes. The IEP team is to determine and address needs of the child during nonacademic and extracurricular
activities, as appropriate. If paraeducator services are needed at recess, lunch, club activities, and other times
identified by the IEP team, they would be included on the child's IEP.
6. May special education paraeducators be assigned to general school duties such as
parking lot, recess, lunch, etc.?
The answer to this question would depend on individual job requirements and district policy and expectations.
This is also a funding issue. It may mean that the paraeducator working with general education for a period of
time may not be reimbursed from special education funds for that period. The district may have State special
education funds prorated. Categorical aid reimbursement is based on 100% of the paraeducator's time being
devoted to support activities that are directly related to implementing the child's IEP.
7. May special education paraeducators be asked by their supervising teacher or other
professional to assist with bulletin boards, duplication of materials, clerical duties,
and the like?
Again, the answer would depend on the activities related to the child's IEP, individual job requirements, and
district policy and expectations. There may be funding considerations as in Question #6.
8. May the IEP of a child include transition services at a job located outside of district
boundaries?
Yes, however, this would only apply if the child was placed in that job through a specific provision in the IEP.
The district would need to provide support for the child on-the-job if it was indicated on the child's IEP. The
district could contract with another entity for the support needed by the child. The district would not be required
to provide job support outside of its district if the job placement was made by individuals other than school
personnel and it was not a part of the IEP team decision.
9. The law says that each child with an exceptionality must have an IEP in effect at the
beginning of each school year. Does that mean that the child must begin to receive
the special education and related services specified in the IEP on the very first day of
school?
It depends on the frequency, location, and duration of services documented in the child’s IEP. The IEP team
must make an individual determination regarding when special education and related services will begin and end
for each child. Some services may not be provided to the child until the 2
nd
quarter or second semester of the
school year. Some children with exceptionalities may benefit from having the first week of school in general
education in order to acclimate to new general education teachers, classrooms, expectations, and routines.
Other children, such as children with autism, may need services beginning the very first day of school.
Decisions regarding when special education and related services will begin for a new school year are not to be
based on convenience of school staff, but the individual needs of each child. If the IEP is silent regarding
provision of services during the first and last weeks of a school year, parents often presume that services will be
provided during that time. The IEP is to indicate when services begin and the frequency, location and duration of
the services. This is to be clear to the parents and the providers.
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10. Do special education and related services missed due to events beyond the control of
the school (e.g., school closure due to weather, mandatory emergency drills, or
absence of the child) have to be made up at a later date?
As discussed within this chapter, the IEP team must consider the services needed for the child to address IEP
goals, access the general curriculum, and participate in extracurricular and nonacademic activities with children
without disabilities. In this context, the team should also discuss what is to be done when services are missed.
For example, if a child with learning disabilities needs help taking tests, that service isn't needed if the school is
closed. However, if regular, ongoing physical therapy is needed to maintain mobility, the team must find a way
for the service to be provided if school is closed.
Another consideration for the IEP team is whether a number of missed services would constitute a denial of
FAPE. Again, the team would create a plan for those circumstances.
11. What level of involvement is allowed of the special education teacher in the general
education classroom?
A certified special education teacher cannot be the teacher of a general education classroom and be considered
a special education teacher for full categorical aid reimbursement just because there are children with
exceptionalities in the classroom. In addition, children without exceptionalities are not to be removed from the
general education classroom to receive services from a special education teacher unless the nature and severity
of the exceptionality is such that education in the general education class cannot be achieved satisfactorily with
supplementary aids and services. Special education teachers and related services personnel may co-teach with
a general education teacher, or be in the general education classroom working with children with
exceptionalities. The other children in the general education classroom could receive incidental benefit from the
instruction of the special education teacher when provided to exceptional children.
12. What if the IEP team determines that a student is eligible for ESY services and the
parent indicates the student will not be participating due to other summer
commitments?
If ESY is in the child’s IEP and the parent refuses the services, then the parent may be in violation of the State’s
special education compulsory attendance statute (K.S.A. 72-977). The school district should consider whether a
truancy report is in order, or if another IEP meeting should be held. School districts should anticipate far enough
in advance so that parents can be informed and plan activities around these service times.
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CHAPTER 6
EDUCATIONAL PLACEMENT AND
LEAST RESTRICTIVE ENVIRONMENT
INTRODUCTION
Educational placement refers to the educational environment for the provision of special education and related
services rather than a specific place, such as a specific classroom or school (K.A.R. 91-40-1(t)). The IEP team
makes the decision about the child's educational placement. For children with disabilities, the special education and
related services must be provided in the environment that is least restrictive, with the general education classroom as
the initial consideration. The teams’ decision must be based on the child's needs, goals to be achieved, and the least
restrictive environment for services to be provided. Least restrictive environment (LRE) means the child is provided
special education and related services with peers who are not disabled, to the maximum extent appropriate (K.A.R.
91-40-1(ll)). The IEP Team must consider how the child with a disability can be educated with peers without
disabilities to the maximum extent appropriate, and how he/she will participate with children without disabilities in
other activities such as extracurricular and nonacademic activities.
Placement decisions for all children with disabilities, including preschool children with disabilities, must be determined
annually, be based on the child’s IEP, and be as close as possible to the child’s home. Additionally, each child with a
disability is to be educated in the school the child would attend if the child did not have a disability, unless the child’s
IEP requires some other arrangement (K.A.R. 91-40-21(e)(f)). LRE does not require that every child with a disability
be placed in the general education classroom regardless of the child’s individual abilities and needs. The law
recognizes that full time general education classroom placement may not be appropriate for every child with a
disability. School districts are to make available a range of placement options, known as a continuum of alternative
placements, to meet the unique educational needs of children with disabilities. This requirement for a continuum
reinforces the importance of the individualized inquiry, not a “one size fits all” approach, in determining what
placement is the LRE for each child with a disability. The continuum of alternative educational placements include
instruction in general education classes, special classes, special schools, home instruction, and instruction in
hospitals and institutions (K.A.R. 91-40-21(b); 34 C.F.R. 300.115(b)(1)).
This chapter includes Federal and State requirements for determining educational placement and the following topics
are discussed:
A. Parent Participation
B. Determining Educational Placement
C. Least Restrictive Environment
D. Early Childhood Least Restrictive Environment
E. Recent Case Law
A. PARENT PARTICIPATION
Parents have the right to be part of the decision-making team for determining their child's educational placement and
have input into that decision. In Kansas, placement decisions are made by the IEP team. The parent must be
provided notice of the IEP team meeting at least 10 calendar days prior to the meeting to ensure that parents have
the opportunity to participate. When conducting IEP meetings addressing placement, if neither parent can
participate, the parents and the school may agree to use alternative means of participation in the meeting, such as
video conferences and conference calls. Schools must ensure that parents understand and are able to participate in
any discussions concerning the educational placement of their child. The school must provide an interpreter if
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parents have a hearing impairment, or whose native language is other than English (K.A.R. 91-40-21(d); 34 C.F.R.
300.501(b)(c)(1)(2)(3)).
The team may hold the IEP meeting to determine placement without the parents if the school has made multiple
attempts to contact them and the parent did not respond, or the school is unable to convince them to participate. The
school district is required to have documentation of the attempts made to contact the parents to provide them notice
of the meeting and to secure their participation. The record must have at least two of the following methods:
telephone calls, visits to parents' home, copies of correspondence sent to the parents, and detailed records of other
methods. (K.A.R. 91-40-17(e); 34 C.F.R. 300.501(c)(4)).
Once the IEP team has made the decision on the initial placement of a child with an exceptionality, the parents must
be provided Prior Written Notice about the placement decision and requested to provide consent before initial
provision of special education and related services in the proposed placement. Within the notice requirements,
parents must be informed about the placement options that were considered and the reasons why those options
were rejected. Additionally, for subsequent changes in the IEP, parents must provide consent for any substantial
change in placement (more than 25% of the child’s school day) or material change in services (increase or decrease
of 25% or more of the duration or frequency of a special education service, a related service, or a supplementary aid
or a service) (K.S.A. 72-988(b)(6)). (Chapter 1 of this Handbook includes additional information about Prior Written
Notice requirements.)
State Statute:
K.S.A. 72-962
(aa) "Substantial change in placement" means the movement of an exceptional child, for more than 25% of the child's school day, from a less
restrictive environment to a more restrictive environment or from a more restrictive environment to a less restrictive environment.
(bb) "Material change in services" means an increase or decrease of 25% or more of the duration or frequency of
a
special education service,
a
related service, or
a
supplementary aid or
a
service specified on the IEP of an exceptional child."
K.S.A. 72-988(b)(6)
(6) consent, or refuse to consent, to the evaluation, reevaluation or the initial placement of their child and to any substantial change in
placement of, or a material change in services for, their child, unless a change in placement of their child is ordered pursuant to the provisions
of section 17, and amendments thereto, or the agency can demonstrate that it has taken reasonable measures to obtain parental consent to a
change in placement or services, and the child’s parent has failed to respond. If the parent fails to respond to the request for parental consent to
a substantial change in placement or a material change in services, the agency must maintain detailed records of written and verbal contacts
with the parent and the response, if any, received from the parent;
State Regulations:
K.A.R. 91-40-21(d)
(d)(1) Each agency shall give notice to the parent of any meeting to discuss the educational placement of the child. The notice shall meet the
requirements of K.A.R. 91-40-17.
(2) If a parent cannot participate in person at a meeting relating to the educational placement of the child, the agency shall offer to use
other methods to allow the parent to participate, including conference calls and video conferencing.
(3) An agency may conduct a meeting to determine the appropriate educational placement of a child with a disability without
participation of the child’s parent if the agency, despite repeated attempts, has been unable to contact the parent or to convince the
parent to participate.
(4) If an agency conducts a meeting to determine the appropriate educational placement of a child without the participation of the
child’s parent, the agency shall have a record, as prescribed in K.A.R. 91-40-17(e)(2), of the attempts that the agency made to contact
the parent.
(5) An agency shall take action to ensure that parents understand and are able to participate in, any discussions concerning the
educational placement of their children, including arranging for an interpreter for parents who are deaf or whose native language is
other than English.
K.A.R. 91-40-17(e)
(1) An agency may conduct an IEP team meeting without parental participation if the agency, despite repeated attempts, has been unable to
contact the parents or to convince the parents that they should participate.
(2) If an agency conducts an IEP team meeting without parental participation, the agency shall have a record of the attempts that the agency
made to contact the parents to provide them notice of the meeting and to secure the parents' participation. The record shall include at
least two of the following:
(A) Detailed records of telephone calls made or attempted, including the date, time, and person making the calls and the results of the
calls;
(B) detailed records of visits made to the parents' home or homes, including the date, time, and person making the visit and the results
of the visit;
(C) copies of correspondence sent to the parents and any responses received; and
(D) detailed records of any other method attempted to contact the parents and the results of that attempt
.
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B. DETERMINING EDUCATIONAL PLACEMENT
In determining the educational placement of a child with an exceptionality (including gifted and preschool children
with disabilities), each school district must ensure that the placement decision is made by a group of persons,
including the parents, and other persons knowledgeable about the child, the meaning of the evaluation data, and the
placement options. IEP Teams, including the parents, must make each child’s educational placement decisions on
an individual basis for each child with exceptionalities (K.A.R. 91-40-21(c)). Placement decisions must be based on
the child’s IEP and must be determined at lease annually. For children with disabilities, the placement should as
close to the child’s home as possible, and be in the school the student would normally attend, unless other factors
determine this is not possible (K.A.R. 91-40-21(e)).
The team must consider each child’s unique educational needs and circumstances, rather than the child’s category of
disability. Placement decisions should allow the child with a disability to be educated with nondisabled children to the
maximum extent appropriate. The first placement option considered for each child with a disability is the general
education classroom in the school that the child would attend if not disabled, with appropriate supplementary aids
and services to facilitate this placement. Therefore, before a child with a disability can be placed outside of the
general education environment, the full range of supplementary aids and services that could be provided to facilitate
the child’s placement in the general education classroom setting must be considered. Following that consideration, if
a determination is made that the child with a disability cannot be educated satisfactorily in the general educational
environment, even with the provision of appropriate supplementary aids and services, that child could be placed in a
setting other than the general education classroom (K.S.A. 72-976(a)). (See Section D of this chapter for how these
requirements apply to preschool-aged children.)
Federal and State regulations also preclude removing a child from a general education class just because the
general curriculum must be modified to meet his or her individual needs (34 C.F.R. 300.116(e)). If an entirely
different curriculum is needed for the child's alternate goals, it needs to be determined if appropriate special
education supports (for both the child and teacher) can be appropriately provided within the context of the general
education classroom. It is not the intent to have the general education teacher devote all or most of his/her time to
the child with a disability or to modify the general education curriculum beyond recognition. A child’s removal from
the general education environment cannot be based solely on the category of disability, configuration of the delivery
system, availability of special education and related services, availability of space or administrative convenience.
(See Appendix A, Figure 6-1, LRE Decision Tree and Figure 6-2, LRE Decision Tree Support.)
1.
Continuum of Placement Options
Schools are required to ensure that a continuum of placement options is available to meet the needs of children with
disabilities for special education and related services in the least restrictive environment (LRE). Although, each school is
not required to establish or maintain all options on the continuum, it must make an option available if the individual
needs of a child require a specific placement option. The continuum includes various educational settings, such as
general education class, special classes, special schools, home instruction, instruction in hospitals, and instruction in
institutions (K.A.R. 91-40-21(b); 34 C.F.R. 300.115(b)(1)). This continuum of various types of classrooms and settings in
which special education is provided is intended to ensure that a child with a disability is served in a setting where the
child can be educated successfully with other children without disabilities to the maximum extent appropriate.
In addition, although each school building is not required to be able to provide all the special education and related
services for all types and severities of disabilities at the school, the school district has an obligation to make available a full
continuum of alternative placement options that maximize opportunities for its children with disabilities to be educated with
nondisabled peers to the extent appropriate. In all cases, placement decisions must be individually determined on the
basis of the child’s abilities and needs and on each child’s IEP; and not solely on factors such as category of disability,
severity of disability, availability of special education and related services, configuration of the service delivery system,
availability of space, or administrative convenience. (Federal Register, August 14, 2006, p. 46588.) To help schools make
the full continuum available, K.S.A. 72-967 identifies and authorizes the options that districts have for meeting the
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LRE requirement by providing services within its schools; in the home, hospital, or other facilities; through a contract
with another district; through a cooperative agreement with one or more districts; or through a contract with a private
nonprofit or a public or private institution. Facilities where special education services are provided must be
equivalent to those where general education classes are held.
2.
Harmful Effects
The IEP Team must also consider possible harmful effects in determining the educational placement, both in terms of
the general education setting and a more restrictive setting. The language in 34 C.F.R. 300.116(d) and (K.A.R. 91-40-
21(g) mentions "possible harmful effects on the child or on the quality of services that he or she needs." For example,
the team must consider the distance that the child would need to be transported to another school, if not in the home
school (e.g., length of bus ride, importance of neighborhood friendships, and other such considerations). In addition,
potential disadvantages of being removed from the general education setting must be assessed (such as, what
curriculum content will the child miss when out of the classroom, etc.). Parents and other team members, including the
child's general education teacher, should discuss openly the possibility of supplementary aids and services, and other
supports, that would allow the child to remain in the general education setting. A part of this discussion must include
what is needed for the child to be able to participate and progress in the general education curriculum.
The IEP Team must also consider other harmful effects such as those that may exist when it may be inappropriate to
place a child in a general education classroom. For example, the IEP Team may consider the well-being of the other
children in the general classroom (e.g., would being in the classroom impede the child’s or the ability of other children
to learn). Courts have generally concluded that, if a child with a disability has behavioral problems that are so disruptive
in a general education classroom that the education of other children is significantly impaired, the needs of the child with
a disability generally cannot be met in that environment. However, before making such a determination, schools must
ensure that consideration has been given to the full range of supplementary aids and services that could be provided
to the child in the general education educational environment to accommodate the unique needs of the child with a
disability. If the group making the placement decision determines, that even with the provision of supplementary aids
and services, the child’s IEP could not be implemented satisfactorily in the general education environment, that
placement would not be the LRE placement for that child at that particular time, because her or his unique
educational needs could not be met in that setting.
State Statute: K.S.A. 72-976(a)
(a) Each school district shall be required, to the maximum extent appropriate, to educate children with disabilities with children who are not
disabled, and to provide special classes, separate schooling or for the removal of children with disabilities from the regular education
environment only when the nature or severity of the disability of the child is such that education in regular classes with supplementary aids
and services cannot be achieved satisfactorily.
State Regulation: K.A.R. 91-40-1(t)
(t) "Educational placement" and "placement" mean the instructional environment in which special education services are provided.
K.A.R. 91-40-21(a)(b)(c). Educational placement.
(a) Each agency shall ensure that the children with disabilities served by the agency are
educated in the LRE.
(b) Each agency shall ensure that a continuum of alternative educational placements is available to meet the needs of children with disabilities. These
alternative educational placements shall meet the following criteria:
(1) Include instruction in regular classes, special classes, and special schools; instruction in a child’s home; and instruction in hospitals and other
institutions; and
(2) make provision for supplementary services, including resource room and itinerant services, to be provided in conjunction with regular class
placement.
(c)(1) In determining the educational placement of a child with a disability, including a preschool child with a disability, each agency shall ensure that the
placement decision meets the following requirements:
(A) The decision shall be made by a group of persons, including the child's parent or parents and other persons who are knowledgeable about the
child, the meaning of the evaluation data, and the placement options.
(B) The decision shall be made in conformity with the requirement of providing services in the LRE.
(2) In determining the educational placement of a gifted child, each agency shall ensure that the placement decision is made by a group
of persons, including the child’s parent or parents and other persons who are knowledgeable about the child, the meaning of the
evaluation data, and appropriate placement options for gifted children.
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Federal Regulation:
Sec. 300.116. Placements
In determining the educational placement of a child with a disability, including a preschool child with a disability, each public agency shall
ensure that--
(a) The placement decision--
(1) Is made by a group of persons, including the parents, and other persons knowledgeable about the child, the meaning of the
evaluation data, and the placement options; and
(2) Is made in conformity with the LRE provisions of this subpart, including Secs. 300.550-300.554;
(3) Is as close as possible to the child's home;
(b) The child's placement--
(1) Is determined at least annually;
(2) Is based on the child's IEP; and
(c) Unless the IEP of a child with a disability requires some other arrangement, the child is educated in the school that he or she would
attend if nondisabled.
(d) In selecting the LRE, consideration is given to any potential harmful effect on the child or on the quality of services that he or she needs;
and
(e) A child with a disability is not removed from education in age-appropriate regular classrooms solely because of needed modifications in
the general curriculum.
C. LEAST RESTRICTIVE ENVIRONMENT
The process for determining the least restrictive environment (LRE) must be individualized for each child with a
disability, including preschool age children, children in public schools, private schools, or other care facilities. The
IEP team must ensure that children with disabilities are educated with children who do not have disabilities, to the
maximum extent appropriate. Removing a child from the general education classroom must not occur unless the
nature or severity of the disability is such that education in general education classes with the use of supplementary
aids and services cannot be achieved satisfactorily (K.S.A. 72-976(a)). The IEP must include an explanation of the
extent, if any, that the child will NOT participate with children without disabilities in general education classes AND in
extracurricular and other nonacademic activities (K.S.A. 72-987(c)(5)). The general education environment
encompasses general education classrooms, and other settings in schools such as lunchrooms and playgrounds in
which children without disabilities participate.
When determining the least restrictive environment, IEP teams must consider:
•
Whether the child’s IEP can be implemented in the regular educational environment with the use of
supplementary aids and services (34 C.F.R. 300.114(a)(2)(ii)).
•
Whether placement in the regular classroom will result in any potential harmful effect on the child or on the
quality of services that he needs (34 C.F.R. 300.116(d)).
•
Whether placement in the regular classroom, even with appropriate behavioral interventions, will
significantly impair the learning of classmates (34 C.F.R. 300.324(a)(2)(i)).
The IEP Team must discuss what program modifications or supports for teachers and staff may need to be provided to
enable the child: (1) to advance appropriately in attaining the annual goals listed on the IEP, (2) be involved in and make
progress in the general curriculum and participate in extracurricular and nonacademic activities, and (3) be educated and
participate with other children with and without disabilities in these activities, as appropriate (K.S.A. 72-987(c)(4)).
LRE requirements do NOT apply to children who are identified as gifted (K.A.R. 91-40-21(c)(2)). Children who are
gifted must have an educational placement determined by the IEP Team, based on their individual needs and to
ensure that the child receives FAPE.
State Statute:
K.S.A. 72-976. Requirements for education of children with disabilities in regular classes, exception; admission to state institutions.
(a) Each school district shall be required, to the maximum extent appropriate, to educate children with disabilities with children who are not
disabled, and to provide special classes, separate schooling or for the removal of children with disabilities from the regular education
environment only when the nature or severity of the disability of the child is such that education in regular classes with supplementary aids
and services cannot be achieved satisfactorily.
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K.S.A. 72-987(c)(4)(5)
(4) a statement of the special education and related services and supplementary aids, based on peer-reviewed research to the extent practicable,
and services to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school
personnel that will be provided for the child:
(A) To advance appropriately toward attaining the annual goals;
(B) to be involved in and make progress in the general education curriculum in accordance with provision (1) and to participate in
extracurricular and other nonacademic activities; and
(C) to be educated and participate with other exceptional and nonexceptional children in the activities described in this paragraph;
(5) an explanation of the extent, if any, to which the child will not participate with nonexceptional children in the regular class and in the
activities described in provision (4);
State Regulation:
K.A.R. 91-40-1(ll)
(ll) "Least restrictive environment" and “LRE” mean the educational placement in which, to the maximum extent appropriate, children with
disabilities, including children in institutions or other care facilities, are educated with children who are not disabled, with this placement
meeting the requirements of K.S.A. 72-976, and amendments thereto, and the following criteria:
(1) Determined at least annually;
(2) based upon the student's individualized education program; and
(3) provided as close as possible to the child's home.
K.A.R. 91-40-21. Educational placement
(f) Unless the IEP of a child with a disability requires some other arrangement, the agency shall ensure that the child is educated in the
school that the child would attend if nondisabled.
1.
Supplementary Aids and Services
IEP Teams must consider the supplementary aids and services, and other supports, that may be needed for the child to
be in the general education class, other education-related settings, and in extracurricular and nonacademic settings to
enable children with disabilities to be educated with nondisabled children to the maximum extent appropriate (K.A.R. 91-
40-1(ttt); 34 C.F.R. 300.42). Examples of supplementary aids and services may include paraeducator or interpreter
services, assistive technology devices and services, resource room and itinerant services to be provided in conjunction
with regular class placement (K.A.R. 91-40-21(b)(2)). (See also Chapter 5, Special Education and Related Services.)
