SES Fall 2015: Exiting Students from Special Education
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Transcript of SES Fall 2015: Exiting Students from Special Education
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What’s On the Agenda . . . Exiting from Special Education
Based on Decision that StudentNo Longer Meets Eligibility Criteria
Exiting from Special EducationThrough Automatic Termination of Eligibility
Exit from Special Education By Parental Revocation of Consent
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I. Exiting from Special Education
Based on Decision that StudentNo Longer Meets Eligibility
Criteria
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Procedural Requirements – Assessment Before student may be found to be no longer
eligible for special education, district must reassess in all areas of suspected disability, not merely in disability for which he or she was initially determined to be eligible
Same basic requirements for initial assessments apply to reassessments
(34 C.F.R. §300.303; Ed. Code, §§56026, 56381)
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Procedural Requirements – Assessment Assessment process is:
Collection of information Variety of sources
Compilation of that informationAnalysis of that informationConclusions based on that analysis
Eligibility, strengths, academic and functional levels, needs
Documented into IEP
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Procedural Requirements – Assessment Conducting the assessment
Use a variety of assessment tools and strategies Gather relevant functional and developmental
information Include information provided by the parent Include information related to enabling the student to
be involved in and progress in the general curriculum To determine:
Whether the student continues to qualify as a student with a disability; and, if so,
The content of, or revisions to, the student’s IEP (34 C.F.R.§§300.303-300.306; Ed. Code, §§56320, 56381)
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Procedural Requirements – Assessment Components of every assessment report:
Whether the student may need special education and related services
The basis for making the determination The relevant behavior noted during
the observation of the student in an appropriate setting
The relationship of that behavior to the student’s academic and social functioning
The educationally relevant health and development, and medical findings, if any
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Procedural Requirements – Assessment Components of every assessment report
(cont’d): For students with learning disabilities, whether there is
such a discrepancy between achievement and ability that it cannot be corrected without special education and related services
A determination concerning the effects of environmental, cultural, or economic disadvantage, where appropriate
The need for specialized services, materials, and equipment for pupils with low incidence disabilities
Report must be provided to parents at IEP meeting
(Ed. Code, §§56327, 56329)
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Procedural Requirements – Assessment When making exiting decisions, continued
eligibility is key component of assessment report summary List the Criteria: Include the list of eligibility factors for
all suspected disabilities and, for each factor, state why the student does or does not meet the criterion
Need for Special Education: Remember that even if a student meets the eligibility criteria for a suspected disability, the student remains eligible only if he or she continues to need special education and related services to gain educational benefit
Include a statement of why the student does (or does not) need special education to gain educational benefit and tie this to the curriculum
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Assessment – Case ExampleStanislaus USD (OAH 2013) Facts
District’s triennial assessment concluded that 6-year-old Student was no longer eligible for special education
Student no longer displayed communication deficits she had shown three years earlier
District recommended Student be exited Parents disagreed and requested IEE Parents claimed assessment was inappropriate
because tests were not conducted in Student’s native language (Pashto)
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Assessment – Case ExampleStanislaus USD (OAH 2013) Decision
ALJ denied IEE and allowed District to exit Student Student spoke English proficiently in school Assessment adequately demonstrated Student no
longer met criteria for autism District committed procedural violation by not
analyzing Student’s continued eligibility in assessment report, deferring issue to oral discussion at IEP meeting
But no denial of FAPE (no loss of educational opportunity and school psychologist cured error by providing Parents her opinion on eligibility at IEP meeting)
(Stanislaus Unified School Dist. v. Student (OAH 2013) Case No. 2013050308, 113 LRP 52133)
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Assessment – Case ExampleBrea Olinda USD (OAH 2009) Facts
District proposed exiting 12-year-old Student eligible under OHI category (for ADHD)
Psychoeducational assessment concluded that ADHD diagnosis did not limit strength, vitality or alertness to degree that impaired ability to access curriculum
Parents claimed assessment was deficient and that District did not take into account all available information regarding Student’s ADHD (Parents’ interventions and assistance)
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Assessment – Case ExampleBrea Olinda USD (OAH 2009) Decision
ALJ found in favor of Parents, concluding that exiting decision was in error based on inappropriate assessment
Assessment report did not give sufficient weight to situations in which ADHD appeared to restrict Student’s ability to access education
