Clarifying the Special Education Process May Help Participants Avoid Confusion and Conflict

by Ron Greiner, Office of Special Education and Early Intervention Services (OSE/EIS)

Editors Note: This article originally appeared in the October 2002 issue of Newsline. The OSE/EIS is providing information in this feature with a reminder that each due process hearing decision and each complaint investigation decision is based solely on factual circumstances, as presented in individual cases. Specific cases presented here should not be the basis of generalizations about dispute resolution.

Consent, Written Notice, and Procedural Safeguards: When They Must Be Provided
Several intermediate school district (ISD) and Office of Special Education and Early Intervention Services (OSE/EIS) investigation reports have addressed complaints related to "parental consent," "written notice," and "procedural safeguards notice." During the investigations of these complaints, it became clear that some parents and school districts were confused about the precise meaning of these terms. School districts are confused about the occasions when parental consent, written notice, and procedural safeguards notice are required by the district. Parents are confused about when they must provide parental consent and when they have a right to receive written notice and procedural safeguards notice.

Generally, disagreements and confusion in these complaints (about parental consent, written notice, and procedural safeguard notice) come down to four specific questions:

1. What is parent consent and when must a district obtain parent consent in writing?
2. What is written notice and when must the district provide a parent with such notice?
3. How do procedural safeguards and parent rights relate to written notice?
4. What information must be included when the parent receives written notice?

Hopefully, this article makes these processes and requirements clear and understandable.

Examples of Ambiguity, or-Why You're Not the Only One Who's Confused
The ambiguity and confusion that surround these terms comes, somewhat, from the regulations themselves. The actual terms used in the regulations include: procedural safeguards, written notice, and parental consent, which are not immediately clear on a first reading. The terms are very technical. In addition, the regulations use similar words to describe different processes. For references to examples where the terms "notice," "notified," and "notification" may be confusing within the regulations, see the footnote at the end of this article.

Background on the Confusion, or-Why It's Nobody's Fault
Before trying to understand what specific terms mean, it may be helpful to clarify some basic perspectives within the laws and regulations that the special education system is built upon. Within the special education legal system there are basically two important parties: the family and the district. Based on parents' advocacy, legislators have assumed the parents' perspective-namely, that parents of students with special needs know their children best, and school personnel generally do not know them as well. Legislators, knowing that there is a child involved, wanted to establish and maintain a level playing field between parents and school districts. Leveling the playing field required assigning specific rights (including empowerment) to parents and specific responsibilities (including power) to districts.

To legislators, a system that involves power, rights, and responsibilities, must anticipate disagreement and conflict, and must provide processes to resolve conflict. Many of the regulations are designed to identify specific processes to address situations when there is conflict. For those situations when parties are not able to resolve conflict, maintaining a level playing field between parties requires that each party has full knowledge of the steps to resolve conflicts and detailed information about rights at each step. The process for resolving conflict, for simplicity's sake, involves giving parties access to as much information as necessary, and then giving them an equal opportunity to state their case before an impartial hearing officer. If the dispute continues, parties have the American right to resolve the issue in court.

The regulations that describe the processes to resolve conflicts are numerous. The processes for resolving conflicts end up looking fairly legalistic. What must be kept in mind however, is that these processes are used relatively infrequently and only for those few conflicts that parents and districts are unable to resolve. Working together collaboratively does, in fact, work most of the time.

The Special Education Processes in Plain English
The special education process assumes that the parent has special knowledge of and overall responsibility for the child. The school district has overall responsibility to provide an education to the student and employs (or contracts with) people who have knowledge of disabilities. The steps in the special education process can be briefly described, as follows:

• Step 1: If someone suspects a student of having a disability and needing special education services, the initial referral is written and given to the district. The district involves the parents.
  
  
• Step 2: Experts complete initial evaluations of the child, include input from parents, and prepare a Multidisciplinary Evaluation Team (MET) report that summarizes their recommendations. The MET report recommends whether there is evidence of disability and need for special education services.
  
  
• Step 3: The school reviews diagnostic information and the MET report with the parents.
  
  
• Step 4: The two parties meet at an Individualized Education Planning Team (IEPT) meeting to decide if a disability exists and if the student needs special education services. The parties document their decision in an Individualized Education Program (IEP). If eligibility and need exist, the parties also use the IEP to identify instructional outcomes, identify how the district will work toward those outcomes, and identify consideration of a variety of factors (e.g., placement in the least restrictive environment (LRE)).
  
  
• Step 5: The district implements the IEP and informs the parents about the student's progress.
  
  
• Step 6: The parties meet at least once yearly to review and revise the IEP.
  
  
• Step 7: At least every three years, the parties re-evaluate disability, need, and overall progress and set future priorities.

Special Education Legal Terms in Plain English
Given the overall process, it's appropriate to define some of the confusing terms identified earlier. Michigan has aligned state regulations with the applicable federal regulations; therefore, the following citations are taken from the final regulations implementing the Individuals with Disabilities Education Act Amendments of 1997.

• Consent, parental consent, written informed consent, informed consent, and informed parent consent mean that the parent knows what the district wants to do, and has agreed to that, in writing [300.500(b)(1)].
• Notice means that one party (typically the district) has informed the other party (typically the parents) about something; notice can be oral or written [Section 300.561, 300.507(c)(1)].
• Written notice generally refers to the very detailed information the district must provide to the parent, including what the district proposes to do for the student. This information to parents also identifies resources for parents if they have any questions. As the term states, the information must be in writing [Section 300.503(b)]. Prior notice means prior written notice and refers to those times when the district must provide this written notice to the parent before the district proposes any specific action involving the child [Section 300.503(a)].
• Procedural safeguards refers to the legal rights parents have [Section 300.504(b)]. Procedural safeguards notice refers to documents that identify all of the procedural safeguards [Sections 300.403, 300.500-300.529, 300.560-300.577, and 300.660-300.662].
• Rights and the parent's rights are general terms that people often use to refer to the more legal-sounding written notice and procedural safeguards.