In the case of a child who is deaf or hard-of-hearing, a sign language interpreter may be needed to enable the child
to participate in the general education classroom. The sign language interpreter would sign what the teacher and
children say, and if necessary voice what the child who is deaf or hard-of-hearing signs. The teacher and children
may need training about communicating through an interpreter, how best to communicate with the child, and the
interpreter’s role on the educational team. Assistive technology needs of the child may also require training and
ongoing technical assistance for teachers and other staff members (K.A.R. 91-40-1(d); 34 C.F.R. 300.9). For
example, if a communication device is used, school personnel and parents may need training to be able to use the
system initially and thereafter when the device is updated with new vocabulary. The IEP team should identify these
needs for teacher training under supports for school personnel.
2.
Nonacademic and Extracurricular Services and Activities
In order to receive FAPE, children are to be included in more than just classroom activities. The school must ensure
that each child with a disability has the supplementary aids and services determined by the child’s IEP team to be
appropriate and necessary for the child to participate in school sponsored nonacademic and extracurricular settings.
Children with disabilities are to participate with children without disabilities in nonacademic settings and
extracurricular activities, to the maximum extent appropriate. Again, these services or activities must be considered
based on the child’s individual needs. This requirement also applies to children who are being educated solely with
others who have disabilities, including those in public schools, private institutions or other care facilities (K.A.R. 91-
40-3(b); 34 C.F.R. 300.107; 34 C.F.R. 300.117).
The IEP Team is responsible for considering how the child with a disability can participate with children who do not
have a disability in a wide range of possible nonacademic and extracurricular services and activities to the maximum
extent appropriate. Parents and others close to the child should consider what would benefit the child and promote
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the achievement of IEP goals and objectives as well as the provision of access to other children without disabilities.
It is difficult to make general statements about such activities as senior trips, activities sponsored by the Student
Council (technically not school-sponsored), and other such nonacademic activities. Again, such decisions would
need to be made individually by the IEP Team. (See Chapter 5, Special Education and Related Services.)
State Regulation:
K.A.R. 91-40-1(d)
(d) "Assistive technology service" means any service that directly assists a child with a disability in the selection, acquisition, or use of
an assistive technology device. This term shall include the following:
(1) Evaluating the needs of a child with a disability, including a functional evaluation of the child in the child's customary environment;
(2) purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices by children with disabilities;
(3) selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing assistive technology devices;
(4) coordinating and using other therapies, interventions, or services with assistive technology devices, including those associated with
existing education and rehabilitation plans and programs;
(5) providing training or technical assistance for a child with a disability or, if appropriate, that child’s family; and
(6) providing training or technical assistance for professionals including individuals providing education and rehabilitation services,
employers, or other individuals who provide services to, employ, or are otherwise substantially involved in the major life functions of a
child.
K.A.R. 91-40-1(ttt)
(ttt) "Supplementary aids and services" means aids, services, and other supports that are provided in regular education classes,
or other
education-related settings, and extracurricular and nonacademic settings to enable children with disabilities to be educated with nondisabled
children to the maximum extent appropriate.
K.A.R. 91-40-3(b)(d)
(b) (1) Each agency shall 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, including the provision of supplementary aids and services as
determined to be necessary by the child's IEP team.
(2) Nonacademic and extracurricular services and activities shall include the following:
(A) Counseling services;
(B) athletics;
(C) transportation;
(D) health services;
(E) recreational activities;
(F) special interest groups or clubs sponsored by the agency;
(G) referrals to agencies that provide assistance to individuals with disabilities; and
(H) employment of students, including both employment by the agency and assistance in making outside employment available.
(d) (1) Each agency shall ensure that assistive technology devices or assistive technology services, or both, are made available to a child with
a disability if required as a part of the child’s special education or related services, or the child’s supplementary aids and services.
(2) Each agency, on a case-by-case basis, shall allow the use of school-purchased assistive technology devices in a child’s home or in
other settings if the child’s IEP team determines that the child needs access to those devices at home or in other settings in order to
receive FAPE.
Federal Regulations:
Sec. 300.117. Nonacademic settings
In providing or arranging for the provision of nonacademic and extracurricular services and activities, including meals, recess periods, and the
services and activities set forth in § 300.107, each public agency must ensure that each child with a disability participates with nondisabled
children in the extracurricular services and activities to the maximum extent appropriate to the needs of that child. The public agency must
ensure that each child with a disability has the supplementary aids and services determined by the child’s IEP Team to be appropriate and
necessary for the child to participate in nonacademic settings.
3. Policies of the Kansas State Board of Education
The Kansas State School Board issued a policy on Least Restrictive Environment on May 20, 1994 (Appendix A,
Figure 6-2). All provisions of this policy remain in effect, because they are consistent with current laws and
regulations.
In addition, the Kansas State Board of Education has developed a policy regarding the Kansas State Schools for the
Deaf and Blind (See Appendix A, Figure 6-3, KSBE Policy). According to this policy, when a student is to be placed
at one of the State schools, the local district AND the parents are jointly responsible for applying for admission to the
school. However, the steps preceding the admissions application require the local district and parents to:
1. Complete the initial evaluation or reevaluation;
2. Conduct an IEP meeting;
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3. Determine the educational placement;
4. If a representative from the State school was not in attendance, hold a placement meeting with the
representative(s) from the State school to finalize the IEP;
5. Obtain informed parent consent for services and placement; and
6. Initiate the admissions application with the parents.
In developing the IEP, the team must also plan opportunities for access to educational programs in local school
districts near the State school, either part- or full-time. Under K.A.R. 91-40-4, Conditions for Admission, the following
requirements are included:
State Regulations:
K.A.R. 91-40-4. FAPE for exceptional children housed and maintained in certain state institutions.
(a) Subject to K.S.A. 72-1046 and amendments thereto, each state agency shall provide FAPE to exceptional children housed and
maintained at any facility operated by the agency. All educational programs shall comply with the requirements of state special education
laws and regulations.
(b) State schools.
(1) The procedures for placing Kansas residents into the Kansas state school for the blind and the Kansas state school for the deaf shall meet
the following requirements:
(A) Admission procedures shall be initiated by the child's home school district and by the child's parent or parents.
(B) Placement of any child in a state school shall be made only after the local school district and the child's parent or parents have considered
less restrictive placement options.
(C) Placement shall be based on a child’s IEP, which shall indicate a need for educational services provided at the state school.
(D) Any agency may refer a child to a state school for a portion or all of the child’s evaluation. In such a case, a representative or
representatives from the agency shall be included in any meeting at which the child’s eligibility for services or placement is determined.
(E) If the initial evaluation and staffing are conducted by any local school district and if one of the state schools is proposed as a placement
for the child, a representative or representatives from the state school shall be included in the meeting at which placement for the child is
determined.
(2) Personnel from the child's home school district, as well as personnel from the state school and the child's parent or parents, shall be
afforded an opportunity to participate in any IEP meeting for the child. Placement of the child in the home school district shall be considered
at each annual IEP meeting.
(3) Each state school shall attempt to make arrangements so that each child enrolled in the state school has access to the educational programs
in the local school districts near the location of the school, on either a part-time or full-time basis.
(4) If a state school determines that its program is not appropriate for a student and it can no longer maintain the student in its program, the
state school shall give the district of residence of the student at least 15-day notice of this determination.
4.
Children in Other Educational Placements
Schools are responsible to ensure that LRE requirements are being applied to children who have been placed by the
public school in private institutions or other care facilities. As IEP teams make educational placement decisions
about children for whom they do not have an appropriate program at the public school, they must consider all LRE
requirements carefully. (See Chapter 14 in this Handbook, Children in Private Schools.)
The LRE requirement may be modified for students who are incarcerated in local detention facilities, a state juvenile
correctional facility or an adult correctional institution (K.A.R. 91-40-5).
State Regulations:
K.A.R. 91-40-5(b)(2)
(b) State juvenile correctional facilities.
(1) The commissioner of the juvenile justice authority shall make provision for FAPE for each child with a disability detained or
incarcerated in any state juvenile correctional facility or other facility at the direction of the commissioner.
(2) The requirements in this article concerning parental rights, placement, and LRE may be modified in accordance with state and
federal laws and the child’s conditions of detention or incarceration.
K.A.R. 91-40-21(a)(b)
Educational placement.
(a) Each agency shall ensure that the children with disabilities served by the agency are educated in the LRE.
(b) Each agency shall ensure that a continuum of alternative educational placements is available to meet the needs of children with disabilities. These
alternative educational placements shall meet the following criteria:
(1) Include instruction in regular classes, special classes, and special schools; instruction in a child’s home; and instruction in hospitals and other
institutions; and
(2) make provision for supplementary services, including resource room and itinerant services, to be provided in conjunction with regular class
placement.
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K.A.R. 91-40-22
Agency placement in private schools or facilities. (a) If an agency places a child with a disability in a private school or facility as a means of
providing FAPE to the child, the agency shall remain responsible for ensuring that the child is provided the special education and related
services specified in the child’s IEP and is afforded all the rights granted by the law.
(b)(1) Before an agency places a child with a disability in a private school or facility, the agency shall initiate and conduct a meeting to
develop an IEP for the child.
(2) The agency shall ensure that a representative of the private school or facility attends the meeting. If a representative cannot attend,
the agency shall use other methods to ensure participation by the private school or facility, including individual or conference telephone
calls.
(c)(1) After a child with a disability enters a private school or facility, the agency responsible for providing FAPE to the child may allow any
meetings to review and revise the child’s IEP to be initiated and conducted by the private school or facility.
(2) If the private school or facility initiates and conducts these meetings, the agency shall ensure that the parent and an agency
representative are involved in any decision about the child’s IEP and shall agree to any proposed changes in the IEP before those
changes are implemented.
5.
Support for Staff
Schools must ensure that all teachers and administrators know their responsibilities in ensuring LRE, and that they
are provided with the needed technical assistance and training. Considerations might include: providing written
information to staff; offering ongoing in-service training, professional development, results-based staff development;
individual technical assistance; or mentoring by experienced teachers and administrators.
Schools must consider the supports that all general and special education teachers and related services personnel
need to maintain a child in the LRE. Such support might include training for the general education teacher,
paraeducators and other personnel. Special educators or related services personnel might provide this training
regarding supports that are required. Other examples would be the supports that staff need to implement a child's
behavioral intervention plan, such as training regarding modeling, providing positive feedback, and offering peer
interactions as appropriate. (34 C.F.R. 300.119 and 300.320(a)(4))
Federal Regulations:
Sec. 300.119. Technical assistance and training activities
Each SEA shall carry out activities to ensure that teachers and administrators in all public agencies--
(a) Are fully informed about their responsibilities for implementing Sec. 300.550; and
(b) Are provided with technical assistance and training necessary to assist them in this effort.
Sec. 300.320(a)(4)
(4) A statement of the special education and related services and supplementary aids and services to be provided to the child, or on behalf
of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child--
(i) To advance appropriately toward attaining the annual goals;
(ii) To be involved and progress in the general curriculum in accordance with paragraph (a)(1) of this section and to participate in
extracurricular and other nonacademic activities; and
(iii) To be educated and participate with other children with disabilities and nondisabled children in the activities described in this
section;
D. EARLY CHILDHOOD LEAST RESTRICTIVE ENVIRONMENT
For preschool children ages 3-5 with disabilities, placement and LRE requirements are the same as for school-aged
children (K.A.R. 91-40-21(b)(c)). This means that preschool children with disabilities are to have a continuum of
placement options available and have the right to be educated with their peers without disabilities to the maximum
extent appropriate. As with school-aged children, the needs of preschoolers are to be considered individually, and
the individual needs of the child would determine the most appropriate setting for services to be provided. Most
preschoolers benefit from placement in a preschool program with typically developing peers.
School districts that do not operate programs for preschool children without disabilities are not required to initiate
general education programs solely to satisfy the LRE requirements. However, many school districts provide early
childhood services to children without disabilities in programs such as 4-year-old at-risk preschools, child care
centers, Parents as Teachers, and various other early childhood settings all constituting general education
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environments. School districts that do not operate early childhood programs for children without disabilities may seek
alternative means to provide inclusive options for young children through collaborative relationships with private
preschool programs or other community-based settings. If a preschool child with a disability is already attending a
general education preschool program, the IEP team should consider whether special education and related services
can be provided in that setting with the use of supplementary aids and services, or supports for school personnel
(Federal Register, August 14, 2006, p. 46589).
Various educational placement options are possible, both within the community and at the school. The key question
for the IEP Team to consider is where this child would be if s/he did not have a disability. The full continuum of
placement options at K.A.R. 91-40-21(b), including integrated placement options with typically developing peers,
must be available to preschool children with disabilities. Examples include Head Start, community-based preschools
(may be in churches, whether or not religiously affiliated), child care centers or family child care homes, mothers’-
day-out programs, Title I programs, at-risk 4-year-old preschools, migrant or bilingual programs, Even Start, play
groups, and other such early childhood programs. For children who are age 5 by August 31, kindergarten would be
the least restrictive environment, to the extent appropriate. Note that children with IEPs cannot be counted for
general fund reimbursement in the 4-year-old at-risk preschool program, but they may participate in the program.
The regulations allow school districts to choose an appropriate option to meet the LRE requirements. Schools are
encouraged to explore and use community resources to provide comprehensive services. Paying for the placement
of preschool children with disabilities in a private preschool with children without disabilities is one, but not the only,
option available to school districts to meet the LRE requirements. However, if a school district determines that
placement in a private preschool program is necessary as a means of providing special education and related
services to a child with a disability, the program must be at no cost to the parent of the child.
E. RECENT CASE LAW
For the first time, the United States Circuit Court of Appeals for the 10
th
Circuit, adopted a legal standard (the “Daniel
R.R.” test) for determining least restrictive environment in L.B. and J.B v. Nebo Sch. Dist., 379 F3d 966, 41 IDELR
206 (10
th
Cir. 2004). Subsequently, in T.W. v. United Sch. Dist. No 259, Wichita, Kansas, 136 Fed. Appx. 122, 43
IDELR 187, (10
th
Cir. 2005), the 10
th
Circuit affirmed that the “Daniel R.R.” test would continue to be the legal
standard for determining the least restrictive environment for children with disabilities in the 10
th
Circuit—which
includes Kansas. The Daniel R.R. test has two parts:
Part 1: In determining whether a particular placement is the least restrictive environment for a particular child,
the court first determines whether education in a regular education classroom, with the use of supplemental
aids and services, can be achieved satisfactorily. If the court determines that a child can be satisfactorily
educated in a regular education classroom with the use of supplemental aids and services, then the regular
education classroom is the least restrictive environment for that child and there is no further analysis.
Part 2: However, if the court determines that the child cannot be satisfactorily educated in the regular
education classroom, even with the use of supplemental aids and services, the court then proceeds to the
second part of the test by determining whether the school district has mainstreamed the child to the maximum
extent appropriate. In other words, the court looks to see if the placement selected by the IEP team enables
the child to have contact with nondisabled students to the maximum extent appropriate. If the placement
selected by the IEP team does mainstream the child to the maximum extent appropriate, then the placement is
the least restrictive environment for that child.
In applying these two parts of the Daniel R.R. test to a particular placement, the court considers the following non-
exhaustive factors:
1. Steps the school district has taken to accommodate the child in the regular education classroom, including
the consideration of a continuum of placement and support services;
2. Comparison of the academic benefits the child will receive in the regular classroom with those he/she will
receive in the special education classroom;
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3. The child’s overall educational experience in regular education, including nonacademic benefits; and
4. The effect on the regular classroom of the disabled child’s presence in that classroom.
The 10
th
Circuit has instructed that this list of considerations is not exhaustive, and that other considerations may also
be appropriate in a particular case. For example, some courts have considered the cost of mainstreaming a child in
the analysis. The 10
th
Circuit did not consider the cost of mainstreaming the child in either of the cases in which it
used the Daniel R.R. standard because costs were not presented as an issue in either case. However, the 10
th
Circuit did not rule out consideration of the costs of a particular placement if it was presented as an issue in a case
regarding least restrictive environment.
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QUESTIONS AND ANSWERS ABOUT EDUCATIONAL PLACEMENT
AND LEAST RESTRICTIVE ENVIRONMENT
1. Does the school have to provide aids and services to assist the child to be in a
general education classroom? What if the school says that providing those aids and
services is too expensive?
The district must provide supplementary aids and services to accommodate the special educational needs of
children with disabilities in the general curriculum in the least restrictive environment. In a Federal appellate
court decision,
Roncker v. Walter, 700 F. 2d 1058 (6
th
Cir.), cert. denied, 464 U.S. 864 (1983)
, the court made
the following statements about LRE:
The
Roncker
Court also noted that:
“Cost is a proper factor to consider since excessive spending on one child with a disability
deprives other students with disabilities. Cost is no defense, however, if the school district has
failed to use its funds to provide a proper continuum of placement options for students with
disabilities. The provision of such placement options benefits all children with disabilities.”
In other words, the law, regulations, and court decisions all presume in favor of maximum appropriate contact
with children without disabilities.
2. What if the school says the child cannot be included because s/he cannot benefit
academically from instruction in the general education class?
The school should not make such an assertion. The Federal District Court in
Sacramento City Unified School
District v. Holland
(1992), said the law requires educating a child with disabilities in a general education
classroom if the child can receive a satisfactory education there, even if it is not the best academic setting for the
child. The court looked at whether the child’s IEP goals and objectives could be met in the classroom by
adapting the curriculum, or by providing supplementary aids and services. The school district in
Holland
argued
that a general education classroom would not be appropriate for a student if that would require significant
changes to the general curriculum for the child. However, the court rejected the school’s view. It said that
students with disabilities may require and be entitled to substantial curriculum changes to be sure they benefit
from being in the general education class. The court stated that “modification of the curriculum for a student with
a disability, even dramatic modification, has no significance in and of itself. The IDEA, in its provision for the IEP
process, contemplates that the academic curriculum may be modified to accommodate the individual needs of
students with disabilities.”
“[IDEA] does not require states to offer the same educational experience to a student with disabilities as is
generally provided for students without disabilities.... To the contrary, states must address the unique needs of a
child with disabilities, recognizing that the student may benefit differently from education in the regular classroom
than other students.... In short, the fact that a child with disabilities will learn differently from his or her education
within the regular classroom does not justify exclusion from that environment”
Oberti v. Board of Education of the
Borough
of
Clementon School District (3
rd
Cir. 1993)
.
If an entirely different curriculum is needed for the child's alternate goals, it needs to be determined if appropriate
special education supports (for both the child and teacher) can be most appropriately provided within the context
of the general education classroom. It is not the intent to have the general education teacher devote all or most
of his/her time to the child with a disability nor to modify the general education curriculum beyond recognition.
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3. What are supplementary aids and services that would help the child in the general
education classroom?
The law is very broad and includes: “aids, services, and other supports that are provided in regular education
classes or other education-related settings to enable children with disabilities to be educated with nondisabled
children to the maximum extent appropriate...” Supplementary aids and services might include paraeducator
services, assistive technology devices and services, and other accommodations, as appropriate.
4. If the child is not placed in a general education classroom, does the district have any
other LRE responsibilities?
Even if the child is not placed in a general education classroom, the school district must still find ways for the
child to be with children without disabilities in noneducational and extracurricular activities as much as is
appropriate to the child’s needs. Where the district suggests a placement other than a general education
classroom, the Prior Written Notice form for informed written consent must list other placement ideas that were
considered and the reasons they were rejected. Also, according to 34 C.F.R. 300.320(a)(5), the IEP Team must
document in the IEP the extend to which the child will not participate with nondisabled children in the regular
class and in other school activities. The IEP Team may also address the potential for moving to a less restrictive
environment in the future. The LRE for each child must be considered annually to determine whether the current
placement is appropriate.
5. Is there anything that the district may
not consider in deciding LRE?
The district may not make placement decisions based only on such things as the category or severity of the
child’s disability, convenience of staff, the choices for placement options currently available, the availability of
educational or related services, space availability, availability of staff, bus routes, or administrative convenience.
6. If a child is not placed in the general education classroom, can s/he participate in
other school activities or services?
Yes. The law is clear that children with disabilities have the right to participate in nonacademic and
extracurricular services and activities with children who do not have disabilities to the maximum extent
appropriate to their needs (34 C.F.R. 300.117). Also, school districts must provide these activities in a way that
gives children with disabilities an equal opportunity to participate (34 C.F.R. 300.107). Such services and
activities include:
•
lunch
•
counseling services
•
recess
•
transportation
•
athletics
•
recreational activities
•
health services
•
special interest groups or clubs
•
employment opportunities
7. May the nature or severity of a child’s disability be used to justify a segregated
educational setting?
All children with disabilities have the right to an education in the least restrictive environment based on their
individual educational needs, not the “label” that describes their disability. Schools must ensure that to the
maximum extent appropriate, children with disabilities, including children in public or private institutions or other
care facilities, are educated with children who are nondisabled.
Special classes, separate schooling, or other removal of children with disabilities from the general education
environment occurs only if the nature of severity of the disability is such that education in general education
classes with the use of supplementary aids and services cannot be achieved satisfactorily (34 C.F.R.
300.114(2)).
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8. What responsibility does the general education staff have in serving children in the
least restrictive environment?
Both general and special educators are required to be members of IEP Teams who make decisions about
services needed by eligible children and where they should be provided. This is a mutual responsibility for
general and special education staff. The IEP Team is required to consider the supplementary aids and services
needed for a child to be successfully educated in the general education classroom. Some examples are:
•
Aids to assist the child
•
Class/environmental accommodations
•
Adaptive equipment
•
Adapted/modified/enriched curriculum
•
Co-teaching staff
•
Classroom tests modified or accommodated
•
Assistive technology
•
Training or supports for the teacher.
These strategies can be used in any class, including classes like physical education, art, music, and vocational
education. Teacher-made tests can include any accommodations the child needs; with regard to State and
district-wide assessments, however, IEP teams should be careful to avoid specifying accommodations that
would invalidate the tests.
The IEP Team must include at least one of the child’s general education teachers, if the child is or may be
participating in general education classes. The general education teacher must, as much as is appropriate, help
develop the IEP. This includes helping to decide things like appropriate positive behavioral interventions and
strategies, supplementary aids and services, program modifications, and support for school staff in providing the
supplementary aids and services and program modifications. After the initial IEP has been developed, the
general education teacher must also help review and revise the IEP. The IEP Team must also have a school
person who is knowledgeable about the general curriculum and what resources are available in the district. The
school is responsible for providing the services on the IEP. That means both special and general education
teachers must assist in determining the services and ensuring that appropriate services are provided.