District also did not assess Student in all areas of suspected disability based on its awareness of his language and social skills difficulties
However, ALJ rejected Parents’ predetermination claim
(Student v. Brea Olinda Unified School Dist. (OAH 2009) Case Nos. 2009050815 and 2009030124,53 IDELR 273)
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Assessment Practice Pointer
Faulty assessments can undermine IEP team’s decision that student no longer meets eligibility requirements
Keep the following in mind:Make sure assessments consider all available
information about student’s performanceEnsure assessments address all suspected areas
of disabilityDon’t forget to examine possible behavior and
social skills deficits (Remember: Adverse effect on educational performance is not limited to classroom)
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Procedural Requirements – IEP Team Meetings and PWN Exiting decisions are made by IEP team at
properly convened meeting Proper notice, which must include purpose of
meeting (e.g., whether student continues to meet eligibility requirements)
Properly constituted IEP team with all necessary members, including individual(s) who can explain and interpret results of assessments
(34 C.F.R.§§300.321, 300.322; Ed. Code, §§56341, 56341.5)
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Predetermination Predetermination occurs when districts
decide on IEP content/issues prior to IEP meeting precluding meaningful parental participation Example: Members of IEP team decide that
student no longer meets eligibility criteria in advance of meeting without parental input
Allegations of predetermination frequently arise with respect to: Preparatory meetings (Lack of) meaningful discussion at IEP meeting
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Prior Written Notice (“PWN”) Because exiting student from special
education is change of placement, proposal to exit requires providing parents PWN
Notice must contain: Description of action proposed Explanation for action Description of assessment procedures used as basis for
action Statement that parents are entitled to procedural
safeguards Sources of assistance for parents to contact Descriptions of other options considered by IEP team Descriptions of factors relevant to proposed action
(34 C.F.R.§300.503(b); Ed. Code,§56500.4)
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Prior Written Notice (“PWN”) PWN must be provided in native language of
parent unless clearly not feasible to do so Verbal notice may not serve as substitute for
PWN, even if it is substantively compliant with legal content requirements
Failure to provide PWN is procedural violation of IDEA
(Union School Dist. v. Smith (9th Cir.) 20 IDELR 987; Marcus I. v. Department of Educ., State of Hawaii (9th Cir. 2014) 114 LRP 32495, unpublished)
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IEP Meetings and PWN – Case ExampleFolsom Cordova USD (OAH 2014) Facts
District proposed to exit Student from special education based on IEP team discussion
Parents disputed decision, claiming recommendation was predetermined
Based on earlier notice of meeting with “check” in box showing that purpose of meeting was to terminate Student from special ed
Parents also claimed District failed to give them PWN prior to meeting
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IEP Meetings and PWN – Case ExampleFolsom Cordova USD (OAH 2014) Decision
ALJ found no predetermination Evidence supported explanation that original
notice was mistake and that there was no advance knowledge that Student would be exited
Assessments supporting exiting decision were not yet completed at time of notice
No evidence that team arrived at exiting recommendation until IEP meeting, so it could not have given Parents PWN in advance
(Student v. Folsom Cordova Unified School Dist. (OAH 2014) Case Nos. 2013040098 and 2013090197, 64 IDELR 190)
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IEP Meetings and PWN – Case ExampleSalinas Union HSD (OAH 2014) Facts
District’s assessments indicated 14-year-old Student with SLD no longer needed special education
District proposed exiting Student at IEP meeting Parent objected and asked for IEEs, which
District subsequently provided IEEs also indicated Student no longer met SLD
criteria District convened another IEP meeting, but
Parent halted meeting and asked that it be reconvened
District could not convince Parent to attend subsequently rescheduled meeting
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IEP Meetings and PWN – Case ExampleSalinas Union HSD (OAH 2014) Decision
ALJ supported District decision to hold rescheduled meeting in Parent’s absence
Only matter left to complete was to mark forms on IEP document that showed Student did not meet eligibility criteria
Previous meeting had established ineligibility Reasonable to hold meeting after good faith
effort to secure Parent’s attendance in order to formally finalize eligibility issue before Student started high school
(Salinas Unified School Dist. v. Student (OAH 2014) Case No. 2013070582, 63 IDELR 176)
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IEP Meetings Practice Pointer
To ensure legally compliant IEP meetings when exiting is being discussed, keep the following in mind:
Ensure all essential team members are present, including assessment personnel
Be careful of statements suggesting “here is what we have decided”
Make sure enough time is allocated for Parents’ questions about effect of exiting Student
List and respond to Parents’ concerns, but data should drive team’s ultimate decision
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Substantive Determinations – Eligibility Overview Two-part eligibility test:
Student must meet definition of one or more of 13 disabilities identified in IDEA; and
Require special education and related services as result of his or her disability or disabilities
If both parts of eligibility test are not met, exiting is appropriate
Let’s look at some cases . . .