Bringing the Processes and Terms Together in Plain English
Using the numbering system and description of the process described above (Steps 1-7), here is a review of what has to happen and when each event should take place:

• Step 1: The district must let parents know, in writing, that someone suspects a disability and the district proposes to evaluate the child. At the same time, the district must also give the parent prior written notice that describes what the district proposes to do and a copy of the procedural safeguards. Typically, the district gives the parent a copy of the "Parent Handbook" developed by the intermediate school district. This document often describes information and processes in language that is easy to understand. The district cannot act on the referral until the parent consents, in writing, that she/he agrees to the district's proposal and has been informed of his/her rights.
  
  
• Step 2: The student is evaluated. The evaluation can be directly completed by district staff, by evaluators with whom the district contracts, or by an evaluator to whom the parties mutually agree. School personnel complete a MET report that reflects parent input.
  
  
• Step 3: District personnel contact the student's parents to review evaluations and the MET report (this is often done during Step 4).
  
  
• Step 4: The parties schedule an initial IEPT meeting. The district must schedule this meeting at a time when parents can attend and must inform parents that the meeting will occur. (Although parent attendance is strongly encouraged, parent attendance is not an absolute requirement.) At the IEPT meeting, the team makes a decision about eligibility and need and documents its decision in an initial IEP. At the end of Step 4, the district must again inform parents in writing, about the district's decision. The district must again give the parents prior written notice describing what the district proposes or wants to do (this is typically a copy of the initial IEP itself and a copy of the procedural safeguards). The district cannot act on this decision until the parents consent, in writing, that they have been informed of rights and agree to the district's proposal.
  
  
• Step 5: Assuming that the parents provide written consent, the district begins to implement the IEP. The district must inform the parents about the student's progress on goals and objectives.
  
  
• Step 6: The IEPT meets (at least once per year, but more often if needed) to review the student's progress and revise the IEP. The district must inform the parents of this meeting and make efforts to involve them. After completing the IEP, the district must provide the parents with prior written notice that describes what the district wants to do (again, this is typically a copy of the IEP and a copy of the procedural safeguards). However, unlike Step 4, this is not an initial IEP and, under most circumstances, the district does not need parental consent to implement the IEP.
  
  
• Step 7: If the district thinks no new assessment or re-evaluation is needed, the district must inform the parents in writing. If the parents think additional assessments or a re-evaluation would be helpful, the parents must inform the district. If the district wants to conduct additional assessments, the district must get prior written consent from the parents. After completing any evaluation activity, the district must again invite the parents to attend an IEPT meeting to review the previous IEP, update the diagnostic information if needed, and revise the IEP. After completing the IEP, the district must again provide the parents with prior written notice (describing what the district wants to do and providing a copy of the procedural safeguards). Under most circumstances, the district does not need to request parent consent to implement the IEP.

Some Additional Points
The above discussion refers to events that should occur when the district provides written notice to parents indicating that the district proposes to begin a specific activity involving a child (e.g., begin a special education evaluation on a child, begin to provide a special education related service, begin to provide a special education program, or change an annual goal). The regulations also speak to events when the written notice would identify that the district might refuse a specific action. Although examples of events when a district refuses are much less frequent than when a district proposes, they do exist (e.g., when the IEPT rejects some LRE options it is, in fact, refusing those options).

If anyone involved with the student thinks that the IEP should be revised, that person should inform the district in writing (this is also a referral, but not an initial referral). The district must convene an IEPT meeting, as outlined in Step 6. If parents disagree with the district's evaluations, they can request an independent educational evaluation (IEE). If parents disagree with any decision identified in an IEP, they may request a due process hearing. If parents request a due process hearing, the district must provide them with a copy of their "procedural safeguards."

The Rest of the Story
In one set of complaints that were filed, the complainants alleged that the districts did not provide them with written notice and information on procedural safeguards when the districts scheduled IEPT meetings. The OSE/EIS ruled there were no violations because districts were not required to provide that information when scheduling the IEPT meetings.

In another set of complaints, the complainants alleged that districts did not provide parents with written notice and "procedural safeguards" following the IEPT meetings. The OSE/EIS ruled that the involved districts provided prior written notice and procedural safeguards to the parents when inviting the parents to the IEPT meeting, but did not provide these after completing the IEPs. The OSE/EIS found these districts in violation and ordered them to revise their processes for providing written notice and procedural safeguards.

In a third set of complaints, the OSE/EIS concluded violations because districts provided the parent with written notice (i.e., a copy of the IEP) but did not offer them a copy of their procedural safeguards following the IEPT meeting.

For more information, contact:
Ron Greiner
Office of Special Education and Early Intervention Services
P.O. Box 30008
Lansing, MI 48909
(517) 335-0461
(517) 373-7504 fax
GreinerR@michigan.gov

Editor's note: Examples where language in the Rules may cause confusion: 340.1721(1), 340.1721b(6), 340.1722a(2)(3)(4), 340.1723a, 340.1723b, 340.1723c(2)(e), 340.1724(1)(9), 340.1725(2)(g), 340.1725d, 340.1757(b), 340.1823 Part 1. Section 1.1(2), 340.1837(2), 340.1838(5)(c), and 340.1869(a)

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