9. What if the school district has a policy that related services are available only at a
segregated location?
A policy of this nature is against the law. The school cannot legally have a policy that predetermines placement
for related services. The district must provide the needed related services to meet individual needs of the child
in the least restrictive environment. Decisions about location of services is determined by the IEP Team.
The Office of Special Education Programs says:
“The determination of appropriate program placement, related services needed, and curriculum
options to be offered is made by the IEP team based upon the unique needs of the child with a
disability rather than the label describing the disabling condition or the availability of programs.”
10. Does LRE apply to preschool?
Yes, LRE requirements apply to children who are ages 3 through 5. Some settings for LRE for preschool to
serve children where they would be if not disabled include:
•
Public school preschools
•
Community preschool
•
Head Start
•
Child care
•
Play groups
•
Kindergarten for 5 year old
11. Does LRE apply to children who are gifted, or just to those with disabilities?
According to K.A.R. 91-40-21, LRE and the continuum of services do not apply to children who are gifted.
However, individual placement decisions must be made according to the unique needs of each child and to
ensure that the child receives FAPE.
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12. If services are needed during an extracurricular activity, do we need a goal that
addresses it?
No. The IEP Team is required to address how children will participate with others who do not have disabilities
during nonacademic and extracurricular activities. Services may be listed to meet those needs, without having a
specific goal.
13. Is parent consent required when moving a child from placement in a neighboring
district back to the home district?
No, if the placement in both districts is the same place on the continuum and the child has the same opportunity
to participate with peers without disabilities. If the IEP specifies a certain classroom in a certain school, then
consent would be required. Placement is not determined by the name of the building, rather it is the place on the
continuum of service environments. For example, if the IEP reads "services will be provided in Mrs. Jones' 4
th
grade class at Eisenhower Elementary School," then parent permission would be needed to move the student
from Mrs. Jones’s classroom. However, if the IEP reads "services will be provided in a regular 4
th
grade
classroom," then parent permission would not be needed, if everything else stayed the same. Placement is not
the same as location.
14. Is moving a child from a regular bus to a special education bus a change of
placement?
Yes, since a special education bus is a more restrictive setting than a regular education bus (34 C.F.R. 300.107).
Nonacademic services, lists transportation as a service (34 C.F.R. 300.117). Nonacademic settings, ties
transportation to ensuring a child with disabilities participates with children without disabilities. If the change is
made, the IEP Team would need to provide Prior Written Notice, and if it is a material change in services the
district would need to obtain consent prom the parent.
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CHAPTER 7
REEVALUATION
INTRODUCTION
An evaluation that is conducted at any time after an initial evaluation and initial determination of eligibility as a child
with an exceptionality, is considered a reevaluation. Schools must ensure that a reevaluation of each child with an
exceptionality is conducted if conditions warrant a reevaluation, or if the child's parents or teacher requests a
reevaluation, but at least once every three years. Reevaluations may not occur more than once a year, unless the
parent and the school agree otherwise. New requirements also allow the parent and the school to agree that a three
year reevaluation is not necessary (K.S.A. 72-986(h)(2)(B); 34 C.F.R. 300.303(b)(2)).
Most components of the reevaluation process are identical to those required for initial evaluation. See Chapter 3,
Initial Evaluation and Eligibility, for a complete explanation of the evaluation process. However, there may also be
some differences from the initial evaluation. The specific individuals on the reevaluation team may be different than
they were for the initial evaluation. The roles are the same, but the people themselves may be different. A report of
the reevaluation must be written and provided to the parents. Under certain circumstances the reevaluation may be
conducted without parent consent. This chapter includes a discussion of the following topics:
A. Purpose of the Reevaluation
B. Need for the Reevaluation
C. Prior Written Notice and Request for Consent
D. Members of the Reevaluation Team
E. Conducting the Reevaluation
F. Determining Continued Eligibility
G. Reevaluation for A Child Identified as Developmentally Delayed
A. PURPOSE OF THE REEVALUATION
The reevaluation process is required every three years, or more often, if needed, to determine:
1. If the child continues to be a child with an exceptionality;
2. the educational needs of the child;
3. the present levels of academic achievement and functional performance (related developmental needs) of
the child;
4. whether the child continues to need special education and related services; and
5. 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.
The information gathered as a result of the reevaluation provides valuable information about child progress and
needs. In addition to using the information to determine whether the child continues to be eligible for special
education and related services, this information should be used to review the IEP, revising it if necessary, in
accordance with K.S.A. 72-986(h)-(l), as well as 34 C.F.R. 300.301 through 300.311:
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Kansas Statute:
K.S.A. 72-986(h)-(l)
(h) (1) Each agency shall ensure that a reevaluation of each exceptional child is conducted:
(A) If the agency determines that the educational or related services needs of the child, including academic achievement or functional
performance, warrant a reevaluation; or
(B) if the child’s parent or teacher requests a reevaluation.
(2) An agency shall conduct a reevaluation of a child:
(A) Not more frequently than once a year, unless the parent and the agency agree otherwise; and
(B) at least once every three years, unless the parent and the agency agree that a reevaluation is unnecessary.
(i) As part of an initial evaluation, if appropriate, and as part of any reevaluation under this section, the IEP team and other qualified
professionals, as appropriate, shall:
(1) Review existing evaluation data on the child, including evaluations and information provided by the parents of the child, current
classroom-based assessments and observations, and teacher and related services providers’ observations; and
(2) on the basis of that review, and input from the child’s parents, identify what additional data, if any, are needed to determine:
(A) Whether the child is an exceptional child and the educational needs of the child, or in the case of a reevaluation of a child, whether
the child continues to be an exceptional child and the current educational needs of the child;
(B) the present levels of academic and related needs of the child;
(C) whether the child needs special education and related services; or in the case of a reevaluation of a child, whether the child continues
to need special education and related services; and
(D) 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.
(j) Each agency shall obtain informed parental consent prior to conducting any reevaluation of an exceptional child, except that such informed
consent need not be obtained if the agency can demonstrate that it took reasonable measures to obtain such consent and the child’s
parent failed to respond.
(k) If the IEP team and other qualified professionals, as appropriate, determine that no additional data are needed to determine whether the
child continues to be an exceptional child and the child’s educational needs, the agency:
(1) Shall notify the child’s parents of:
(A) That determination and the reasons for it; and
(B) the rights of such parents to request an assessment to determine whether the child continues to be an
exceptional child and the child’s educational needs; and
(2) shall not be required to conduct such an assessment unless requested
by the child’s parents.
(l) (1) Except as provided in paragraph (2), an agency shall reevaluate a child in accordance with this section before determining that the child
is no longer an exceptional child.
(2) A reevaluation of a child shall not be required before termination of a child’s eligibility for services under this act due to graduation
from secondary school with a regular diploma, or due to exceeding the age for eligibility for services under this act.
B. NEED FOR THE REEVALUATION
A reevaluation must be conducted if the school determines that the education or related services needs, including
improved academic achievement and functional performance of the child, warrant a reevaluation, or, if the child’s parent
or teacher requests a reevaluation. A reevaluation must be conducted before a school determines a child is no longer
a child with an exceptionality.
However, a reevaluation shall not occur more than once a year, unless the
parent and the school agree otherwise
(K.S.A. 72-986(h)(1)(2)(A); 34 C.F.R. 300.303(b)(1) ).
If a parent requests a reevaluation, or more than one reevaluation per year, and the school disagrees that a reevaluation
is needed, the school must provide Prior Written Notice to the parent that explains, among other things, why the school
refuses to do the reevaluation and the parent’s right to pursue the reevaluation through mediation or due process.
A reevaluation is to occur at least once every 3 years, unless the parent and the school agree that a
reevaluation is unnecessary
(K.S.A. 72-986(h)(2)(B); 34 C.F.R. 300.303(b)(2)). Prior to conducting a reevaluation
the parent and the school shall determine whether a reevaluation is needed. They must consider the child’s
educational needs, which may include whether the child is participating in the general education curriculum and being
assessed appropriately. The parent and the school will discuss the advantages and disadvantages of conducting a
reevaluation, as well as what effect a reevaluation might have on the child’s educational program (Federal Register,
August 14, 2006, p. 46640, 46641). Documentation of this agreement must be maintained (See Appendix A, Figure 7-
1, Revaluation Not Needed form.).
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There are circumstances when a reevaluation is not required:
1. before the termination of a child’s eligibility due to graduation with a regular diploma, however, Prior Written
Notice and informed consent are required for the change of placement; or
2. due to exceeding the age of eligibility for FAPE, which would be the end of the school year in which the
student becomes 21 years of age. (K.S.A. 72-986(l)(2); 34 C.F.R. 300-305(e)(2))
3. when the school and parent agree that a reevaluation is not needed.
C. PRIOR WRITTEN NOTICE AND REQUEST FOR CONSENT
Whenever a school proposes to conduct a reevaluation, the school must provide Prior Written Notice to the parents of the
child that describes any evaluation procedures the school proposes to conduct (K.S.A. 72-986(b); K.S.A. 72-988; 34
C.F.R. 300.304(a)). In addition, there are standard components of content the notice must also contain. The purpose of
providing notice to the parents is so they understand what action the public agency is proposing (in this case, to conduct a
reevaluation) and the basis used for determining the action is necessary. The Prior Written Notice must include:
1. A description of the action proposed by the agency.
2. An explanation of why the agency proposes the action.
3. A description of each evaluation procedure, assessment, record, or report the agency used as a basis for
the proposed action.
4. A statement that the parents have protection under the procedural safeguards and how a copy of the
procedural safeguards can be obtained.
5. Sources for parents to contact to obtain assistance in understanding their procedural safeguards.
6. A description of other options considered and the reasons why those options were rejected.
7. A description of other factors that are relevant to the agency’s proposal. (K.S.A. 72-990; 34 C.F.R.
300.503(b))
Additionally, if the notice is to propose to conduct a reevaluation, the notice must describe any evaluation
procedures
that the school proposes to conduct (K.S.A. 72-986(b); 34 C.F.R. 300.304(a)(1)).
The notice must be written in language understandable to the general public and provided in the native language of the
parent or other mode of communication used by the parent, unless it is clearly not feasible to do so. If the native
language or other mode of communication of the parent is not a written language, the LEA must take steps to ensure that
the notice is translated orally or by other means to the parent in his or her native language or other mode of
communication, that the parent understands the content of the notice and that there is written evidence that this has been
done (K.A.R. 91-40-26(a)(b)(c); 34 C.F.R. 300.503(c)).
1.
Preparing the Prior Written Notice
The team must plan to administer the assessments and other evaluation measures as may be needed to produce the
data required to meet the requirements of the continuation of eligibility (K.A.R. 91-40-8(e)(1); 34 CFR 300.305(c)).
Every reevaluation should be approached and designed individually based on the specific concerns of the child to be
evaluated. Thoughtful planning is required to insure that the team will use appropriate tools to collect the data
needed, while eliminating time spent collecting information that is either unnecessary or overly time consuming for no
clear purpose. It would be inappropriate to use the same battery of assessments for all children or to rely on any
single tool to conduct an evaluation.
The first activity the reevaluation team is to conduct is a review of existing data. The reevaluation team needs to
consider all data that is currently available including evaluations and information provided by the parents, current
classroom-based, local, or State assessments, and classroom-based observations; and observations by teachers
and related service providers; and the child’s response to scientifically, research-based interventions, if implemented.
The review of existing data, as part of the evaluation, may be conducted without a meeting and without consent from
the parents (K.A.R. 91-40-8(c)(d); K.A.R. 91-40-27(e); 34 C.F.R. 300.305(b); 34 C.F.R. 300.300(d)(1)).
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The purpose of reviewing existing data is to identify what additional data, if any, are needed to determine:
if the child continues to be a child with an exceptionality and needs special education;
whether the child needs special education and related services;
the educational needs of the child;
the present levels of academic achievement and functional performance (related developmental needs) of
the child; and
whether any additions or modifications to the special education and related services are needed to enable
the child to meet the measurable goals set out in the IEP and to participate, as appropriate, in the general
education curriculum. (K.S.A. 72-986(i)(2); 34 C.F.R. 300.305(a)(2))
After the team has reviewed the existing data, there must be a determination of what data, if any, will be collected
during the evaluation, with the Prior Written Notice completed to reflect that determination.
a. Requirements if No Additional Data is Needed
If the team has determined that no additional data is needed to determine whether the child
continues to be
a child with an exceptionality, and to determine the child’s educational needs, the school must notify the
parents
i.
of that determination and the reasons for it; and
ii. the right of the parents to request an assessment to determine whether the child continues to be a child
with an exceptionality, and to determine the educational needs of the child (K.A.R. 91-40-8(c); 34
C.F.R. 300.305(d)).
The school district is not required to conduct the assessment described in (ii) above unless requested to do
so by the child’s parents. In addition, if the parents request an assessment of their child, the school district
may refuse to do so, but it must provide the parents with Prior Written Notice of the refusal to conduct the
assessment and the reasons for the refusal. The parents may request mediation or due process if they
want the assessment conducted. (See Appendix A, Figure 3-3, No Additional Data Needed form, and
www.kansped.org
.)
b. Requirements if Additional Data Are Needed
If the team has determined that additional data are needed, the team should plan who will collect it and plan
to insure all data will be collected within the evaluation timeline. The procedures to be used to collect the
data should be described on the Prior Written Notice for the reevaluation and provided to the parents for
their consent.
2.
Request for Consent
The school must obtain informed consent from the parent of the child before conducting any reevaluation (K.A.R. 91-
40-27(a)(1); 34 C.F.R. 300.300(c)). In determining that informed consent is obtained, the following must be insured
(K.A.R. 91-40-1(l); 34 C.F.R. 300.9):
a. The parent has been fully informed of all information relevant to the activity for which consent is being
sought, in his or her native language, or other mode of communication.
b. The parent understands and agrees in writing to the carrying out of the activity for which his or her consent
is sought, and the consent describes that activity and lists the records (if any) that will be released and to
whom.
c. The parent understands that the granting of consent is voluntary on the part of the parent and may be
revoked at any time.
d. If a parent revokes consent, that revocation is not retroactive (i.e., it does not negate an action that has
occurred after the consent was given and before the consent was revoked).
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3. Failure to Respond or Refusal to Consent
The school must make reasonable attempts to obtain consent from the parents to conduct the reevaluation.
Reasonable attempts are defined as at least 2 contacts by 2 different methods (phone calls, letters, visits, email, etc.)
and such attempts should be documented, including detailed records of telephone calls made or attempted and the
results, copies of written correspondence sent to the parents and their response if any, and visits made to the parents
home or place of employment, and the response, if any, from the parents (K.A.R. 91-40-17(e)(2); 34 C.F.R.
300.322(d)(1)).
If the school can demonstrate that it has made reasonable efforts (i.e. minimum 2 contacts by 2 different methods)
and parents have failed to respond, informed parental consent need NOT be obtained for the reevaluation.
If the parent refuses consent for the reevaluation the school may, but is not required to, pursue the reevaluation of
the child by utilizing the procedural safeguards, including mediation. The school does not violate its obligation for
child find or to conduct a reevaluation of the child if it declines to pursue the reevaluation (K.A.R. 91-40-27(f)(1)(3); 34
C.F.R. 300.300(c)(1)).
If a parent of a child who is home schooled or voluntarily placed in a private school by the parents does not provide
consent for the reevaluation, or the parent fails to respond, the school may not use mediation or request a due
process hearing (K.A.R. 91-40-27(f)(2); 34 C.F.R. 300.300(d)(4)).
During reevaluation, like initial evaluation, the school is required to inform parents of their right to an independent
educational evaluation, according to 34 C.F.R. 300.502. Chapter 3 includes a full discussion of independent
educational evaluations.
State Statute:
K.S.A. 72-986
(b) An agency shall provide notice to the parents of a child that describes any evaluation procedures such agency proposes to conduct. In conducting the
evaluation, the agency shall:
(1) Use a variety of assessment tools and strategies to gather relevant functional
,
developmental and academic information, including information
provided by the parent, that may assist in determining whether the child is an exceptional child and the content of the child’s individualized
education program, including information related to enabling the child to be involved, and progress, in the general education curriculum or, for
preschool children, to participate in appropriate activities;
(2) not use any single measure or assessment as the sole criterion for determining whether a child is an exceptional child or determining an appropriate
educational program for the child;
(3) use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or
developmental factors; and
(4) in determining whether a child has a specific learning disability, not be required to take into consideration whether the child has a severe
discrepancy between achievement and intellectual ability, and may use a process that determines if the child responds to scientific, research-based
intervention as part of the child’s evaluation.
(h) (1) Each agency shall ensure that a reevaluation of each exceptional child is conducted:
(A) If the agency determines that the educational or related services needs of the child, including academic achievement or functional
performance, warrant a reevaluation; or
(B) if the child’s parent or teacher requests a reevaluation.
(2) An agency shall conduct a reevaluation of a child:
(A) Not more frequently than once a year, unless the parent and the agency agree otherwise; and
(B) at least once every three years, unless the parent and the agency agree that a reevaluation is unnecessary.
(i) As part of an initial evaluation, if appropriate, and as part of any reevaluation under this section, the IEP team and other qualified
professionals, as appropriate, shall:
(1) Review existing evaluation data on the child, including evaluations and information provided by the parents of the child, current
classroom-based assessments and observations, and teacher and related services providers’ observations; and
(2) on the basis of that review, and input from the child’s parents, identify what additional data, if any, are needed to determine: (A)
Whether the child is an exceptional child and the educational needs of the child, or in the case of a reevaluation of a child, whether the
child continues to be an exceptional child and the current educational needs of the child; (B) the
present levels of academic and related needs of the child; (C) whether the child needs special education and related services; or in the
case of a reevaluation of a child, whether the child continues to need special education and related services; and (D) 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.
(i) As part of an initial evaluation, if appropriate, and as part of any reevaluation under this section, the IEP team and other qualified
professionals, as appropriate, shall:
(1) Review existing evaluation data on the child, including evaluations and information provided by the parents of the child, current
classroom-based assessments and observations, and teacher and related services providers’
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observations; and
(2) on the basis of that review, and input from the child’s parents, identify what additional data, if any, are needed to determine: (A)
Whether the child is an exceptional child and the educational needs of the child, or in the case of a reevaluation of a child, whether the
child continues to be an exceptional child and the current educational needs of the child; (B) the present levels of academic and related
needs of the child; (C) whether the child needs special education and related services; or in the case of a reevaluation of a child,
whether the child continues to need special education and related services; and (D) 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.
(l) (1) Except as provided in paragraph (2), an agency shall reevaluate a child in accordance with this section before determining that the child
is no longer an exceptional child.
(2) A reevaluation of a child shall not be required before termination of a child’s eligibility for services under this act due to graduation
from secondary school with a regular diploma, or due to exceeding the age for eligibility for services under this act.
72-988. Parental rights.
(a) The rights of parents of exceptional children shall include, but not be limited to, the rights specified in this section.
(b) The parents of exceptional children shall have the right to:
(2) written prior notice in accordance with K.S.A. 72-990, and amendments thereto, whenever an agency:
(A) Proposes to initiate or change; or
(B) refuses to initiate or change, the identification, evaluation, or educational placement of the child or the provision of a free appropriate
public education to the child;
72-990
.
Notice of parental rights; contents.
The notice required by subsection (b)(2) of K.S.A. 72-988, and amendments thereto, shall include:
(a) A description of the action proposed or refused by the agency;
(b) an explanation of why the agency proposes or refuses to take the action;
(c) a description of other options that the agency or IEP team considered and the reasons those options were rejected;
(d) a description of each evaluation procedure, assessment, record, or report the agency used as a basis for the proposed or refused action;
(e) a description of any other factors that are relevant to the agency’s proposal or refusal;
(f) a statement that the parents have protection under the procedural safeguards of this act and, if the notice is not an initial referral for evaluation, the
means by which a copy of the procedural safeguards can be obtained; and
(g) sources for parents to contact to obtain assistance in understanding the provisions of the federal law and this act.
State Regulation:
K.A.R. 91-40-1(l)
(l) "Consent" means all of the following:
(1) A parent has been fully informed of all information relevant to the activity for which consent is sought, in the parent's native
language or other mode of communication.
(2) A parent understands and agrees in writing to the carrying out of the activity for which consent is sought, and the consent describes
that activity and lists the records, if any, that will be released and to whom.
(3) A parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at any time, but if the
parent revokes consent, that the revocation is not retroactive and does not negate an action that has occurred after the consent was given
and before the consent was revoked.
K.A.R. 91-40-17(e)(2)
(e)(1) An agency may conduct an IEP team meeting without parental participation if the agency, despite repeated attempts, has been unable to
contact the parent or to convince the parent to participate.
(2) If an agency conducts an IEP team meeting without parental participation, the agency shall have a record of the attempts that the
agency made to contact the parent to provide notice of the meeting and to secure the parent's participation. The record shall include at
least two of the following:
(A) Detailed records of telephone calls made or attempted, including the date, time, and person making the calls and the results of the
calls;
(B) detailed records of visits made to the parent's home or homes, including the date, time, and person making the visit and the results
of the visit;
(C) copies of correspondence sent to the parent and any responses received; and
(D) detailed records of any other method attempted to contact the parent and the results of that attempt.
K.A.R. 91-40-26(a)(b)(c)
(a) In providing any notice to the parents of an exceptional child in accordance with K.S.A. 72-990 and amendments thereto,
regarding action
proposed or refused by an agency, an the agency shall ensure that the notice includes the following descriptions:
(1) a description of other options the agency considered and the reasons why those options were rejected; and
(2) a description of other factors that are relevant to the agency's proposal or refusal.
(b) The notice shall be is written in a language understandable to the general public and is provided in the native language of the parent or
other mode of communication used by the parent, unless it is clearly not feasible to do so.
(c)
If the native language or other mode of communication of a parent is not a written language, the agency shall take steps to ensure all of the
following:
(1) The notice is translated orally or by other means to the parent in the parent’s native language or other mode of communication.
(2) The parent understands the content of the notice.
(3) There is written evidence that the requirements of paragraphs (1) and (2) of this subsection have been met.
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K.A.R. 91-40-27(a)(1), (f), (g) Add New
(a) Except as otherwise provided in this regulation, an 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;
(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.