(34 C.F.R.§300.8; Ed. Code, §56026, Cal. Code Regs., tit. 5, §3030)
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Autism – Case ExampleRiverside USD (OAH 2007) Facts
Student found eligible under autism category at age 3 and placed in preschool SDC
By kindergarten, he required minimal support Aide was available but Student needed no
assistance When Student was in second grade (gifted
general education classroom), District proposed exiting him
Parents disputed decision because they continued to observe autistic-like behaviors at home
Parents believed Student engaged in socially inappropriate behaviors and had unaddressed OT needs
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Autism – Case ExampleRiverside USD (OAH 2007) Decision
ALJ upheld IEP team’s recommendation to exit Student
Student demonstrated he could succeed in general ed classroom
Witnesses testified to Student’s academic success and appropriate peer interaction
At-home behaviors might or might not be related to autism and did not manifest themselves at school
No issues that required OT, despite Student’s unusual pencil grasp
(Riverside Unified School Dist. v. Student (OAH 2007) Case No. N2007020300, 49 IDELR 83)
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ED/SLD – Case ExampleSouth Pasadena USD (OAH 2011) Facts
CDE Diagnostic Center assessed 9-year-old Student, diagnosing her with selective mutism and social phobia
District found Student eligible under ED category, later adding secondary category of SLD
Following triennial assessment, after Student had moved on to middle school, District recommended exit from special ed based on her considerable academic progress and appropriate peer interactions
Parents believed Student would fall behind if she no longer received counseling and speech/language services
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ED/SLD – Case ExampleSouth Pasadena USD (OAH 2011) Decision
ALJ upheld IEP team’s findings that Student no longer met ED or SLD criteria
Although shy, no evidence of pervasive mood of unhappiness or depression
Interacted well with peers and teachers, made friends and made good academic progress without need for support
No discrepancy between cognitive ability and academic performance
(South Pasadena Unified School Dist. v. Student (OAH 2011) Case No. 2011050857, 58 IDELR 120)
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OHI – Case ExampleBaldwin Park USD (OAH 2010) Facts
District originally found 12-year-old Student eligibleas OHI based upon review of doctor’s prescription documenting diagnosis of ADHD
Offered behavior support services and one-to-one aide
The following school year, assessment indicated Student’s processing disorders were not affecting educational performance
Team recommended exit from special ed and offered behavior support contract to be implemented by general ed teachers
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OHI – Case ExampleBaldwin Park USD (OAH 2010) Decision
ALJ confirmed exiting decision While Student’s behaviors were “slightly
heightened” due to ADHD, they generally were typical of other students his age and did not affect access to education
Behavior aide was only minimally interacting with Student, and general ed teachers were providing redirectionwhen needed
Parents’ IEE was not credible because assessor had no knowledge of in-class behaviors or academic performance
(Baldwin Park Unified School Dist. v. Student (OAH 2010) Case Nos. 2010090527 and 2010080694, 110 LRP 71934)
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SLI – Case ExamplePalo Alto USD (OAH 2015) Facts
Student’s genetic disorder (Trisomy X) resulted in misalignment of jaw, making production of certain sounds difficult
Found eligible in preschool under SLI category based on articulation disorder
The following year, Student was reassessed because she had made “great progress”
IEP team determined Student no longer had difficulty with spoken language to extent that it adversely affected her educational performance
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SLI – Case ExamplePalo Alto USD (OAH 2015) Decision
ALJ supported exiting decision, despite Parents’ IEE recommending Student continue to receive individualized speech therapy
Student’s articulation had improved so that her speech was 90 percent intelligible
