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 fo