(e) An agency shall not be required to obtain parental consent before taking either of the following actions:
(1) Reviewing existing data as part of an evaluation, reevaluation, or functional behavioral assessment; or
(2) administering a test or other evaluation that is administered to all children, unless before administration of that test or evaluation,
consent is required of the parents of all children.
(f) (1) If the parent of an exceptional child who is enrolled or is seeking to enroll in a public school does not provide consent for an initial
evaluation or any reevaluation, or for a proposed material change in services or a substantial change in the placement of the parent's child, an
agency may, but is not required to, pursue the evaluation or proposed change by initiating due process or mediation procedures.
(2) If the parent of an exceptional child who is being home schooled or has been placed in a private school by the parent does not
provide consent for an initial evaluation or a reevaluation, or fails to respond to a request to provide consent, an agency may not pursue
the evaluation or reevaluation by initiating mediation or due process procedures.
(3) An agency shall not be in violation of its obligations for identification, evaluation or reevalutation if the agency declines to pursue
an evaluation or reevaluation, because a parent has failed to provide consent for the proposed action.
(4) Each agency shall document its attempts to obtain parental consent for action proposed under this regulation.
(g) An agency shall not be required to obtain parental consent for a reevaluation or a proposed change in services or placement of the child if
the agency has made attempts, as described in K.A.R. 91-40-17(e)(2), to obtain consent but the parents have failed to respond.
(h) An agency shall not use a parent's refusal to consent to an activity or service to deny the parent or child other activities or services offered
by the agency.
D. MEMBERS OF THE REEVALUATION TEAM
The membership of the team that conducts the reevaluation and determines continued eligibility is the same as the
IEP Team with the addition of other qualified professionals if a child is suspected of having a specific learning
disability, as appropriate. The additional professionals that would participate are based on the identified concerns to
be addressed in the reevaluation process. The actual team members on each reevaluation team may differ; however,
there are specific members and skills that must be represented on the team. The make up of this team would include:
•
The parents of the child.
•
Not less than one regular education teacher of the child (if the child is, or may be, participating in the regular
education environment).
o
If the child does not have a regular teacher, a regular classroom teacher qualified to teach a child of his or
her age; or if the child is less than school age, an individual qualified to teach a child of his or her age;
•
Not less than one special education teacher of the child, or where appropriate, not less than one special
education service provider of the child.
•
A representative of the local education agency who:
o
Is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique
needs of child with disabilities,
o
Is knowledgeable about the general education curriculum, and
o
Is knowledgeable about the availability of resources of the public agency;
•
An individual who can interpret the instructional implications of reevaluation results.
•
At least one person qualified to conduct individual diagnostic examinations of children.
•
At the discretion of the parent or agency, other individuals who have knowledge or special expertise
regarding the child, including related services personnel as appropriate. (K.S.A. 72-962(u); K.A.R. 91-40-
11(a); 34 C.F.R. 300.321; 34 C.F.R. 300.308)
E. CONDUCTING THE REEVALUATION
The reevaluation must include a variety of assessment tools and strategies to gather relevant functional,
developmental and academic information, including information provided by the parent, that may assist in
determining whether the child continues to be an exceptional child, the educational needs of the child, and the
content of the child’s IEP, including information related to enabling the child to be involved, and progress, in the
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general education curriculum or, for preschool children, to participate in appropriate activities (K.S.A. 72-986(b)(1)).
In addition, the procedures must also lead to the determination of the present levels of academic achievement and
functional performance of the child. The public agency must administer such assessments and other evaluation
measures as may be needed to produce the data to determine:
1. if the child continues to be a child with an exceptionality;
2. the educational needs of the child;
3. the present levels of academic achievement and functional performance (related developmental needs) of
the child;
4. whether the child continues to need special education and related services; and
5. whether any additions or modifications to the special education and related services are needed to enable
the child to meet the measurable goals set out in the IEP and to participate, as appropriate, in the general
education curriculum. (K.S.A. 72-986(i)(2); 34 C.F.R. 300.305(a)(2))
As stated previously, the data collected is critical not only for the purpose of determining whether a child continues to
be eligible for special education services, but also to assist in the development of present levels of academic
achievement and functional performance. Regulations clearly state that the reevaluation must result in determining
the content of the child’s IEP (if still eligible) including information related to enabling the child to be involved in and
progress in the general curriculum (or for a preschool child, to participate in appropriate activities) (K.S.A. 72-
986(b)(1); 34 C.F.R. 300.304(b)(ii)). However, the reevaluation should also assist in the development of an
instructional plan for the child if the child is not found to be eligible.
Every reevaluation should be approached and designed individually based on the specific concerns of the child being
evaluated. Thoughtful planning is required to insure that the team will use appropriate tools to collect the data
needed, while eliminating time spent collecting information that is unnecessary or for no clear purpose. It would be
inappropriate to use the same battery of assessments for all children or to rely on any single tool to conduct a
reevaluation.
1. Procedures for Conducting the Reevaluation
The school shall ensure that a reevaluation meets all of the same requirements for an initial evaluation as described
in Section E, of Chapter 3, in this Handbook. The reevaluation team members must utilize a variety of assessment
tools and strategies to gather relevant functional, developmental, and academic information about the child, including
information from the parents, and information related to enabling the child to be involved in and progress in the
general curriculum (or for a preschool child, to participate in appropriate activities). The tools and strategies must
yield relevant information that directly assists in determining the educational needs of the child.
Collecting relevant functional, developmental and academic information related to enabling the child to be involved in,
and progress in, the general curriculum (or for a preschool child, to participate in appropriate activities) requires that
data be collected not only about the child, but about the curriculum, instruction, and environment as well. Every
evaluation should be approached and designed individually based on the specific concerns for the child and the
selection of assessment tools based on the information needed to answer the eligibility questions. It would be
inappropriate to use the exact same battery of assessments for all children or to rely on any single tool to conduct an
evaluation. (K.S.A. 72-986(b)(c); K.A.R. 91-40-9)
Data should be collected from the five sources referred to in Kansas as GRIOT. GRIOT represents five sources of
data that teams need to collect and use as appropriate. The following is a discussion of each of the five sources of
data:
G
– General Education Curriculum Progress: During the reevaluation, the team should thoroughly examine the
child’s progress in the general education curriculum. The team needs to understand how the child is progressing
in general education curriculum across settings with the available supports. To do this they must understand the
outcomes of the general education curriculum and how the skills represented in those outcomes relate to the
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needs of each child. Are the skills needed for this child’s progress different than the skills that general education
children need? Is the instruction required for the child to learn those skills different? The general education
curriculum outcomes and the supports available through general education are unique to each school. Gaining
an understanding of what support is available and the level of support needed by the child is one of the most
important parts of the reevaluation.
R
– Record Review: The evaluation team should also include as part of the reevaluation a review of records. These
records would include such things as information provided by the parents, current classroom-based
assessments, State assessments, information from previous services providers, screenings, previous
evaluations, reports from other agencies, portfolios, discipline records, cumulative file, and other records.
I
– Interview: It is important to understand the perceptions of significant adults in the child’s life and of the child
himself. Parents, teachers, and the child can all typically provide insight into areas of strengths and needs.
Interviews can also provide information about significant historical events in the child’s life as well as about his
performance in the classroom and other settings.
O
– Observation: A district must ensure the child is observed in the child’s learning environment (including the
regular education classroom setting) to document the child’s academic performance and behavior in the areas of
difficulty (K.A.R. 91-40-11(c); 34 C.F.R. 300.310). In the case of a child of less than school age or out of school,
a group member must observe the child in an environment appropriate for a child of that age. If the child is
already in an educational setting the observation should be done in that setting opposed to bringing them into a
different setting just for observation. These observations could include structured observations, rating scales,
ecological instruments (e.g., EBASS, TIES-II), behavioral interventions, functional analysis of behavior and
instruction, anecdotal, and other observations (conducted by parents, teachers, related services personnel, and
others). The purpose of the observation is to help the evaluation team understand the extent to which the child’s
skills are impacting their ability to participate and progress in a variety of settings. Observations allow you to see
first hand how a child is functioning in naturally occurring settings. Observation data can also allow you to
compare the child’s behavior to that of peers in the same setting. Observation data helps us to understand not
only the child’s current functional performance but also the level of independence demonstrated which can help
determine necessary supports.
T
– Test: A wide range of tests or assessments may be useful in determining an individual child’s skills, abilities,
interests, and aptitudes. Typically, a test is regarded as an individual measure of a specific skill or ability, while
assessment is regarded as broader way of collecting information that may include tests and other approaches to
data collection. Standardized norm-referenced tests are helpful if the information being sought is to determine
how a child compares to a national group of children of the same age or grade. Criterion-reference tests are
helpful in determining if the child has mastered skills expected of a certain age or grade level. Tests typically
provide specific information but are never adequate as a single source of data to determine eligibility for special
education. Because tests require a controlled testing environment, the result is that children are removed from
their learning environments to participate. This is a very intrusive way of gathering data and the value of the
data obtained should always be weighed carefully against the cost of missed class time. For this reason, tests
should be thoughtfully selected and be used for specific purposes when data cannot be obtained through other
sources. Some test information may already have been collected, especially if the child attends a school that
uses school-wide benchmark assessment. However, additional information may need to be collected during the
reevaluation. This might include curriculum-based assessments (e.g., CBA, CBM, or CBE), performance-based
assessments (i.e., rubric scoring), or other skill measures such as individual reading inventories. The testing
that needs to be done will vary depending on what information already has been collected and the needs of the
individual child. Diagnostic testing might include measures of reading, math, written language, or other
academic skills, or tests of motor functioning, speech/language skills, adaptive behavior, self-concept, or any
domain of concern. As with all types of data collection, the information from testing needs to be useful for both
diagnostic and programmatic decision-making.
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GRIOT
offers a framework in which to organize and structure data collection. It is not that any data source or
assessment procedure is inherently good or bad. All procedures and tools are appropriate as long as they are
selected thoughtfully and for the appropriate purposes. A team will not necessarily use all data sources every time
an evaluation is conducted, but it does mean that thoughtful planning will need to be given for each child to ensure
that the team is collecting the appropriate data using the appropriate tools to ensure the correct information to make
the continued eligibility determination.
The instruments utilized in the reevaluation must meet all of the requirements as described in Section E. of Chapter 3
in this Handbook. Federal and State laws and regulations specify requirements for evaluation and reevaluation
(K.A.R. 91-40-8(e)(f)(g); 34 C.F.R. 300.304)
State Regulation:
K.A.R. 91-40-8(c)(d)(e) (f)(g)
(c) As a part of an initial evaluation, if appropriate, and as a part of any reevaluation, each agency shall ensure that members of an appropriate
IEP team for the child and other qualified professionals, as appropriate, comply with the following requirements:
(1)
The evaluation team shall review existing evaluation data on the child, including the following information:
(A) Evaluations and information provided by the parents of the child;
(B) current classroom-based, local, and state assessments and classroom-based observations; and
(C) observations by teachers and related services providers.
(2) On the basis of that review and input from the child's parents, the evaluation team shall identify what additional data, if any, is
needed to determine the following matters:
(A) Whether the child has a particular category of exceptionality or, in the case of a reevaluation of a child, whether the child
continues to have such an exceptionality;
(B) what the present levels of academic performance and educational and related developmental needs of the child are;
(C) whether the child needs special education and related services, or in the case of a reevaluation of a child, whether the child
continues to need special education and related services; and
(D) whether, in the case of a reevaluation of the child, any additions or modifications to the special education and related services
currently being provided to the child 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 curriculum.
(d) The team described in subsection (e) of this regulation may conduct its review without a meeting.
(e) (1)
If the team described in subsection (c) of this regulation determines that additional data is required to make any of the
determinations specified in paragraph (2) of subsection (c), the agency, after giving proper written notice to the parent and obtaining parental
consent, shall administer those tests and evaluations that are appropriate to produce the needed data.
(2)
If the team described in subsection (c) of this regulation determines that no additional data is needed to make any of the
determinations specified in paragraph (2) of subsection (c), the agency shall give written notice to the child's parent of the following
information:
(A) The determination that no additional data is needed and the reasons for this determination; and
(B) the right of the parent to request an assessment.
(3)
The agency shall not be required to conduct any additional assessments unless requested to do so by the child's parent.
(f) Unless an agency has obtained written parental consent to an extension of time and except as otherwise provided in subsection (g), the
agency shall complete the following activities within 60 school days of the date the agency receives written parental consent for evaluation of
a child:
(1) Conduct the evaluation of the child;
(2) conduct a meeting to determine whether the child is an exceptional child and, if so, to develop an IEP for the child. The agency
shall give notice of this meeting to the parent as required by K.A.R. 91-40-17(a); and
(3) implement the child’s IEP in accordance with K.A.R. 91-40-16.
(g) An agency shall not be subject to the time frame prescribed in subsection (f) if either of the following conditions is met:
(1) The parent of the child who is to be evaluated repeatedly fails or refuses to produce the child for the evaluation.
(2) The child enrolls in a different school before the evaluation is completed, and the parent and new school agree to a specific date
by which the evaluation will be completed.
(h)
In complying with subsection (f), each agency shall ensure that an IEP is developed for each exceptional child within 30 days
from the date on which the child is determined to need special education and related services.
K.A.R. 91-40-9
.
Evaluation procedures
. (a) If assessment instruments are used as a part of the evaluation or reevaluation of an exceptional
child, the agency shall ensure that the following requirements are met:
(1) The assessment instruments or materials shall meet the following criteria:
(A) Be selected and administered so as not to be racially or culturally discriminatory; and
(B) be provided and administered in the child’s native language or other mode of communication and in the form most likely to yield
accurate information on what the child knows and can do academically, developmentally, and functionally, unless this is clearly not feasible.
(2) Materials and procedures used to assess a child with limited English proficiency shall be selected and administered to ensure t
hat they measure the extent to which the child has an exceptionality and needs special education, rather than measuring the child’s
English language skills.
(3) A variety of assessment tools and strategies shall be used to gather relevant functional and developmental information about the
child, including information provided by the parent, and information related to enabling the child to be involved and progress in the general
curriculum or, for a preschool child, to participate in appropriate activities that could assist in determining whether the child is an exceptional
child and what the content of the child’s IEP should be.
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(4) Any standardized tests that are given to a child shall meet the following criteria:
(A) Have been validated for the specific purpose for which they are used; and
(B) be administered by trained and knowledgeable personnel in accordance with any instructions provided by the producer of the
assessment.
(5) If an assessment is not conducted under standard conditions, a description of the extent to which the assessment varied from standard
conditions shall be included in the evaluation report.
(6) Assessments and other evaluation materials shall include those that are tailored to assess specific areas of educational need and not
merely those that are designed to provide a single general intelligence quotient.
(7) Assessments shall be selected and administered to ensure that if an assessment is administered to a child with impaired sensory,
manual, or speaking skills, the
test results accurately reflect the child’s aptitude or achievement level or whatever other factors the assessment
purports to measure, rather than reflecting the child’s impaired sensory, manual, or speaking skills, unless those skills are the factors that the
assessment purports to measure.
(8) A single procedure shall not be used as the sole criterion for determining whether a child is an exceptional child and for
determining an appropriate educational program for the child.
(9) Each agency shall use assessment tools and strategies that provide relevant information that directly assists persons in
determining the educational needs of the child.
(b) (1) Each child shall be assessed in all areas related to a suspected exceptionality, including, if appropriate, the following:
(A) Health;
(B) vision;
(C) hearing;
(D) social and emotional status;
(E) general intelligence;
(F) academic performance;
(G) communicative status; and
(H) motor abilities.
(2) Each evaluation shall be sufficiently comprehensive to identify all of the child’s special education and related services needs,
whether or not commonly linked to the disability category in which the child has been classified.
(c) If a child is suspected of having a specific learning disability, the agency also shall follow the procedures prescribed in K.A.R. 91-40-11 in
conducting the evaluation of the child.
K.A.R. 91-40-11(b)(c)
(b)(1) A group evaluating a child for a specific learning disability may determine that the child has that disability only if the following
conditions are met:
(A) The child does not achieve adequately for the child's age or meet state-approved grade-level standards, if any, in one or more
of the following areas, when the child is provided with learning experiences and instruction appropriate for the child's age and grade
level:
(i) Oral expression;
(ii) listening comprehension;
(iii) written expression;
(iv) basic reading skill;
(v) reading fluency skills;
(vi) reading comprehension;
(vii) mathematics calculation; and
(viii) mathematics problem solving; and
(B)(i) The child does not make sufficient progress to meet age or state-approved grade-level standards in one or more of the areas
identified in paragraph (b)(1)(A) when using a process based on the child's response to scientific, research-based intervention; or
(ii) the child exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, grade-level
standards, or intellectual development that is determined by the group conducting the evaluation to be relevant to the
identification of a specific learning disability, using appropriate assessments.
(2) A child shall not be determined to be a child with a specific learning disability unless the group elevating the child
determines that its findings under paragraphs (b)(1))(A) and (B) are not primarily the result of any of the following:
(i) A visual, hearing, or motor disability;
(ii) mental retardation;
(iii) emotional disturbance;
(iv) cultural factors;
(v) environmental or economic disadvantage; or
(vi) limited English proficiency.
(c) (1) The group evaluating the child shall ensure that the child is observed in the child's learning environment, including
the regular classroom setting, to document the child's academic performance and behavior in the areas of difficulty.
(2) In conducting the observation, the group may employ either of the following procedures:
(A) Use information from an observation in routine classroom instruction and monitoring of the child's performance that
was done before the child was referred for an evaluation; or
(B) have at least one member of the group conduct an observation of the child's academic performance in the regular
classroom after the child has been referred for an evaluation and parental consent is obtained.
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F. DETERMINING CONTINUED ELIGIBILITY
Upon completion of the reevaluation, the team should compile all data (that which previously existed and/or was
collected as part of the reevaluation) into a format that will be useful when the team convenes to make the continued
eligibility determination. It is important that all the information be in an understandable format that allows the team,
including the parent, to understand the child’s strengths and weaknesses and how the child is progressing in the
general curriculum in addition to information about the child’s exceptionality and needs for special education.
At the time the reevaluation is completed, the team should schedule a time to convene in order to make the
determination of continued eligibility. Parents are to be provided an opportunity to participate in the eligibility
meeting, which can be conducted at the same time as the IEP team meeting. The school must provide a notice of
the meeting at least 10 calendar days prior to the meeting date that includes the requirements in K.A.R. 91-40-
17(b)(1).
When the meeting is convened, the reevaluation team, including the parents, review the results of the reevaluation to
determine:
if the child continues to be a child with an exceptionality;
the educational needs of the child;
the present levels of academic achievement andthe functional performance (related developmental needs)
of the child;
whether the child continues to need special education and related services; and
whether any additions of 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.
As is the case in all reevaluations, when making the determination of whether the child continues
to be a child with an
exceptionality and whether the child continues
to need special education and related services, teams must take into
account that the child has made progress since the time he/she was initially evaluated and determined to be eligible
for services. The fact that the child’s performance gap may be less than at the time of the initial evaluation would not
necessarily mean that the child is no longer a child with an exceptionality and no longer in need of special education
services.
The data collected at the time of the reevaluation should assist the team in decision making. Teams should
thoroughly discuss the child’s present levels of educational performance and consider the child’s rate of progress.
Teams should also consider what level of support is needed in order for the child to access and progress in the
general curriculum and whether that level of support would continue to require specially designed instruction. If at
the time of reevaluation, a student needs only general accommodations, then the student is no longer eligible for
special education, but should be referred for consideration of eligibility for a 504 plan. These careful considerations
should drive the determination of continued eligibility.
Documenting Continued Eligibility
After completion of appropriate reevaluation procedures, the team of qualified professionals and the parent of the
child shall prepare a written reevaluation report. A copy of the reevaluation report and documentation of whether or
not the child continues to be a child with an exceptionality must be given to the parents. See Section F, of Chapter 3,
in this Handbook for a complete discussion of the requirements for determination of continuing eligibility and a
description of the reevaluation and continued eligibility report. (See Appendix A, Figure 3-5, Evaluation/Eligibility
Report Checklist.).
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G.
REEVALUATION FOR A CHILD IDENTIFIED AS DEVELOPMENTALLY DELAYED
Special considerations impacting reevaluation are needed for children who have been determined eligible for special
education services under the category of developmental delay (DD). These considerations must be made in
accordance with regulations regarding a child’s continuing eligibility for services.
State Statute and regulations (K.S.A. 72-962(z)(2); K.A.R. 91-40-1(k)) allow schools to identify children ages three
through nine as a child with a developmental delay(DD). Federal regulations clarify that the use of the category of
developmental delay is optional for the school and may be used for children ages three through nine or any subset of
that age range (i.e., 3-5, 6-9. etc.) (34 C.F.R. 300.111(b)).
If a child ages 3-9 was determined eligible as a child with DD, a reevaluation must be conducted before the child
turns age 10 to determine whether the child continues to be a child with an exceptionality as defined by any of the
categorical areas under the law and whether the child continues to have a need for special education and related
services. The reevaluation to determine continued eligibility as a child with an exceptionality may take place anytime
prior to the child’s 10
th
birthday, or if the child’s 10
th
birthday is after December 1, the reevaluation must be completed
by the end of the school year in which the child turns 10 years of age.
State Regulations:
K.A.R. 91-40-1
(k)
"Child with a disability
" means the following:
(1) A child evaluated as having mental retardation, a hearing impairment including deafness, a speech or language impairment, a visual
impairment including blindness, emotional disturbance, an orthopedic impairment, autism, traumatic brain injury, any other health
impairment, a specific learning disability, deaf-blindness, or multiple disabilities and who, by reason thereof, need special education
and related services; and
(2) for children from ages three through nine, a child who is experiencing developmental delays and, by reason thereof, needs special
education and related services.
(q)
"Developmental delay"
means such a deviation from average development in one or more of the following developmental areas that
special education and related services are required: (A) Physical; (B) cognitive; (C) adaptive behavior; (D) communication; or (E) social or
emotional development. The deviation from average development shall be documented and measured by appropriate diagnostic instruments
and procedures.
K.A.R. 91-40-2. FAPE
(c)(1) Each agency shall make FAPE available to any child with a disability even though the child is advancing from grade to grade.
(2) The determination of whether a child who is advancing from grade to grade is a child with a disability shall be made on an individual
basis in accordance with child find activities and evaluation procedures required by this article.
K.A.R. 91-40-10(h)
(h)With regard to children from ages six through nine who are determined to need special education and related services, an agency may elect
to use the term
"developmental delay"
or one or more of the categories of disabilities described in the definition of the term "child with a
disability."
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QUESTIONS AND ANSWERS ABOUT REEVALUATION
1. What does the school do if parents refuse consent for a reevaluation?
The school must try to obtain consent from the parents. The school may, but is not required to seek to mediate
the dispute or file for a due process hearing to pursue the reevaluation. The school would not violate the
requirement to conduct a reevaluation if it declines to pursue the reevaluation when the parent refuses to provide
consent. The school would continue to serve the child according to the IEP.
2. What does the school do to document reasonable measures were taken to obtain
consent, if parents do not respond to the request to reevaluate?
If the parent does not respond the school must keep detailed records of its attempts to obtain parental consent
including written correspondence sent to the parents, phone calls made or attempted and visits made to the
parent’s home or place of employment, and the response, if any, from the parent. At a minimum schools must
make two attempts, using at least two different methods. If the school is not successful after repeated
reasonable measures, then the school may continue with the reevaluation procedures. (K.A.R. 91-40-
17(e)(2)(A); 34 C.F.R. 300.303(d)(5); 34 C.F.R. 300.300(d))
3. What does the school do if parents want a specific test conducted, but the rest of the
reevaluation team believes no additional data are needed? Must the school conduct
the test?
The school would have the option of conducting the test, or providing Prior Written Notice to the parents of
refusal to test and the reason they do not think the testing is necessary. If the parents do not agree, they may
request mediation or due process.
4. If no additional data are needed, does the reevaluation team need to write a report
just to determine continued eligibility and need?
Yes. Upon the completion of the reevaluation (which may include only existing data) and determination of
continued eligibility, the team develops a reevaluation and eligibility report as described in Chapter 3. The report
includes what data were examined and their reasons for determining continued eligibility for special education
and related services. The parents are to receive a copy of this report.
6. May staff discuss information related to a child’s instruction without the parents?
Yes, Kansas regulations clarify that, "a meeting does not include informal or unscheduled conversations
involving public agency personnel and conversations on issues such as teaching methodology, lesson plans, or
coordination of service provision if those issues are not addressed in the child's IEP. A meeting also does not
include preparatory activities that public agency personnel engage in to develop a proposal or response to a
parent proposal that will be discussed at a later meeting." (K.A.R. 91-40-25(e)).
7. Once a child has been exited from special education services, must you complete an
initial evaluation upon a referral to determine need for special education?
Once the child has been identified as a child with an exceptionality, even though s/he may have been exited, any
subsequent evaluation would be a "reevaluation." The reevaluation must include all the same requirements for
an initial evaluation and a review of existing data. If there is enough current data available the team may
determine there does not need to be any further assessments conducted.
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8. When a student with an exceptionality is graduating and exiting from special
education services, must the school conduct a reevaluation to determine post-school
program eligibility?
Schools are not required to conduct a reevaluation for a child to meet the entrance or eligibility requirements of a
post-school institution or agency because to do so would impose a significant cost on the school that is not
required by the law (Federal Register, August 14, 2006, p. 46644).
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CHAPTER 8
DISCONTINUING SPECIAL EDUCATION SERVICES
INTRODUCTION
There are times when a child’s eligibility for special education and related services ends or when the parent or
student chooses to end the provision of special education services. This chapter discusses several instances in
which students currently receiving special education services “discontinue” or exit from their special education
program. Such circumstances include the following:
A. No Longer Eligible for Services
B. Graduation
C. Services to Age 21
D. Summary of Performance
E. Revocation of Consent for Special Education Services
F. Student Drops Out of School
G. Prior Written Notice and Request for Consent
A. NO LONGER ELIGIBLE FOR SERVICES
When a parent or school personnel suspect that a child is no longer eligible for special education and related
services, a reevaluation must be conducted to determine if the child is no longer a child with an exceptionality (K.S.A.
72-986(l)(1)). As part of the reevaluation, the IEP team will review existing data and determine whether they need to
conduct any additional assessments (See Chapter 7, Reevaluation.).
If it is determined by the IEP team through a reevaluation that the child is no longer a child with an exceptionality (no
longer has a disability or is gifted and needs special education and related services), the district will provide the
parents with Prior Written Notice of this decision and obtain parent consent before discontinuing services (See
Appendix A, Figure 1-6, Prior Written Notice, and
www.kansped.org .). Typically, if the IEP Team determines that a
child is no longer eligible, the reason is that the child no longer has a need for special education and related services.
For example, a child who was identified with speech and language delays as a young child has benefited from
speech/language services, met the exit criteria determined by the IEP Team, and no longer needs such services.
Services may be discontinued, with parent consent, if the IEP team determines that the data support that the child no
longer has a need for special education services.
B. GRADUATION
All students receiving special education services will receive a regular high school diploma at the completion of their
secondary program if they meet graduation requirements of the state and school district, or as specified on their IEP.
A regular high school diploma does not include an alternative diploma that is not fully aligned with the State’s
academic standards, such as a certificate or GED (Federal Register, August 14, 2006, p. 46580). If a modified or
differentiated diploma or certificate is used for students receiving special education services; however, such diplomas
or certificates do not end eligibility for special education services.
When the student enters high school, progress toward graduation must be monitored annually and recorded on an
official transcript of credits. If the student has completed the required courses for graduation, but the IEP team
determines the student still needs additional special education and related services, graduation would be delayed
and the student can continue to receive the needed special education services on the IEP through the school year in
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Kansas Special Education Process Handbook
which the student turns 21. Some students may require services until age 21 to meet IEP goals. The district’s
obligation to provide special education services ends (a) when the student meets graduation requirements and
receives a regular high school diploma, (b) at the end of the school year in which the child reaches age 21, or (c) an
evaluation shows that the child is no longer eligible for special education services(K.A.R. 91-40-2(f)).
Students with exceptionalities who meet graduation criteria must be afforded the same opportunity to participate in
graduation ceremonies as students without exceptionalities, even if the IEP team determines that services will
continue after the student has met all of the required credits (but an official diploma has not been awarded). A
student may require services until age 21 to meet IEP goals, or because he or she has not obtained all of the
required credits for graduation. In either case, however the student may be allowed to participate in graduation
ceremonies with his/her classmates. Schools may have a policy regarding participation in graduation ceremonies;
however it must apply equally to all students in the district, not just for students with exceptionalities.
No reevaluation is required prior to exiting a student due to graduation (K.S.A. 72-986(l)(2); 34 C.F.R. 300.305(e)(2)).
However, before the student completes the last semester of high school in which she/he is expected to graduate, the
district must provide the student (if over age 18) and the parents with Prior Written Notice of the discontinuation of
services at the end of the school year
.
The Prior Written Notice will clearly state that the student will no longer be
entitled to receive special education services from the district after graduation. Parental consent is not required when
a child graduates with a regular diploma (K.A.R. 91-40-27(a)(3); 34 C.F.R. 300.102(a)(3)(iii)).
Figure 8-1 in Appendix A is a letter from the Federal Office of Special Education Programs (OSEP) about criteria for
grading, graduation, and diplomas for students with disabilities. This OSEP letter (often referred to as the "Runkel
letter") provides additional guidance.
State Statute:
K.S.A. 72-986(l)(2)
(2) A reevaluation of a child shall not be required before termination of a child’s eligibility for services under this act due to graduation from
secondary school with a regular diploma, or due to exceeding the age for eligibility for services under this act.
State Regulation:
K.A.R. 91-40-2(f)
(1) An agency shall not be required to provide FAPE to any exceptional child who has graduated from high school with a regular high
school diploma.
(2) Each exceptional child shall be eligible for graduation from high school upon successful completion of state and local board
requirements and shall receive the same graduation recognition and diploma that a nonexceptional child receives.
(3) The IEP of an exceptional child may designate goals other than high school graduation.
(4) When an exceptional child enters high school, progress toward graduation shall be monitored annually and recorded on an official
transcript of credits.
(5) As used in this subsection, the term “regular high school diploma” means the same diploma as is awarded to nonexceptional students
and shall not include certificates of completion or other certificates, or a general educational development credential (GED).
C. SERVICES TO AGE 21
The district must make FAPE available to any student who has not graduated with a regular high school diploma until
the end of the school year in which the student turns 21 (the school year ends on June 30.). The IEP team may
determine that the student needs extended school year services, which would be available through June 30 of the
school year in which the student turns 21. The school must provide the student age 18 and over, and the parents
with Prior Written Notice that the services will be discontinued at the end of the school year, however, parental
consent is not required. A reevaluation is also not required when a student ages out of eligibility for services upon
turning age 21 (K.S.A. 72-986(l)(2); (K.A.R. 91-40-27(a)(3); 34 C.F.R. 300.305(e)(2).
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Kansas Special Education Process Handbook
State Statute:
K.S.A. 72-986(l)
(l) (1) Except as provided in paragraph (2), an agency shall reevaluate a child in accordance with this section before determining that the child
is no longer an exceptional child.
(2) A reevaluation of a child shall not be required before termination of a child’s eligibility for services under this act due to graduation from
secondary school with a regular diploma, or due to exceeding the age for eligibility for services under this act.
State Regulation:
K.A.R. 91-40-10(g)
(g)(2) An agency shall not be required to conduct a reevaluation of a child with an exceptionality before terminating special education or
related services to the child if the reason for termination of services is due to either of the following:
(A) The child has graduated from high school with a regular high school diploma.
(B) The child has reached the age of 21 years.
D. SUMMARY OF PERFORMANCE
A Summary of Performance (SOP) is required under the reauthorization of the Individuals with Disabilities Education
Act of 2004 for a child whose eligibility under special education terminates due to graduation with a regular diploma,
or due to exceeding the age of eligibility. The local education agency must provide the child with a summary of the
child’s academic achievement and functional performance, which must include recommendations on how to assist
the child in meeting the child’s postsecondary goals (K.S.A. 72-986(m); 34 C.F.R. 300.305(e)(3). This requirement
applies only to children with disabilities, therefore, an SOP does not need to be completed for students identified as
gifted.
The purpose of the SOP is to transfer critical information that leads to the student’s successful participation in
postsecondary settings. It includes a summary of the achievements of the student with current academic, personal
and career/vocational levels of performance. Information may be included as part of the summary based on
assessment findings and team input. Assessment data and accommodations included in the summary should be
written in functional terms easily understood by the student. Any supporting documents are to be appropriately
referenced and included with the summary. Signatures by the student and IEP team members are encouraged as
verification that the contents of the summary have been explained, but are not required.
The SOP must, at a minimum, address the following:
•
Academic achievement: Information on reading, math, and language grade levels, standardized scores, or
strengths.
•
Functional performance: Information on learning styles, social skills, independent living skills, self-
determination, and career/vocational skills.
•
Recommendations: Team suggestions for accommodations, assistive services, compensatory strategies for
post-secondary education, employment, independent living, and community participation.
The Summary of Performance is intended to assist the student in transition from high school to higher education,
training and/or employment. This information is helpful under Section 504 of the Rehabilitation Act and the
Americans with Disabilities Act (ADA) in establishing a student’s eligibility for reasonable accommodations and
supports in postsecondary settings. It is also useful for the Vocational Rehabilitation Comprehensive Assessment
process. However, recommendations in a student’s SOP do not assure that an individual who qualified for special
education in high school will automatically qualify for accommodations in a postsecondary education or employment
setting. Post secondary settings will continue to make ADA and Section 504 eligibility decisions on a case-by-case
basis based on their criteria.
Since the SOP must be provided to the student with a disability whose eligibility terminates due to graduation or age,
it is reasonable to conclude that the SOP must be completed and provided to the student by the end of the final year
of a student’s high school education. That does not mean that it cannot be completed and provided to the student
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prior to graduation. The timing of completion of the SOP may vary depending on the student’s postsecondary goals.
If a student is transitioning to higher education, the SOP may be necessary as the student applies to a college or
university. Likewise, this information may be necessary as a student applies for services from state agencies such
as vocational rehabilitation. In some instances, it may be most appropriate to wait until the spring of a student’s final
year to provide an agency or employer the most updated information on the performance of the student. (See
Appendix A, Figure 8-2, Summary of Performance form, and
www.kansped.org .)
State Statute:
K.S.A. 72-986(m)
(m) For a child whose eligibility for services under this act terminates under either of the circumstances described in subsection (l), the agency
shall provide the child with a summary of the child’s academic achievement and functional performance, which shall include
recommendations on how to assist the child in meeting the child’s postsecondary goals.
E. REVOCATION OF CONSENT FOR SPECIAL EDUCATION SERVICES
Parent consent is voluntary, and may be revoked by the parents at any time. If a parent revokes consent for existing
services, the LEA should meet with the parent to attempt to resolve the difficulty, seek mediation, or possibly initiate a
due process proceeding to override the parent's objection. If the parent cannot be convinced to continue the
services, the LEA also may honor the parent's objection and cease provision of the services. In this case, the LEA
should send written notice to the parent stating that it stands ready, willing, and able to provide appropriate services
to the child, if the parent reconsiders his or her objection to those services.
If the parents or an adult student revokes consent for special education services, no reevaluation is needed. The
student continues to have a right to FAPE, despite the adult students’ or the parents' decision to withdraw from special
education services. Schools ultimately have the burden to provide FAPE, and should recognize the potential legal
ramifications if they do not pursue mediation and/or due process when the parents and/or adult student revokes consent
to continue services. A student or his/her parents could come back later and ask for compensatory education.
Additionally, K.S.A. 72-977 states that:
"…it shall be the duty of the parent of each exceptional child to require such child to attend school
to receive the special education and related services which are indicated on the child's IEP or to
provide for such services privately. (b) The provisions of subsection (1) do not apply to gifted
children or to parents of gifted children."
Therefore, the parent can provide the services privately. The requirement for parent responsibility for mandatory special
education services applies only to parents of children with disabilities, not to parents of children who are gifted.
When parents revoke their consent for a specific special education action, the revocation is not retroactive but
becomes effective on the date that it was revoked (K.A.R. 91-40-1(l)(3); 34 C.F.R. 300.9). Therefore, the revoking of
consent does not negate any action that has occurred after the previous consent was given and before the consent
was revoked.
If the parent refuses or revokes consent for one service or activity the school cannot deny the parent or child any
other activity or service on the child’s IEP (K.A.R. 91-40-27(h)). In addition, because consent for services must be in
writing, revocation of consent must be in writing.
State Regulations:
K.A.R. 91-40-1(l)(3)
(3) A parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at any time, but if the
parent revokes consent, that the revocation is not retroactive and does not negate an action that has occurred after the consent was
given and before the consent was revoked.
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F. STUDENT DROPS OUT OF SCHOOL
Under K.S.A. 72-1111, students without disabilities are allowed to drop out of school at age 16, and may at some
point obtain a General Education Diploma (GED). However, as discussed previously, K.S.A. 72-977 gives parents of
a child with a disability the responsibility to provide for the special education services for their child, either within the
public school or through private means. If for some reason a student with a disability drops out of school,
documentation to that effect must be placed in the student’s confidential file. The school must inform the parents that
special education services continue to be available to the student. KSDE recommends that the school send a letter
to the parents, stating that the school remains ready to provide special education services to their child. If the
student reenrolls, the previous IEP must be implemented until a new IEP is developed.
If a student drops out of school, the school is obligated to consider the student's FAPE entitlement very carefully.
The school has an obligation to report the student's truancy to the District Attorney or County Attorney if the student
is younger than age 18. The school may want to consult with the school's attorney on this issue as well.
If a student drops out of school, no Prior Written Notice, consent, or reevaluation is required. However, reevaluation
may be needed if the student was to reenroll and a new IEP may need to be developed.
G. PRIOR WRITTEN NOTICE AND REQUEST FOR CONSENT
For some situations discussed within this chapter, parents must receive Prior Written Notice, and sometimes the
school must obtain informed parent consent. (See Appendix A, figures 1-5 and 1-6, Prior Written Notice and Consent
forms and
www.kansped.org .)
The following chart may be useful to districts in determining when a reevaluation, Prior Written Notice and parent
consent, as well as a Summary of Performance (SOP) are needed:
Reason for
Discontinuing Services
Reevaluation
Required
Prior Written
Notice Required
Parent or Adult
Student Consent
Required
SOP
Required
No longer eligible for special
education and related services
Yes
Yes
Yes
No
Graduation
No
Yes
No
Yes
Services at age 21
No
Yes
No
Yes
Revokes consent for special
education services
No
No
No
No
Drops out of school
No
No
No
No
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QUESTIONS AND ANSWERS ABOUT
DISCONTINUING SPECIAL EDUCATION SERVICES
1. What if the student no longer requires special education services?
The IEP Team must determine whether the student no longer requires special education services based on data
from a reevaluation. If, after a reevaluation, the team determines that the student is no longer eligible for special
education it must give parents Prior Written Notice of that determination and that the team is proposing to end
services. The school must also request that the parent give written consent for the end of services. The IEP
Team may also determine that the student qualifies as a student with a disability under Section 504 and refer the
student to the Section 504 team, which would write a Section 504 plan for him/her. (See Appendix G.)
2. What is required when the student graduates from high school?
The school must provide the student, if age 18, and the parents with Prior Written Notice of exiting special
education. The Prior Written Notice will clearly state that the student will no longer be entitled to receive special
education services from the district after graduation. Informed parent consent is not required. Additionally, the
school must provide the student with a Summary of Performance (See Appendix A, Figure 8-2.).
3. May a student participate in graduation exercises with his or her classmates, if s/he is
not actually graduating?
Yes, the student may participate in graduation exercises unless a local policy would not allow it. However, if
there is such a policy, it must apply to all students and not just students receiving special education services.
This would apply even if a student has met all of the credits for graduation, but the IEP team determines that
additional services are needed. Some students may require services until age 21 to meet IEP goals, which
should be addressed within the student's transition plan. In either case, the student could participate in
graduation exercises with his/her class, but not actually receive a diploma at that time.
4. Are students who drop out of school and later begin working on a General Education
Diploma (GED) eligible for special education and related services?
The student must be enrolled in the public school in order to receive special education and related services. A
student who drops out of school and later enrolls in a program to obtain a General Education Diploma (GED)
would not have special education services available to him/her. However, if there are IEP goals that were not
completed before the student dropped out of school, the student may reenroll in the public school. The student
may be entitled to receive services until June 30 following the student's 21
st
birthday. Obtaining a GED does not
end a student’s eligibility for special education services (34 C.F.R. 300.102(a)(3)(iv).
5. What if the team decides that the child is no longer eligible for special education
services, but the parents refuse to consent to the child exiting from services?
Services must continue. However, the team could continue to try to reach consensus with the parent. If parents
continue to refuse to provide consent, then the school could request mediation and/or due process.
6. What if a child who has exited from special education services is referred again?
A reevaluation would be conducted to reestablish whether the child continues to be a child with an exceptionality
and has a need for special education and related services, thus making the child eligible once again for special
education services. See Chapter 7, Reevaluation. The school would provide Prior Written Notice and request
consent from the parents or adult student before beginning the reevaluation.
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7. A student who becomes 21 years of age during the school year would no longer be
eligible for services after June 30 following the end of that school year. What if the
student's birthday is July 1?
Technically, if the student reaches 21 during the new school year (even for one day) and would be entitled to
services until the following June 30, which would be just before the student's 22
nd
birthday on July 1.
8. What is the school’s responsibility if the parents of a child want the child dismissed
from special education, but the school representatives on the team feel this is
inappropriate?
Parents always have the right to rescind their written informed consent to the provision of special education and
related services for their child. If the parents unilaterally withdraw their child from special education and the
remaining members of the child’s IEP Team feel that the child continues to need special education, the school
will have to consider its options to request mediation, initiate due process, or inform SRS or the District Attorney,
depending on the circumstances and the age of the child.
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CHAPTER 9
CONFIDENTIALITY
INTRODUCTION
Confidentiality of educational records is a basic right shared by all students in public schools and their parents.
These fundamental rights are described in the Family Educational Rights and Privacy Act (FERPA) of 1974, as
amended (2006). Appendix F and
www.kansped.org includes a copy of the federal regulations relating to FERPA,
which applies to all students, not only those with exceptionalities. Kansas Special Education Regulations,
K.A.R. 91-40-50 has adopted by reference provisions in 34 C.F.R. 300.612-300.624, as effective on January 1, 2007,
which concern parental access to educational records and confidentiality of those records, are adopted by reference.
Confidentiality regulations apply to the State, to all public schools and private schools that accept federal funds. In
addition, all school personnel (including contracted employees) are governed by confidentiality requirements of the
Individuals with Disabilities Education Act (IDEA), which apply to students with exceptionalities. Confidentiality is one of
the rights afforded to parents and is included in the Parent Rights document (See Appendix A, Figure 1-2.). Chapter 1 in
this Handbook includes additional information about parent rights. All people involved in special education should be
aware of the laws and regulations ensuring that all records and information will be kept secure and remain confidential.
This chapter provides specific information about confidentiality requirements for schools:
A. Federal and State Requirements
B. Access to Records
C. Transfer of Records
D. Release of Information
E. Amendment of Records
F. Destruction of Records
G. Age of Majority
H. Test Protocols
I.
Discipline Records
J. Child in Need of Care
A. FEDERAL AND STATE REQUIREMENTS
Each
school shall annually notify parents of their rights under FERPA. The notice must inform parents or adult
students that they have the right to:
1. Inspect and review the student's education records;
2. Seek amendment of the student's education records that the parent or eligible student believes to be
inaccurate, misleading, or otherwise in violation of the student's
privacy rights;
3. Consent to disclosures of personally identifiable information contained in the student's education records,
except to the extent that FERPA and Sec. 99.31 authorize disclosure without consent; and
4. File a complaint under Sec. 99.63 and 99.64 concerning alleged failures by the
educational agency or
institution to comply with the requirements of FERPA.
Additionally, the notice must include all of the following:
•
The procedure for exercising the right to inspect and review education records.
•
The procedure for requesting amendment of records.
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The school district may provide this notice by any means that are reasonably likely to inform the parents or eligible
students of their
rights. The school shall effectively notify parents who have a primary or home language other than
English. (34 C.F.R. 99.7) This notice should adequately inform parents prior to any identification, location, or
evaluation activity taking place. A sample of an annual notice regarding FERPA requirements is in Appendix A,
Figure 9-1.
Definitions of terms used are as follows (K.A.R. 91-40-50; 34 C.F.R. 300.32):
Personally identifiable
means information includes information such as the name of the child, child's parents,
or other family member; address; personal identifier such as the child's social security number or student
number; or list of personal characteristics or other information that would make it possible to identify the child.
Destruction
means physically destroying the medium on which information is recorded or removing all personal
identifiers from the information so no one can be identified.
Educational records
means any document or medium on which information directly related to one or more
students is maintained by a participating agency.
Participating agency
means any educational agency or institution that collects maintains or uses personally
identifiable student information to provide special education and related services to children with disabilities.
In addition to these Federal requirements, the Kansas State Department of Education (KSDE) is obligated to
establish policies and procedures to ensure that confidentiality requirements are in place at every participating
agency. KSDE does this by having each public agency accessing funds sign assurances and adopt or establish local
policies and procedures consistent with confidentiality requirements.
Federal Regulations:
Sec. 300.32
Personally identifiable means that information includes--
(i)
The name of the child, the child's parent, or other family member;
(ii) The address of the child;
(iii) A personal identifier, such as the child's social security number or student number; or
(iv)
a list of personal characteristics or other information that would make it possible to identify the child with reasonable
certainty.
(v)
Sec. 300.612. Notice to parents
(a) The SEA shall give notice that is adequate to fully inform parents about the requirements of Sec. 300.123, including--
(1)
A description of the extent that the notice is given in the native languages of the various population groups in the State;
(2)
A description of the children on whom personally identifiable information is maintained, the types of information sought, the
methods the State intends to use in gathering the information (including the sources from whom information is gathered), and the
uses to be made of the information;
(3)
A summary of the policies and procedures that participating agencies must follow regarding storage, disclosure to third parties,
retention, and destruction of personally identifiable information; and
(4)
A description of all of the rights of parents and children regarding this information, including the rights under the Family
Educational Rights and Privacy Act of 1974 and implementing regulations in 34 C.F.R. part 99.
(b) Before any major identification, location, or evaluation activity, the notice must be published or announced in newspapers or other media,
or both, with circulation adequate to notify parents throughout the State of the activity.
State Regulations:
K.A.R. 91-40-50. Parental access to student records; confidentiality.
(a) As used in this regulation, the following terms shall have the meanings specified in this subsection:
(1) "Destruction" means physically destroying the medium on which information is recorded or removing all personal identifiers from the
information so that no one can be identified.
(2) "Education records" means any document or medium on which information directly related to one or more students is maintained by a
participating agency in accordance with K.S.A. 72-6214 and amendments thereto.
(3) "Participating agency" means any educational agency or institution that collects, maintains, or uses personally identifiable student
information to provide special education and related services to children with disabilities.
(b) The provisions in 34 C.F.R. §§ 300.612 through 300.624, as in effect on August 14, 2006, and published in 71 fed. reg. 46802-46804
(2006), which concern parental access to education records and confidentiality of those records, are hereby adopted by reference.
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B. ACCESS TO RECORDS
FERPA and Federal and State special education laws and regulations require schools to have reasonable policies in
place to allow parents to review and inspect their child's records. An education record means those records that are
directly related to a student and maintained by an
educational agency or institution or by a party acting for the agency
or institution.
Educational records
may include, but not limited to:
•
academic work completed and level of achievement
•
attendance data
•
scores and test protocols of standardized intelligence, aptitude, and psychological tests
•
interest inventory results
•
health data
•
family background information
•
information from teachers or counselors
•
observations and verified reports of serious or recurrent behavior patterns
•
IEPs
•
documentation of notice and consent
Under certain circumstances, a teacher's working file would not be considered to be part of the child's record.
FERPA regulation 34 C.F.R. 99.3, states that the term
"education records" 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 district must prevent the disclosure to any unauthorized person of personally identifiable information pertaining to
all students.
Disclosure
is the release, transfer or other communication of records, or the personally identifiable
information contained in those records, to any party, by any means, including oral, written, or electronic.
FERPA allows parents to inspect and review all education records of their children maintained by an educational
agency that receives Federal funds. This includes all public schools and private schools that accept federal funds.
The school must comply with a request to inspect records within a reasonable time, not to exceed 45 calendar days.
FERPA regulations allow some
exceptions to the requirement to obtain parent consent before releasing
records
. All of these exceptions also apply to the confidentiality requirements in the federal special education
regulations (34 C.F.R. 300.622(a)). For example, FERPA allows the school to release records to authorized
individuals, such as:
•
other school officials, including teachers at the school where the student attends, who have a legitimate
educational interest (34 C.F.R. 99.31(a)(1));
•
officials of another school, school district, or postsecondary educational institution where the student is
enrolled or seeks or intends to enroll, IF (a) the district's annual notice included a notice that the district
forwards education records to other agencies that request records and in which the student seeks or intends
to enroll; or (b) the district makes a reasonable attempt to notify the parents or the student of the disclosure
at the last known address (34 C.F.R. 99.31(a)(2)), however no notice is required if the disclosure is initiated
by the parent or adult student;
•
authorized representatives of the US Comptroller General, US Secretary of Education, and State
Educational Agencies in connection with an audit or evaluation of Federal or State supported programs, or
for the enforcement or compliance with Federal legal requirements related to those programs (34 C.F.R.
99.31(a)(3));
•
disclosure in connection with financial aid for which the student has applied or received to determine
eligibility, amount, or conditions of the aid or to enforce the terms and conditions of the aid (34 C.F.R.
99.31(a)(4));
•
disclosure to State and local officials to whom the information is specifically allowed to be reported pursuant
to State statute (34 C.F.R. 99.31(a)(5));
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•
disclosure to organizations conducting studies for educational agencies to develop, validate or administer
predictive tests; administer student aid programs; or improve instruction, but only if the study does not allow
personal identification of parents and students to anyone other than representatives of the organization
conducting the study, and if the information is destroyed when no longer needed for the purposes for which
the study was conducted (34 C.F.R. 99.31(a)(6));
•
disclosure to accrediting organizations to carry out their functions (34 C.F.R. 99.31(a)(7));
•
disclosure to a parent of a student who qualifies as a dependent under section 152 of the Internal
Revenue Service Code (34 C.F.R. 99.31(a)(8));
•
disclosure of relevant educational records to a court in a legal action initiated by the district against a parent.
Also, disclosure to comply with a judicial order or subpoena. However, these disclosures may be made only
if the district makes a reasonable effort to notify the parents or eligible student of the order or subpoena in
advance of compliance with the order or subpoena, unless the order or subpoena states that the existence
or contents of the order or subpoena not be disclosed (34 C.F.R. 99.31(a)(9));
•
disclosure in connection with a health or safety emergency, if knowledge of the information is necessary to
protect the health or safety of the student or other individuals (34 C.F.R. 99.31(a)(10));
•
disclosure of directory information. This is information contained in an education record of a student which
would not generally be considered harmful or an invasion of privacy if disclosed. It includes, but is not
limited to, the student's name, address, telephone listing, date and place of birth, major field of study,
participation in officially recognized activities and sports, weight and height of members of athletic teams,
dates of attendance, degrees and awards received, and the most previous educational agency or institution
attended (34 C.F.R. 99.31(a)(11));
•
disclosure to the adult student or student of any age if attending a postsecondary school, or to the parents of
a student who has not reached 18 years of age and is not attending an institution of postsecondary
education (34 C.F.R. 99.31 (a)(12)); and
•
disclosure of the results of any disciplinary proceeding conducted by an institution of postsecondary
education against an alleged perpetrator to an alleged victim of any crime of violence, as defined by section
16 of title 18, United States Code (34 C.F.R. 99.31 (a)(13)); or
•
Disclosure to a parent of a student attending an institution of post secondary education regarding the illegal
use of alcohol (34 C.F.R. 300.622(a)).
To ensure protection of education records, the school district must:
1. Obtain written consent before disclosing personally identifiable information to unauthorized individuals. A
parent must provide consent if the child is under 18 years of age (unless one of the exceptions listed above
applies).
2. Designate and train a records manager to assure security of confidential records for students with
exceptionalities.
3. Keep a record or log of all parties obtaining access to education records, including the name of the party,
the date access took place, and the purpose of the authorized use.
4. Maintain for public inspection a current listing of names and positions of employees who may have access
to personally identifiable information.
5. Ensure the confidentiality of personally identifiable information at collection, storage, disclosure, and
destruction stages.
6. Ensure that, if any education record includes information on more than one student, a parent of a child must
have the right to inspect and review only the information relating to his or her child, or to be informed of that
specific information.
7. Ensure that each person collecting or using personally identifiable information receives training or instruction
regarding the policies and procedures governing confidentiality of personally identifiable information. The
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district must maintain a record of the training provided, the person or persons providing the training, dates of
the training, those attending, and subjects covered.
8. Provide a parent, upon request, a list of the types and locations of records collected, maintained, or used by
the district.
9. Respond to any reasonable request made by a parent for an explanation and interpretation of a record.
10. Provide a parent, upon request, access to the child's records, and under certain circumstances, a copy of
the records (34 C.F.R. 300.613). Most districts copy records for parents without charge. However, the law
does allow for fees for copies of records made for a parent if the fee does not prevent a parent from
exercising the right to inspect and review those records. A fee may not be charged to search for or retrieve
information.
The following sample forms are in Appendix A:
Figure 9-2, Sample Form for Release of Records
Figure 9-3, Sample Log for Accessing Records
Figure 9-4, Sample List of Employees who Can Access Records
Federal Regulation:
Sec. 300.613. Access rights
(a) Each participating agency shall permit parents to inspect and review any education records relating to their children that are collected,
maintained, or used by the agency under this part. The agency shall comply with a request without unnecessary delay and before any
meeting regarding an IEP, or any hearing pursuant to Secs. 300.507 and 300.521-300.528, and in no case more than 45 days after the
request has been made.
(b) The right to inspect and review education records under this section includes--
(1) The right to a response from the participating agency to reasonable requests for explanations and interpretations of the records;
(2) The right to request that the agency provide copies of the records containing the information if failure to provide those copies would
effectively prevent the parent from exercising the right to inspect and review the records; and
(3) The right to have a representative of the parent inspect and review the records.
(c) An agency may presume that the parent has authority to inspect and review records relating to his or her child unless the agency has been
advised that the parent does not have the authority under applicable State law governing such matters as guardianship, separation, and
divorce.
C. TRANSFER OF RECORDS
Education records include personally identifiable information, and may not be released to another agency or
organization without parent consent. However, when a student transfers to another Kansas school district or
nonpublic school, education records may be forwarded without student or parent consent if the annual FERPA notice
to parents includes a statement that these records will be forwarded to the receiving school. (Figure 9-1 in Appendix
A is a sample FERPA notice.) Immunization records are included in the educational records (under the annual
notification exception) that may also be shared with a receiving school without student or parent consent. By sharing
such information between schools, the unnecessary immunization of children can be avoided.
Children in foster care who move from one community to another should be admitted to the receiving school without
delay. The receiving school may access the education record (including the immunization portion of the record)
without parent consent, if proper public notice has been provided to the parent (K.S.A. 1997 Supp. 72-5209(d)). If
the receiving district is unable to determine the previous district, the school can access the Foster Care Database
which includes information from SRS and JJA regarding custody and out of home placement, as well as educational
records from the school districts the child has attended.
Kansas schools may NOT withhold records because of fines or other such reasons. The sending district is to
transfer the original school record to the requesting district (K.S.A. 72-5386). The sending district should maintain a
copy of the educational record that is sent. In addition, Kansas special education regulations require the sending
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district to immediately transfer the IEP, and any additional educationally relevant information regarding a child with an
exceptionality, to the receiving district (K.A.R. 91-40-4(c)). If the school's annual FERPA notification does not contain
a statement that the school sends educational records to a receiving school, it must make a reasonable attempt to
notify the parent at the last known address of the parent.
When a child transfers from a school district in
another State
to a school district in Kansas, the Kansas school must
obtain parental consent to access the records from the school district in the other State.
State Statute:
K.S.A. 1997 Supp. 72-5209(d)
If a pupil transfers from one school to another, the school from which the student is transferring shall forward the pupil’s immunization
certification to the new school.
K.S.A. 72-5386
(a) This section shall apply to all school districts and to every pupil of any school district. As used in this section, the term "school records"
means transcripts, grade cards, the results of tests, assessments or evaluations, and all other personally identifiable records, files and data
directly related to a pupil.
(b) All school district property in the possession of any pupil shall be returned to the proper school district authority or paid for by the pupil
upon transfer of the pupil from the school district. The school records of any such pupil shall not be withheld for any reason. A school
district authority, upon request, shall provide a fully itemized list of the school district property in the possession of the pupil. In the event
that such school district authority receives an affidavit stating that the pupil's parents are unable to return the school district property which
is lost or missing, such school district authority shall note in the school records of the pupil that the pupil has complied with the provisions
of this section. In the event that a school district authority receives an affidavit from the board of education of another school district or
from the governing authority of a nonpublic school stating that a pupil's records are being requested as proof of identity of the pupil
pursuant to the provisions of K.S.A. 72-53,106, and amendments thereto, such school district authority shall forward a certified copy of
that part of the pupil's records which provides information regarding the identity of the pupil.
(c) The school records of each pupil are the property of the pupil and shall not be withheld by any school district. Upon request of a pupil or
the parent of a pupil, the school records of the pupil shall be given to such pupil or parent, or, upon transfer of the pupil to another school
district or to a nonpublic school, shall be forwarded to such school district or nonpublic school. A pupil's records forwarded to another
school district due to transfer will include original copies of all the student's records, including transcripts, grade cards, results of tests,
assessments or evaluations, and all other personally identifiable records, files and data directly related to the pupil.
State Regulations:
K.A.R. 91-40-4
(c)
Unless otherwise expressly authorized by state law, when a student transfers from a state school to a school district or from one school
district to another, the most recent individualized education program, as well as any additional educationally relevant information
concerning the child, shall be forwarded immediately to the receiving school district.
D. RELEASE OF INFORMATION
As discussed in previous sections, consent from the parent or adult student is required before education records may
be released (34 C.F.R.C.F.R. 300.622). Some examples of when parent consent is required include:
•
If a child is enrolled, or is going to enroll in a private school that is not located in the parent’s district
of residence, parental consent must be obtained before any personally identifiable information
about the child is released between officials in the district where the private school is located and
officials in the district of the parent’s residence
(34 C.F.R. 300.622(a)(3)).
•
Parental consent must be obtained before personally identifiable information is released to officials of
participating agencies providing or paying for transition services according to an IEP.
•
Additionally, parent consent is required when a school accesses reimbursement from Medicaid or private
insurance for special education services. To bill Medicaid, the school must release to the Medicaid billing
agency personally identifiable information, such as the student's name, social security or other student
number, category of exceptionality, and other pertinent information.
IDEA 2004 has determined that schools must obtain parental consent each time access to public benefits or
insurance is sought. They must also notify parents that the parents’ refusal to allow access to their public benefits or
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insurance does not relieve the public agency of its responsibility to ensure that all required services are provided at
no cost to the parents.
The Office of Special Education Programs (OSEP) has provided informal guidance that schools can obtain consent
one time annually for the specific services, and duration of services identified in a child’s IEP, and not be required to
obtain a separate consent each time a Medicaid agency or other public insurer is billed for the provision of required
services. If the specific services or the duration of services change, the school must obtain consent to access
Medicaid for the change in services (34 C.F.R. 300.154(d)(2)(iv)). A sample Parent Consent form to use to access
Medicaid reimbursement included in Appendix A as Figure 9-5 (See Appendix A, Figure 1-9, Letter to Smith, OSEP
Memo, Jan 2007; Figure 9-6, Kansas Medicaid Assistance Program Provider Manual.)
This memo does not address private insurance. The federal regulations also require that schools obtain parental
consent for release of information each time the school accesses the child’s private insurance. They must also notify
parents that the parents’ refusal to allow access to their insurance does not relieve the public agency of its
responsibility to ensure that all required services are provided at no cost to the parents.
Federal Regulation
:
Sec. 300.622 Consent.
(a) Parental consent must be obtained before personally identifiable information is disclosed to parties, other than officials of participating
agencies in accordance with paragraph (b)(1) of this section, unless the information is contained in education records, and the disclosure is
authorized without parental consent under 34 C.F.R. part 99.
(b)(1) Except as provided in paragraphs (b)(2) and (b)(3) of this section, parental consent is not required before personally identifiable
information is released to officials of participating agencies for purposes of meeting a requirement of this part.
(2) Parental consent, or the consent of an eligible child who has reached the age of majority under State law, must be obtained before
personally identifiable information is released to officials of participating agencies providing or paying for transition services in accordance
with §300.321(b)(3).
(3) If a child is enrolled, or is going to enroll in a private school that is not located in the LEA of the parent’s residence, parental consent must
be obtained before any personally identifiable information about the child is released between officials in the LEA where the private school is
located and officials in the LEA of the parent’s residence.
Sec. 300.154
(d) Children with disabilities who are covered by public benefits or insurance.
(1) A public agency may use the Medicaid or other public benefits or insurance programs in which a child participates to provide or pay for
services required under this part, as permitted under the public benefits or insurance program, except as provided in paragraph (d)(2) of this
section.
(2) With regard to services required to provide FAPE to an eligible child under this part, the public agency--
(i) May not require parents to sign up for or enroll in public benefits or insurance programs in order for their child to receive FAPE under
Part B of the Act;
(ii) May not require parents to incur an out-of pocket expense such as the payment of a deductible or copay amount incurred in filing a
claim for services provided pursuant to this part, but pursuant to paragraph (g)(2) of this section, may pay the cost that the parents
otherwise would be required to pay;
(iii) May not use a child’s benefits under a public benefits or insurance program if that use would--
(A) Decrease available lifetime coverage or any other insured benefit;
(B) Result in the family paying for services that would otherwise be covered by the public benefits or insurance program and that are
required for the child outside of the time the child is in school;
(C) Increase premiums or lead to the discontinuation of benefits or insurance; or
(D) Risk loss of eligibility for home and community-based waivers, based on aggregate health-related expenditures; and
(iv)(A) Must obtain parental consent, consistent with §300.9, each time that access to public benefits or insurance is sought; and
(B) Notify parents that the parents’ refusal to allow access to their public benefits or insurance does not relieve the public agency of its
responsibility to ensure that all required services are provided at no cost to the parents.
(e) Children with disabilities who are covered by private insurance.
(1) With regard to services required to provide FAPE to an eligible child under this part, a public agency may access the parents’ private
insurance proceeds only if the parents provide consent consistent with §300.9.
(2) Each time the public agency proposes to access the parents’ private insurance proceeds, the agency must--
(i) Obtain parental consent in accordance with paragraph (e)(1) of this section; and
(ii) Inform the parents that their refusal to permit the public agency to access their private insurance does not relieve the public agency of
its responsibility to ensure that all required services are provided at no cost to the parents.
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E. AMENDMENT OF RECORDS
Parents have the right to request that their child's education records be changed if something is inaccurate,
misleading, or in violation of the student’s rights of privacy. For example, if a child is evaluated and is identified with
a disability or health condition that later is determined to be wrong, the parents may ask that the school remove the
records relating to the inaccurate diagnosis.
If the school does not agree that the education records should be changed, staff must provide an opportunity for a
hearing, following FERPA requirements. The hearing officer would be the school's hearing officer, not a special
education due process hearing officer (34 C.F.R. 300.618).
Federal Regulation:
Sec. 300.618. Amendment of records at parent's request
(a)
A parent who believes that information in the education records collected, maintained, or used under this part is inaccurate or misleading
or violates the privacy or other rights of the child may request the participating agency that maintains the information to amend the
information.
(b)
The agency shall decide whether to amend the information in accordance with the request within a reasonable period of time of receipt of
the request.
(c) If the agency decides to refuse to amend the information in accordance with the request, it shall inform the parent of the refusal and advise
the parent of the right to a hearing under Sec. 300.619.
F. DESTRUCTION OF RECORDS
Federal auditing requires the availability of education records for identified students for 5 years after they exit from
special education services. After that period of time, schools may destroy records. However, before destroying
special education records, the school must notify the parent (or the adult student) that the information is no longer
needed to provide services to the student and that the school is proposing to destroy them.
The requirement to notify the parent or the adult student before records are destroyed may be problematic, if the
student moves from the address last known to the school. In such cases, the school is advised to send a certified
letter to the student at the last known address. If that letter is returned to the school, that return becomes the
documentation of the school's attempt to inform the student of the proposed destruction of records. In such cases,
the school may publish a public notice to students who graduated or left school five years previously. The notice
should be addressed to students and guardians, advising them of the proposed destruction of records and asking
them to contact the school if they object to the destruction.
Many schools inform parents of when the special education records of their child will be destroyed with a statement in
the child’s IEP. The following statement has been approved for insertion into an IEP:
“NOTICE OF DESTRUCTION OF SPECIAL EDUCATION RECORDS: Special education records
for each child with an exceptionality are maintained by the school district until no longer needed to
provide educational services to the child. This notice is to inform you that the special education
records for this student will be destroyed after five (5) years following program completion or
graduation from high school, unless the student (or the student’s legal guardian) has taken
possession of the records prior to that time.”
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Parents may also ask that their child's records be destroyed. However, a permanent record of the following
information may be maintained without time limitation:
•
A student's name, address, and phone number;
•
His or her grades;
•
Attendance record;
•
Classes attended;
•
Grade level completed; and
•
Year completed.
Federal Regulation:
Sec. 300.624. Destruction of information
(a)
The public agency shall inform parents when personally identifiable information collected, maintained, or used under this part is no longer
needed to provide educational services to the child.
(b)
The information must be destroyed at the request of the parents. However, a permanent record of a student's name, address, and phone
number, his or her grades, attendance record, classes attended, grade level completed, and year completed may be maintained without time
limitation.
G. AGE OF MAJORITY
In Kansas, the age of majority is 18. Students who are 18 years or older, unless they have a guardian appointed
under State law, have the right to grant or withhold consent, have access to records, to amend records, and to file a
complaint, etc. (See Chapter 1, Parent Rights In Special Education, for additional information on age of majority.)
Federal Regulation:
Sec. 300.625. Children's rights
(a)
The SEA shall provide policies and procedures regarding the extent to which children are afforded rights of privacy similar to those
afforded to parents, taking into consideration the age of the child and type or severity of disability.
(b)
Under the regulations for the Family Educational Rights and Privacy Act of 1974 (34 C.F.R. 99.5(a)), the rights of parents regarding
education records are transferred to the student at age 18.
(c)
If the rights accorded to parents under Part B of the Act are transferred to a student who reaches the age of majority, consistent with Sec.
300.520, the rights regarding educational records in Secs. 300.613 through 300.624 must also be transferred to the student. However, the
public agency must provide any notice required under section 615 of the Act to the student and the parents.
H. TEST PROTOCOLS
Some individualized testing involves the use of test protocols. These documents usually include the test questions or
stimuli and the student’s answers or responses. They may also include the correct answers, norm tables (scoring
tables), scoring sheets, and examiner’s notes. When a test protocol contains personally identifiable information directly
related to a particular student, that protocol is an education record and a parent has a right to inspect and review it. In
most cases, however, a parent would not have a right to a copy of a test protocol.
Requests for test protocols occur in varying contexts. Sometimes, parents ask to inspect or photocopy protocols
maintained by schools or their personnel. Occasionally, schools want to review or copy protocols of the parents’
independent educational evaluators. The variables here are whether one seeks to inspect the protocols or to copy them.
When a student with an exceptionality is the subject of a court or administrative hearing, parents may have additional
legal tools for accessing test protocols. These tools include pretrial discovery, subpoenas, and the right to question
witnesses about their records. Also, the US Department of Education has advised that a parent’s FERPA right to inspect
test protocols may include a right to copy them if ordered by a special education due process hearing officer or a judge
in a legal proceeding.
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Clearly, concerns exist about violating the test publisher's copyright protections. Schools are advised that Federal
regulation 34 C.F.R. 300.613(b) would allow parents to inspect and review the records. However, if parents want to
copy such records, the school may want to consult with their attorney. However, if failure to provide a copy of a
requested protocol would effectively prevent the parent from exercising the right to inspect and review their child’s
educational records, the school may be required to provide a copy to the parent (Letter to Thomas, 211 IDELR 420
(FPCO 1986)).
Federal Regulation:
Sec. 300.613(b)
(b) The right to inspect and review education records under this section includes--
(2) The right to request that the agency provide copies of the records containing the information if failure to provide those copies would
effectively prevent the parent from exercising the right to inspect and review the records…
I. DISCIPLINE RECORDS
Schools reporting a crime are allowed to forward the student's special education and disciplinary records to the
appropriate authorities
only
if they have parent consent or if one of the FERPA exceptions to the consent
requirement applies (34 C.F.R. 300.535(b)). See Section A of this chapter, and also Chapter 13 for more information
about release of discipline records to law enforcement.
In addition, other Federal and State requirements are as follows:
•
When schools send records of students to other schools, they are also required to include the discipline
records. (Note: K.S.A. 72-5386 defines school records to include ALL personally identifiable data.)
•
If school employees are required to make a report to a law enforcement agency, they may be charged with
failure to report if they do not comply.
•
If school employees report a crime, the school may not impose sanctions on them.
•
If school employees report a crime in good faith, they have immunity from civil liability.
Federal Regulation:
Sec. 300.535(b)
(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.
Sec. 300.229. Disciplinary information
(a) The State may require that a public agency include in the records of a child with a disability a statement of any current or previous
disciplinary action that has been taken against the child and transmit the statement to the same extent that the disciplinary information is
included in, and transmitted with, the student records of nondisabled children.
(b) The statement may include a description of any behavior engaged in by the child that required disciplinary action, a description of the
disciplinary action taken, and any other information that is relevant to the safety of the child and other individuals involved with the child.
(c) If the State adopts such a policy, and the child transfers from one school to another, the transmission of any of the child's records must
include both the child's current individualized education program and any statement of current or previous disciplinary action that has been
taken against the child.
State Statute:
K.S.A. 72-89b04
(a)
Willful and knowing failure of a school employee to make a report required by subsection (b)(1) of K.S.A. 1998 Supp. 72-89b03, and
amendments thereto, is a class B nonperson misdemeanor. Preventing or interfering with the intent to prevent, the making of a report
required by subsection (b)(1) of K.S.A. 1998 Supp. 72-89b03, and amendments thereto is a class B nonperson misdemeanor.
(b)
Willful and knowing failure of any employee designated by a board of education to transmit reports made by school employees to the
appropriate state or local law enforcement agency as required by subsection (b)(1) of K.S.A. 1998 Supp 72-89b03, and amendments
thereto, is a class B nonperson misdemeanor.
(c)
No board of education shall terminate the employment of, or prevent or impair the profession of, or impose any other sanction on any
school employee because the employee made an oral or written report relating to any criminal act that the employee knows has been
committed or reasonably believes will be committed at school, on school property, or at a school supervised activity.
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(d) Any board of education, and any member or employee thereof, participating without malice in the making of an oral or written report to a
law enforcement agency relating to any criminal act that is known to have been committed or reasonably is believed will be committed at
school, on school property, or at a school supervised activity shall have immunity from any civil liability that might otherwise be incurred
or imposed. Any such participant shall have the same immunity with respect to participation in any judicial proceedings resulting from
the report.
J. CHILD IN NEED OF CARE
As part of the Child in Need of Care case, the following agencies and people may freely exchange information:
•
Department of Social and Rehabilitation Services;
•
Commissioner of Juvenile Justice;
•
Law enforcement agency receiving the report;
•
Members of a Court-appointed multidisciplinary team;
•
Entity mandated by Federal or State law to investigate child in need of care cases;
•
Military enclave or Indian tribal organization authorized to investigate such cases;
•
County or district attorney;
•
Court services officer who has taken a child into custody;
•
Guardian ad litem appointed for a child alleged to be in need of care;
•
An intake and assessment worker; and
•
Any community corrections program that has the child under Court-ordered supervision.
Note that this list does NOT include educational agencies or school personnel.
However, the following agencies and people or entities must have access to information received by the Department
of Social and Rehabilitation Services, law enforcement agency, or any juvenile intake and assessment worker. This
access to records is limited to information reasonably necessary to carry out their lawful responsibilities to maintain
their personal safety and that of others in their care; or to diagnose, treat, care for, or protect a child alleged to be in
need of care. Accordingly, educational agencies may "receive" records from the agencies listed,
but may not provide
educational records to these agencies except as provided by FERPA.
1. Child named in the record;
2. Parent or other person responsible for the child's welfare, or the child's legal representative;
3. Court-Appointed Special Advocate for a child, Citizen Review Board, or other advocate that reports to the
Court;
4. Person licensed to practice healing arts or mental health, in order to diagnose, care for, treat, or supervise:
a. a child suspected to be in need of care;
b. a member of the child's family; or a person who allegedly abused or neglected the child
c. Person or entity licensed or registered by the Secretary of Health and Environment to care for, treat, or
supervise a child in need of care.
5. To assist a child in foster care or child care, the Secretary shall provide relevant information to foster
parents or child care facility before placement and as such information becomes available to the Secretary;
6. Coroner or medical examiner when determining the cause of a child's death;
7. Child Death Review Board established under K.S.A. 22a-243;
8. Prospective adoptive parent before placing a child in their care;
9. Department of Health and Environment to carry out responsibilities relating to licensure or registration of
child care providers;
10. Disability Rights Center if they received a complaint regarding neglect pursuant to 74-5515;
11. Any educational institution to the extent necessary to enable the institution to provide the safest possible
environment for its pupils and employees; and
12. Any educator to the extent needed to enable him/her to protect the personal safety of him/her and the pupils.
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State Statute:
K.S.A. 38-1507
(a) Except as otherwise provided, in order to protect the privacy of children who are the subject of a child in need of care record or report, all
records and reports concerning children in need of care, including the juvenile intake and assessment report, received by the department of
social and rehabilitation services, a law enforcement agency or any juvenile intake and assessment worker shall be kept confidential
except:
(1) To those persons or entities with a need for information that is directly related to achieving the purposes of this code, or
(2) Upon an order of a court of competent jurisdiction pursuant to a determination by the court that disclosure of the
reports and records is in the best interests of the child or are necessary for the proceedings before the court, or both, and are
otherwise admissible in evidence. Such access shall be limited to in camera inspection unless the court otherwise issues an
order specifying the terms of disclosure.
(b) The provisions of subsection (a) shall not prevent disclosure of information to an educational institution or to individual educators about a
pupil specified in subsection (a) of K.S.A. 1998 Supp. 72-89b03 and amendments thereto.
(c) When a report is received by the department of social and rehabilitation services, a law enforcement agency or any juvenile intake and
assessment worker which indicates a child may be in need of care, the following persons and entities shall have a free exchange of
information between and among them:
(1) The department of social and rehabilitation services;
(2) The commissioner of juvenile justice;
(3) The law enforcement agency receiving such report;
(4) Members of a court appointed multidisciplinary team;
(5) An entity mandated by federal law or an agency of any state authorized to receive and investigate reports of a child known or suspected to
be in need of care;
(6) A military enclave or Indian tribal organization authorized to receive and investigate reports of a child known or suspected to be in need of
care;
(7) A county or district attorney;
(8) A court services officer who has taken a child into custody pursuant to K.S.A. 38-1527, and amendments thereto;
(9) A guardian ad litem appointed for a child alleged to be in need of care;
(10) An intake and assessment worker; and
(11) Any community corrections program which has the child under court ordered supervision.
(d) The following persons or entities shall have access to information, records or reports received by the department of social and
rehabilitation services, a law enforcement agency or any juvenile intake and assessment worker. Access shall be limited to information
reasonably necessary to carry out their lawful responsibilities to maintain their personal safety and the personal safety of individuals in
their care or to diagnose, treat, care for or protect a child alleged to be in need of care.
(1) A child named in the report or records.
(2) A parent or other person responsible for the welfare of a child, or such person's legal representative.
(3) A court appointed special advocate for a child, citizen review board or other advocate which reports to the court.
(4)
A person licensed to practice the healing arts or mental health profession in order to diagnose, care for, treat or supervise:
(A) A child whom such service provider reasonably suspects may be in need of care;
(B) A member of the child's family; or
(C)
A person who allegedly abused or neglected the child.
(5) A person or entity licensed or registered by the secretary of health and environment or approved by the secretary of social and
rehabilitation services to care for, treat or supervise a child in need of care. In order to assist a child placed for care by the secretary of
social and rehabilitation services in a foster home or child care facility, the secretary shall provide relevant information to the foster parents
or child care facility prior to placement and as such information becomes available to the secretary.
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K.S.A. 38-1507(c d),
(continued)
(6) A coroner or medical examiner when such person is determining the cause of death of a child.
(7) The state child death review board established under K.S.A. 22a-243, and amendments thereto.
(8) A prospective adoptive parent prior to placing a child in their care.
(9) The department of health and environment pursuant to K.S.A. 59-512, and amendments thereto, for the purpose of carrying out
responsibilities relating to licensure or registration of child care providers as required by chapter 65 of article 5 of the Kansas Statutes
Annotated, and amendments thereto.
(10) The state protection and advocacy agency as provided by subsection (a)(10) of K.S.A. 65-5603 or subsection (a)(2)(A) and (B) of K.S.A.
74-5515, and amendments thereto.
(11) Any educational institution to the extent necessary to enable the educational institution to provide the safest possible environment for its
pupils and employees.
(12) Any educator to the extent necessary to enable the educator to protect the personal safety of the educator and the
educator's pupils.
(e) Information from a record or report of a child in need of care shall be available to members of the standing house or senate committee on
judiciary, house committee on appropriations, senate committee on ways and means, legislative post audit committee and joint committee
on children and families, carrying out such members' or committee's official function in accordance with K.S.A. 75-4319 and amendments
thereto, in a closed or executive meeting. Except in limited conditions established by 2/3 of the committee shall not be further disclosed.
Unauthorized disclosure may subject such member to discipline or censure from the house of representatives or senate.
(f)
Nothing in this section shall be interpreted to prohibit the secretary of social and rehabilitation services from summarizing the outcome of
department actions regarding a child alleged to be a child in need of care to a person having made such report.
(g) Disclosure of information from reports or records of a child in need of care to the public shall be limited to confirmation of factual details
with respect to how the case was handled that do not violate the privacy of the child, if living, or the child's siblings, parents or guardians.
Further, confidential information may be released to the public only with the expressed written permission of the individuals involved or
their representatives or upon order of the court having jurisdiction upon a finding by the court that public disclosure of information in the
records or reports is necessary for the resolution of an issue before the court.
(h) Nothing in this section shall be interpreted to prohibit a court of competent jurisdiction from making an order disclosing the findings or
information pursuant to a report of alleged or suspected child abuse or neglect which has resulted in a child fatality or near fatality if the
court determines such disclosure is necessary to a legitimate state purpose. In making such order, the court shall give due consideration to
the privacy of the child, if living, or the child's siblings, parents or guardians.
(i)
Information authorized to be disclosed in subsections (d) through (g) shall not contain information which identifies a reporter of a child in
need of care.
(j)
Records or reports authorized to be disclosed in this section shall not be further disclosed, except that the provisions of this subsection shall
not prevent disclosure of information to an educational institution or to individual educators about a pupil specified in subsection (a) of
K.S.A. 1998 Supp. 72-89b03 and amendments thereto.
(k) Anyone who participates in providing or receiving information without malice under the provisions of this section shall have immunity
from any civil liability that might otherwise be incurred or imposed. Any such participant shall have the same immunity with respect to
participation in any judicial proceedings resulting from providing or receiving information.
(l)
No individual, association, partnership, corporation or other entity shall willfully or knowingly disclose, permit or encourage
disclosure of the contents of records or reports concerning a child in need of care received by the department of social and
rehabilitation services, a law enforcement agency or a juvenile intake and assessment worker except as provided by the code.
Violation of this subsection is a class B misdemeanor.
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QUESTIONS AND ANSWERS ABOUT CONFIDENTIALITY
1. What must a school do to provide parents reasonable access to their child's records?
Records should be in a location that parents can find, maintained during normal business hours, and not in a
physically inaccessible area (downstairs or upstairs, with no elevator available). Upon request, someone who can
interpret the records should be available to the parents. Parents may also request that copies of their child's
education records be made for them. However, a school is required to provide copies of educational records only if
failure to provide those copies would effectively prevent the parent from exercising the right to review and inspect the
records. If copies are provided schools may charge a reasonable fee and may take a reasonable time to provide the
copies to the parents. In cases where failure to provide copies of records would effectively prevent a parent from
exercising the right to inspect and review education records, and the parents are unable to pay the fee, the school
must provide the records without charge.
2. Are school personnel required to provide parents access to their working files and
anecdotal records?
FERPA and IDEA have included definitions of "education records." These definitions, while expansive, do not include
the staff's working files and anecdotal records. FERPA regulation 34 C.F.R. 99.3 states that the term "education
records" does not include "records that are kept in the sole possession of the maker of the record, 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."
3. If a district cannot determine which Kansas school a student transferred from, may
the State's Management Information System (MIS) be accessed to determine this
information?
Yes. If the sending school district has used a FERPA notification form (See sample, Figure 9-1 in Appendix A), the
Management Information System (MIS) data manager may inform the special education director of the receiving
district of the student's previous district of attendance. The receiving district may then contact the sending district to
request student records without parent consent. This exception to FERPA confidentiality requirements is in FERPA
regulation 34 C.F.R. 99.31(a)(2).
4. Only a limited amount of information is needed to bill Medicaid (not the entire
education record). May this limited information be released without parent consent to
the Medicaid billing agency in order to access reimbursement for special education
services?
No. Parent consent is required by FERPA, because the information being released is personally identifiable
(student's name, social security or other student number, category of exceptionality, etc.). In addition, schools must
obtain parental consent to access public insurance such as Medicaid, at least annually for the specific services, and
duration of those services identified in the child’s IEP. The school must obtain parental consent to access Medicaid
for any change in a service or amount of a service.
5. What is the school's obligation to provide special education when the student cannot
be enrolled because s/he does not have documentation of immunizations?
K.S.A. 72-5209 requires documentation of immunization before admitting students enrolling for the first time in a
Kansas school. This may include a student transferring from an out-of-state school, or a child enrolling, for the first
time in Kansas, in a kindergarten or in a preschool or a day care program operated by a school. K.S.A. 72-5211a
permits school districts to adopt policies, in conformance with K.S.A. 72-5209, to exclude from school any student,
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enrolling in Kansas for the first time, who has not presented documentation of immunization. The school district is
not required to provide special education services until the documentation is received.
These State health laws override IDEA, just as they override general education students' constitutional right to attend
school. The school district should advise the student and parents that FAPE is available when the documentation for
compliance with State health laws is received. K.S.A. 72-5211a specifies that the compulsory school attendance law
does not apply to any student excluded from school for failure to document immunization records. Thus, such
students should not be reported as truant. However, State law requires schools to include this information, when
transferring education records to a new school.
6. When a student is in a private school and receives special education services from
the public school, who keeps the student's educational record?
If the student receives special education services through the public school, the public school is responsible for
maintaining the student's educational record. The private school may also have records, or copies of the public
school records, including the student's IEP, if appropriate.
7. What should the school do if during a due process hearing, the parents request a
copy of their child's test protocol?
According to the US Department of Education, under FERPA parents have the right to inspect test protocols, which
may include a right to copy them if ordered by a special education due process hearing officer or a judge in a hearing.
Due to concerns about violating the test publisher's copyright rules, the school may want to consult with their
attorney. However, schools are required to provide copies of the records if failure to provide those copies would
effectively prevent the parent from exercising the right to inspect and review the records (34 C.F.R. 300.613(b)(2)).
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CHAPTER 10
MEDIATION
INTRODUCTION
Mediation is one of three formal methods of resolving disputes in special education at the local level. Other methods
are formal complaint, which is discussed in Chapter 11, and due process hearing, which is discussed in Chapter 12.
To begin the process of mediation, both parties must agree to mediate. Either the parents or a school representative
may suggest this option initially by asking the other party if they are willing to mediate the disputed issues. The cost
of mediation is borne by the State; there are no costs to either the parents or the local school district.
The use of mediation can have the following benefits over a formal complaint or due process hearing:
•
Mediation uses the strengths of both participants to solve problems.
•
Because it is voluntary throughout the process, and because a mediator has no authority to order any
particular resolution, mediation is a safe way for both parties to offer and consider alternatives.
•
Mediation can be less antagonistic.
•
Mediation is less time consuming.
•
Mediation is less costly for both parties.
•
If an agreement is reached, it is written and committed to by the parties, themselves, rather than ordered by
a hearing officer or the Kansas State Department of Education.
•
A negotiated agreement may help with future positive relationships.
Forms to request mediation should available in each school district. The building administrator, special education
director, or the Mediation consultant at Special Education Services may be contacted for the forms. Copies of these
forms are included in Appendix A. Figure 10-2 is the Request for Mediation, Figure 10-3 is the Agreement to Mediate,
and Figure 10-4 is the Confidentiality Pledge, Timeline for Mediation Figure 10-5, and sample Rules of Mediation,
Figure 10-6. All forms can be found on
www.kansped.org
.
Each of the following topics in the State mediation process is discussed within this chapter:
A. Mediation Process
B. Mediation Requests
C. Mediation Participants
D. Special Education Mediators
E. Mediation Results
A. MEDIATION PROCESS
The Kansas State Department of Education (KSDE) has established mediation procedures to allow school districts
and parents to resolve any matter regarding special education, including matters arising prior to the filing of a due
process complaint. State statute, at K.S.A. 72-996, and State regulations at K.A.R. 91-40-28, and 91-40-29 set up
the following provisions for special education mediation in Kansas:
•
The mediation process is voluntary for both the parents and the school.
•
Mediation may not be used to deny or delay a parent’s right to a due process hearing, or any other parent
right.
•
Mediation is conducted by a qualified, impartial mediator who is trained in effective mediation techniques.
•
KSDE maintains a list of qualified mediators and appoints the special education mediator.
•
KSDE is responsible for the costs of mediation.
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•
Mediation must be provided in a timely manner and at a location that is convenient for both parties in the
dispute.
•
Agreements reached during mediation must be in writing and must include the resolution of each issue for
which agreement was reached. Every mediation agreement must also include a statement that:
o
Discussions during mediation must be kept confidential and may not be used as evidence in any
subsequent due process hearings or civil proceedings;
o
Each party understands that the agreement is legally binding upon them; and
o
The agreement may be enforced in state or federal court.
The goal of the parties in mediation is to reach an agreement that is workable for all. If an agreement is reached it is
put in written form by the mediator and signed by both parties. If issues prove to be irresolvable, the mediator will
declare that an impasse has been reached and the mediation will be terminated. Figure 10-1 in Appendix A is a flow
chart showing the steps involved in the mediation process.
B. MEDIATION REQUESTS
When parents or school personnel disagree about a special education issue, either party may request mediation.
However, both parties must agree to use this process. Therefore, the first step in initiating a special education
mediation is to ask the other party if it is willing to mediate the disputed issue. Mediation may be requested even if a
due process hearing has been filed. This is one reason that the timeline for mediation is short. Mediation must be
completed within the due process timeline, and mediation may not be used to delay the parents' right to due process.
However, the due process hearing timeline may be extended by the due process hearing officer for a specific period
of time during the mediation process if requested by the parties (34 C.F.R. 300.515(c)). Mediation is often viewed as
a win-win situation, a positive process that may often avoid potential litigation. At a minimum, mediation must be
available to resolve disputes relating to the following issues:
1. Identification,
2. Evaluation,
3. Placement, and
4. Provision of a free appropriate public education to the child.
Once both parties agree to mediation, they must complete and sign the three required forms, which are faxed and/or
mailed to the mediation consultant at the Kansas State Department of Education (KSDE Special Education Services,
120 SE 10
th
Avenue, Topeka, KS 66612; fax 785-296-6715).
(1) Agreement to Mediate
: This one-page form indicates that both parties: (a) understand that mediation is
voluntary; (b) agree to enter into mediation; (c) agree to abide by the procedures and guidelines for special
education mediations; (d) agree not to record (electronically or otherwise) a mediation session; (e) agree that the
mediator will not make decisions regarding the disputed issues; and (f) understand that agreements must be in
writing and are legally binding and enforceable in a state or federal court. Each party must sign this agreement;
(2) Confidentiality Pledge
: This one page form indicates that both parties: (a) understand and agree that
discussions during mediation are confidential; (b) agree not to call the mediator or anyone associated with the
mediator as a witness in any judicial, administrative or arbitration proceeding regarding the mediated dispute; (c)
agree not to subpoena or demand the production of any records, notes, work product or other written information
of the mediator; (d) agree that if a party does subpoena a mediator or a mediators records, the mediator will
contest the subpoena and the requesting party agrees to reimburse the mediator for all expenses related to
contesting the subpoena, including attorney fees plus the mediator’s hourly rate; and
(3) Request for Mediation
: This one-page form includes contact information for use by the mediator. The
contact information consists of the name, address, and phone number of the parties, the name and birth date of
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the student and whether or not a due process hearing has also been requested. This form also asks the parties
to agree on some preferred dates for which they are both available to mediate. If the parties list some preferred
dates on this form, the KSDE will attempt to find a mediator who is available on one of those dates. The preferred
dates should be at least seven to ten days after the date of the request for mediation so that the Kansas State
Department of Education (KSDE) has time to appoint a mediator and allow the mediator to arrange for a
mediation session. If a mediation session is needed more quickly, the parties may request an earlier date by
telephone and send the mediation forms to the KSDE electronically. The KSDE will attempt to accommodate all
requests.
When KSDE receives a request for a special education mediation, the mediation coordinator immediately appoints a
mediator. The mediator notifies both parties and arranges for mediation. The location must be convenient to the
parties and should be acceptable to everyone. A neutral location is preferred. If the mediator is not familiar with
neutral locations in the area where the mediation will be, she/he will usually ask the school representative for
suggestions (such as a room in a county courthouse or public library). In some cases where neutral sites are not
readily available, mediations can be held on school property.
C. MEDIATION PARTICIPANTS
Mediation is an informal process that includes discussion of the issues and proposed resolutions. Generally,
discussions include the mediator, the parents, and a school representative. The school representative is often not
from the IEP Team, because this group has not been able to reach agreement. Mediation seems to be more
successful if the school representative is someone else who is knowledgeable about the issues and has decision
making authority.
Generally, the likelihood of reaching an agreement is enhanced by keeping the number of participants to a minimum.
However, either the parents or the school representative may ask an outside advocate to attend. If the parents are
not able to participate fully and need assistance (because of reasons such as not speaking English, having a disability
themselves, or not fully understanding the issues or procedures), the parents may wish to have an advocate to assist
them.
In Kansas, attorneys are allowed to participate in special education mediations. However, mediations generally prove
to be more successful when the parties work on their own, without attorneys present. Ultimately, because mediation
is a voluntary process, any party that objects to the presence of an attorney may withdraw from the mediation. If for
some reason, attorneys or advocates become involved in a mediation session, the mediator will establish ground
rules for the participation of advocates or attorneys, again in an effort to ensure that discussions are between the
parties to the dispute.
D. SPECIAL EDUCATION MEDIATORS
In Kansas, in order to be considered trained and qualified, mediators must fulfill two requirements:
1. Demonstrate competency in special education law by successfully passing a written examination with at
least 90 percent accuracy (a special education law class sponsored or approved by the state board is
conducted periodically to help mediators with this requirement); and
2. Complete a program sponsored or approved by the state board concerning effective mediation techniques
and procedures, and the role and responsibilities of a mediator (K.A.R. 91-40-29(a)).
After initially qualifying as a mediator, Kansas requires that to remain eligible, special education mediators must have
continuing education program in special education law conducted or approved by KSDE (K.A.R. 91-40-29(c)).
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Employees of KSDE, local schools or other education agencies, or school boards may not serve as a mediator for
special education disputes in the State of Kansas. Others who have a real or perceived conflict of interest may also
not serve as special education mediators. Only the Kansas State Department of Education may appoint special
education mediators.
E. MEDIATION RESULTS
During mediation, the mediator will work with both parties to reach an agreement. If mediation discussions result in
both parties' reaching agreement, the mediator records the results in a written mediation agreement, which is signed
by both parties. When the issues in mediation involve IEP decisions, the mediation agreement may become part of
the student’s IEP if agreed to by the parties. It is not necessary for the IEP team to meet because the decisions are
enforceable and have been made during the mediation with the responsible parties involved (the parents and the
school representative). The actions agreed upon in the mediation should be implemented immediately, unless the
mediation agreement specifies otherwise.
If the IEP is changed by adding the mediation agreement, the IEP team may write a new IEP or amend the existing
IEP to reflect the mediation agreement. The school is responsible for following up with the required notice and
consent forms. The revised IEP is then implemented. If the mediation agreement is not part of the IEP the school
must ensure that any person responsible for implementing the agreement is informed of their responsibilities.
However, if the mediation is not successful, the mediator may declare that the mediation is at impasse and suggest
that both parties consider other methods for dispute resolution, such as Formal Complaint (Chapter 11) and/or Due
Process (Chapter 12).
State Statute:
K.S.A. 72-996
(a) The state board shall establish and implement procedures to allow agencies and parents to resolve disputes through a mediation process
which, at a minimum, shall be available whenever a due process hearing is requested under this act.
(b) The procedures adopted shall ensure that the mediation process is:
(1) Voluntary on the part of the parties;
(2) Not used to deny or delay a parent's right to a due process hearing, or to deny any other rights afforded under this act; and
(3) Conducted by a qualified and impartial mediator who is trained in effective mediation techniques.
(c) The state board shall maintain a list of individuals who are qualified mediators and knowledgeable in laws and regulations relating to the
provision of special education and related services and shall establish procedures for the appointment of a mediator to help resolve disputes
between the parties.
(d) The state board shall bear the cost of the mediation process described in subsection (c).
(e) Each session in the mediation process shall be scheduled in a timely manner and shall be held in a location that is convenient to the parties
to the dispute.
(f)
An agreement reached by the parties to the dispute in the mediation process shall be set forth in a written mediation agreement.
(g) Discussions that occur during the mediation process shall be confidential and may not be used as evidence in any subsequent due process
hearings or civil proceedings and the parties to the mediation process may be required to sign a confidentiality pledge prior to the
commencement of such process
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Kansas Regulations:
K.A.R. 91-40-28. Special education mediation and due process hearings.
(a) If a disagreement arises between a parent and an agency concerning the identification, evaluation, or educational placement of the parent’s
exceptional child, or the provision of FAPE to the child, the parent or the agency, or both, may request mediation or initiate a due process
hearing.
(b) (1) If mediation is requested by either party, the provisions of K.S.A. 72-996 and amendments thereto shall be followed, together with the
requirement in paragraph (2) of this subsection.
(2) When agreement is reached to mediate, the agency shall immediately contact the state board or its designee. A mediator shall be
appointed by the state board from its list of qualified mediators, based upon a random or other impartial basis.
(c) If a disagreement as described in subsection (a) arises, the parent or the agency, or both, may initiate a special education due process hearing
by filing a due process complaint notice. Each due process hearing shall be provided for by the agency directly responsible for the education of
the child.
(d)(1) If a special education due process complaint notice is filed, the provisions of K.S.A. 72-972a through 72-975 and amendments thereto
shall be followed, together with the requirements in this subsection.
(2) Not more than five business days after a due process complaint notice is received, the agency providing for the hearing shall furnish
to the parent the following information:
(A) The agency’s list of qualified due process hearing officers;
(B) written notification that the parent has the right to disqualify any or all of the hearing officers on the agency’s list and to request
that the state board appoint the hearing officer; and
(C) written notification that the parent has the right, within five days after the parent receives the list, to advise the agency of any
hearing officer or officers that the parent chooses to disqualify.
(3) (A) If a parent chooses to disqualify any or all of the agency’s hearing officers, the parent, within five days of receiving the list,
shall notify the agency of the officer or officers disqualified by the parent.
(B) An agency may appoint from its list any hearing officer who has not been disqualified by the parent.
(4) Not more than three business days after being notified that a parent has disqualified all of the hearing officers on its list, an agency
shall contact the state board and request the state board to appoint a hearing officer. In making this request, the agency shall advise the
state board of the following information:
(A) The name and address of the parent;
(B) the name and address of the attorney, if any, representing the parent, if known to the agency; and
(C) the names of the agency’s hearing officers who were disqualified by the parent.
(5) Within three business days of receiving a request to appoint a hearing officer, the parent and agency shall be provided written notice
by the state board of the hearing officer appointed by the state board.
(e) If a due process hearing is requested by a parent or an agency, the agency shall provide written notice to the state board of that action. The
notice shall be provided within five business days of the date the due process hearing is requested.
(f) (1) Unless the agency and parent have agreed to waive a resolution meeting or to engage in mediation, the agency and parent shall participate
in a resolution meeting as required by K.S.A. 72-973 and amendments thereto. The parent and agency shall determine which members of the
IEP team will attend the meeting.
(2) If a parent who files a due process complaint fails to participate in a resolution meeting for which the agency has made reasonable
efforts to give the parent notice, the timelines to complete the resolution process and begin the due process hearing shall be delayed until
the parent attends a resolution meeting or the agency, at the end of the 30-day resolution period, requests the hearing officer to dismiss the
due process complaint.
(3) If an agency fails to hold a resolution meeting within 15 days of receiving a due process complaint or to participate in a meeting, the
parent may request the hearing officer to begin the due process hearing and commence the 45-day timeline for its completion.
(g) The 45-day timeline for completion of a due process hearing shall start on the day after one of the following events occurs:
(1) Both parties to the due process proceedings agree, in writing, to waive the resolution meeting.
(2) The parties participate in a resolution meeting or in mediation but agree, in writing, that resolution of their dispute is not possible by t
he end of the 30-day resolution period.
(3) Both parties agreed, in writing, to continue to engage in mediation beyond the end of the 30-day resolution period, but later one or
both of the parties withdraw from the mediation process.
K.A.R. 91-40-29. Qualifications of special education mediators and due process hearing officers.
(a) To initially qualify as a special education mediator, a person shall meet the following requirements:
(1) Have passed a written examination prescribed by the state board concerning special education laws and regulations; and
(2) have completed a program sponsored or approved by the state board concerning effective mediation techniques and procedures, and
the role and responsibilities of a mediator.
(b) (1) Except as otherwise provided in paragraph (2) of this subsection, to initially qualify as a special education due process hearing officer or
review officer, a person shall meet the following requirements:
(A) Be a licensed attorney in good standing with the licensing agency in the state in which the person is licensed to practice law;
(B) have passed a written examination prescribed by the state board concerning special education laws and regulations;
(C) have completed a program sponsored or approved by the state board concerning due process hearing procedures and the role and
responsibilities of a due process hearing officer; and
(D) have passed a written examination prescribed by the state board concerning due process proceedings.
(2) Each person who is on the list of qualified due process hearing officers maintained by the state board shall remain eligible to serve
as a due process hearing officer or review officer
, if the person the continuing education programs in special education law that are
conducted or approved by the state board.
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QUESTIONS AND ANSWERS ABOUT MEDIATION
1. How are mediators selected to conduct a special education mediation?
The mediation coordinator at the Kansas State Department of Education chooses a mediator on a random basis
from a list of trained and qualified mediators. Mediators will have successfully completed a training program
designed for special education mediators.
2. What are the qualifications of a special education mediator?
The mediator will:
•
Have received formal training in the mediation process and in Federal and State laws and regulations
regarding special education;
•
Be on an approved list of qualified mediators at KSDE;
•
Have no personal or professional interest that would conflict with his/her objectivity;
•
Have no prior involvement in any decisions regarding the student's identification, evaluation, special
education program, or educational placement;
•
Be professional, impartial; and
•
Be able to complete the required duties and responsibilities.
3. What is the role of the mediator?
The mediator helps the parents and school representative clarify issues in disagreement and find solutions that
satisfy both parties. The mediator serves as:
•
Convener--by contacting the parties to arrange for the mediation.
•
Educator--by informing the parties about the mediation process and other conflict resolution procedures
including due process hearings.
•
Communicator and Facilitator--by using strategies to be certain that each party is fully heard in the
mediation.
•
Translator--by replacing or reframing communication so that both parties are understood and received.
•
Questioner and Clarifier--by probing issues and confirming understandings.
•
Process Advisor--by suggesting procedures for making progress in mediation including caucus meetings and
consultations with others.
•
Catalyst--by offering options for consideration, stimulating new perspectives, and offering ideas for
consideration.
•
Closer--by reducing the agreement to writing and obtaining signatures of both parties.
4. How long does mediation take?
Many mediation sessions have been successfully completed in half a day. The mediator will determine whether
progress is being made or whether additional time is needed for resolution.
5. Is special education mediation binding?
If both parties sign the mediation agreement, it is binding on both parties, and is enforceable in a State or Federal
court. The rules of mediation (Figure 10-6) state that the success of the written agreement depends on good
faith efforts of both parties.
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6. When can mediation be requested?
Mediation can be requested when it is believed that an impasse has been reached at the local level on any
matter involving the identification, evaluation, placement, or the provision of a free appropriate public education to
the child. Either the parents or the school representative should discuss with the other party if mediation is an
option, and
should ask for mediation as early as possible. Mediation can occur before or after a special
education due process hearing has been requested or when a hearing concerning an interim alternative
educational placement is being considered. Mediation cannot be used to deny or delay an impartial special
education due process hearing once it has been requested.
7. Who should I call for information or to request mediation?
Information or forms may be requested from a building administrator, special education director, Families
Together (800-264-6343), or The Disability Rights Center of Kansas (785-273-9661). You may also contact the
mediation coordinator on the Special Education Services Team of the Kansas State Department of Education.
Address: 120 SE Tenth Avenue, Topeka, KS 66612-1182
Phone: 800-203-9462 or 785-296-5478
Fax:
785-296-6715
Email:
mward@ksde.org
8. How soon is mediation scheduled after the parties request it?
A mediation conference should be scheduled as soon as possible after receiving a request for a mediation
conference. Some flexibility is permitted to accommodate availability of both parties. The meeting must be in a
place that is convenient for both parties. On the Mediation Request Form, the parties should request specific
dates and times when both parties are available. This should allow a reasonable period of time for the selection
of a mediator and for the mediator to set up a mediation session. Two weeks is usually enough time to
accommodate such a request. One of the reasons time is so critical is that mediation may be requested even if a
special education due process hearing has been filed, but the mediation process may not delay the parents' right
to due process.
9. Who pays for mediation?
The fee and expenses for the mediator, if any, are paid by Special Education Services at the Kansas State
Department of Education. Mediation is available at no cost to the school or the parents.
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CHAPTER 11
FORMAL COMPLAINT
INTRODUCTION
Formal complaint is one of the methods parents or others have to resolve special education disagreements with the
school district. Although most differences are successfully resolved at the local level, three state processes are
available to parents, if they are at impasse with the school district:
•
Formal complaint,
•
Mediation (Chapter 10), and
•
Due process hearing (Chapter 12).
Formal complaint is one of the parent rights (procedural safeguards, see Chapter 1) afforded under Federal and
State regulations (K.A.R. 91-40-51; 34 C.F.R. 300.151). The Kansas State Department of Education (KSDE) is
mandated to make available an opportunity for individuals or organizations to file formal complaints against the
school. Figure 11-1 in Appendix A is a flow chart that illustrates the steps in the process, and Figure 11-2 lists the
timelines and responsible parties for the required steps.
For information about the formal complaint process, contact Families Together (800-264-6343), Kansas Disability
Rights Center (877-776-1541), or Special Education Services at the KSDE (800-203-9462). See Figure 11-3 for the
Formal Complaint form as well as the Special Education Services home page
www.kansped.org
.
This chapter outlines the steps involved in the formal complaint process:
A. Filing a Formal Complaint
B. Investigating the Complaint
C. Following Up on the Complaint
D. Appealing the Decision
E. Sanctions by the State Board of Education
A. FILING A FORMAL COMPLAINT
Any individual or organization may file a formal complaint if they believe that the school district is not complying with
Federal or State laws or regulations relating to special education. The formal complaint must be for a situation that
occurred during the past year.
The formal complaint must be in writing and signed by the person or organization making the complaint. The
complaint must state that the school is not complying with the requirements of IDEA, the State Special Education for
Exceptional Children Act, or the corresponding Federal or State regulations and give the facts upon which the
statement is based. When the complaint involves a specific child, the complaint must also include the following:
The child’s name and address of residence, or other contact information if the child is a homeless child or youth;
the name of the school the child is attending;
a description of the problem involving the child; and
a proposed resolution to the problem, if a possible resolution is known and available to the complainant.
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The party filing the complaint must forward a copy of the complaint to the school against which the allegations are
made at the same time the complaint is filed with the commissioner of education.
The parent of any child with an exceptionality (disabilities and giftedness) including eligible students receiving
services in public schools, private schools and other educational settings are entitled to file a formal complaint if they
believe appropriate legal procedures have not been followed or implemented.
If a formal complaint is received that is part of a due process hearing, or the complaint contains multiple issues of
which one or more are part of such a hearing, the State must set aside the State complaint, or any part of the
complaint that is being addressed in the due process hearing until the hearing is over. Any issue in the State
complaint that is not a part of the due process hearing must be resolved through the State process.
Figure 11-3 in Appendix A is the form that is used to file a formal complaint. This form may be faxed to the Team
Leader, Special Education Services Team (785-296-6715), but the original must then be mailed to the Kansas State
Department of Education, Special Education Services, 120 SE Tenth Avenue, Topeka, KS 66612. Additionally, a
copy of this completed form must be sent to the school district against which the complaint is filed.
B. INVESTIGATING THE COMPLAINT
The Special Education Services Team at the Kansas State Department of Education must resolve a formal complaint
within 30 calendar days from the date the complaint is received in the office, unless exceptional circumstances exist.
When a formal complaint is received a letter acknowledging receipt of the formal complaint is sent to the person
making the complaint, the special education director, and the superintendent. A copy of the formal complaint is
attached with the letter to the special education director and the superintendent.
The complaint investigator will contact the person making the complaint and the special education director to clarify the
issue(s), review all relevant records and documents, and determine whether or not the facts stated in the complaint are
correct and, if so, whether they substantiate a violation of the requirements of special education laws or regulations.
The investigator will contact the agency against which the complaint is filed to allow the agency to respond to the
complaint with facts and information supporting its position,
offer a proposal to resolve the complaint
, or offer to
engage in mediation to resolve the complaint. Both parties can provide additional information to the investigator that
is relevant to the issue. Neither party can introduce a new issue during the investigation.
After the investigation, the complaint investigator writes a report of the findings addressing each of the allegations in
the complaint and which contains: (a) findings of fact and conclusions; (b) the reasons for KSDE’s final decision; and
(c) any corrective action or actions that are required including the time period within which each action is to be taken.
The report is to be sent to the parties within 30 days of the receipt of the complaint unless the parties agree to extend
the 30 day timeline to engage in mediation.
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C. FOLLOW UP ON THE COMPLAINT
If the report from the formal complaint requires corrective actions, the school shall, within 10 calendar days of the
date of the report, submit one of the following to the KSDE Special Education Services Team:
1. Documentation to verify it accepts the corrective action(s) in the report, if any;
2. A written request for more time to complete the required action(s), with justification for this request; or
3. A written notice of appeal.
If the district asks for more time to complete one or more of the required corrective actions, a review committee of at
least three people at KSDE are appointed by the Commissioner to review the request and the justification for an
extension. The committee shall make a decision regarding the request within five business days of the date that the
request was received, and their decision is final. If the school fails to respond to a report within the time allowed
sanctions may be invoked.
When the corrective actions are completed by the school, the Special Education Services Team sends a notice of
completion to the school with a copy to the person making the complaint. At that point, the complaint file is closed.
D. APPEALING THE DECISION
After the person making the complaint and the school receive the written report of findings, each has 10 calendar
days from the date of the report to file an appeal. Each notice of appeal shall provide a detailed statement of the
basis for alleging that the report is incorrect.
The following steps are followed for appeals:
1. An appeal committee of at least three KSDE members shall be appointed by the Commissioner to review
the report and to consider information provided by the school, the complainant, or others.
2. The hearing process, including any hearing conducted by the appeal committee, shall be completed within
15 days from the date of receipt of the appeal notice.
3. A decision shall be rendered within five days after the appeal process is completed, unless the appeal
committee determines that exceptional circumstances exist. Then the decision shall be rendered as soon
as possible.
If the person making the complaint or the school does not appeal the decision and no corrective actions are required,
the complaint file is closed.
E. SANCTIONS BY THE STATE BOARD OF EDUCATION
The Kansas State Board of Education has sanctions available if corrective action required by a formal complaint
investigation is not implemented. Additionally, if an appeal committee affirms a compliance report that requires
corrective action by a school, that district must initiate the required corrective action immediately. If after five days,
no required corrective action has been initiated, the school district will be notified of the action that will be taken to
assure compliance as determined by the department. This action may include any of the following:
•
the issuance of an accreditation deficiency advisement;
•
the withholding of state or federal funds otherwise available to the agency;
•
the award of monetary reimbursement to the complainant; or
•
any combination of the above actions.
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Kansas Regulations:
K.A.R. 91-40-51. Filing complaints with the state department of education
. (a) Any person or organization may file a written, signed
complaint alleging that an agency has violated a state or federal special education law or regulation. Also, a prevailing party in a due process
hearing may file a complaint alleging that the other party has failed to implement the hearing decision. The complaint shall include the following
information:
(1) A statement that the agency has violated a requirement of state or federal special education laws or regulations;
(2) the facts on which the statement is based;
(3) the signature of and contact information for the complainant; and
(4) if the complaint involves a specific child, the following information:
(A) The child's name and address of residence, or other contact information if the child is a homeless child or youth;
(B) the name of the school the child is attending;
(C) a description of the problem involving the child; and
(D) a proposed resolution to the problem, if a possible resolution is known and available to the complainant.
(b)(1) The complaint shall allege a violation that occurred not more than one year before the date the complaint is received and shall be filed with
the commissioner of education.
(2) The party filing the complaint shall forward a copy of the complaint to the agency against which the allegations are made at the same
time the complaint is filed with the commissioner of education.
(c) Upon receipt of a complaint, an investigation shall be initiated. At a minimum, each investigation shall include the following:
(1) A discussion with the complainant during which additional information may be gathered and specific allegations of noncompliance
identified, verified, and recorded;
(2) contact with the agency against which the complaint is filed to allow the agency to respond to the complaint with facts and information
supporting its position, offer a proposal to resolve the complaint, or offer to engage in mediation to resolve the complaint; and
(3) a written report of findings of fact and conclusions, including reasons for the decision, and any corrective action or actions that are
required, including the time period within which each action is to be taken. Unless the parent and the agency agree to engage in mediation,
this report shall be sent to the parties within 30 days of the receipt of the complaint. If the parties mediate but fail to resolve the issues, the
report shall be sent 30 days after the department received notice that mediation has failed.
(d) An on-site investigation may be conducted before issuing a report.
(e)(1) If a report requires corrective action by an agency, that agency, within 10 days of the date of the report, shall submit to the state director of
special education one of the following:
(A) Documentation to verify acceptance of the corrective action or actions specified in the report;
(B) a written request for an extension of time within which to complete one or more of the corrective actions specified in the report, together
with justification for the request; or
(C) a written notice of appeal. Each appeal shall be made in accordance with subsection (f).
(2) If an agency files a request for an extension of time within which to complete one or more corrective actions required in a report, a
review committee of at least three department of education members shall be appointed by the commissioner to review the request and the
offered justification for the extension of time. A decision on the request shall be made by the committee within five business days of the
date the request was received. The decision of the review committee shall be final.
(3) If a local education agency fails to respond to a report within the time allowed, the sanctions listed in paragraph (f) (2)