She developed alternate methods for producing sounds made difficult because of her jaw misalignment
IEE “only provided generalized observations” in recommending continued therapy
(Palo Alto Unified School Dist. v. Student (OAH 2015) Case No. 2015010524, 115 LRP 10194)
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SLI/SLD – Case ExampleTustin USD (OAH 2009) Facts
Fourth-grade Student found eligible under SLI when he was 3-years-old based on speech delays
Received speech therapy and began meeting IEP goals beginning with kindergarten year
In first grade, assessment indicated eligibility as SLD
By third grade, triennial assessment no longer indicated severe discrepancy to support SLD eligibility and Student’s articulation had continued to improve
IEP team recommend exiting Student
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SLI/SLD – Case ExampleTustin USD (OAH 2009) Decision
ALJ allowed exit, despite Parents’ claim that Student continued to require special education because he had trouble pronouncing “r” sound and needed help with homework
Mild articulation deficit and auditory processing weakness did not impact education, as Student received good grades and only required general education supports
Standardized tests also supported team’s conclusion that Student no longer qualified under SLD category
(Tustin Unified School Dist. v. Student (OAH 2009) Case No. 2008120809, 109 LRP 31220)
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Graduation: IDEA Requirements IEP Content
Specific graduation plan/criteria may be included at team’s discretion
Typically, IEP teams discuss graduation date and receipt of diploma or certificate
IEP Meeting Required to discuss graduation requirements and
completion of goals/objectives(Letter to Anonymous (OSEP 1994) 22 IDELR 456; Letter to Richards (OSEP 1990) 17 IDELR 288)
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Graduation: IDEA Requirements Evaluation
Not required prior to termination of services (if aging-out or graduating with regular high school diploma)
Summary of Performance Required for students graduating with regular
diploma Include recommendations for meeting
postsecondary goals
(34 C.F.R. §300.305(e))
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Graduation: IDEA Requirements
Graduation with regular high school diplomais a change of placement Terminates eligibility Triggers procedural
safeguards (including duty to provide PWN)
(34 C.F.R. §300.102(a)(3))
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Graduation – Case ExampleLos Angeles USD (OAH 2012) District committed procedural violation by failing
to provide PWN of intent to change Student’s placement through graduation
However, ALJ found procedural error did not result in denial of FAPE Did not impede Parents’ participation in decision-
making as they knew of District’s intent to graduate Student
No deprivation of educational benefits as Student received special education until graduation and met all diploma and IEP requirements
(Student v. Los Angeles Unified School Dist. (OAH 2012) Case No. 2011110413, 112 LRP 27364)
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Graduation with Regular Diploma Regular high school diploma
Signifies: Completion of district’s course of study Student has met district’s proficiency
standards Does not include: Alternative degree not aligned
with state academic standards, such as certificate or GED
(34 C.F.R. §300.102(a)(3); Ed. Code,§56026.1)
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Termination of Eligibility Receipt of regular high school diploma terminates
eligibility No requirement that students physically receive
diploma prior to effective exit from special education
Parents cannot withhold consent to IEP merely to extend Student’s special ed services beyond point of completion of prescribed course of study
Although readiness for graduation does not depend on achievement of all IEP goals, decision to graduate may be rescinded if student did not receive services outlined in IEP or did not complete IEP course requirements
(34 C.F.R.§300.102(a); Ed. Code,§50621.1; Student v. Oakland Unified School Dist. (OAH 2012) Case No. 2012040848); Student v. Livermore Valley Joint Unified School Dist. (SEHO 2000) 33 IDELR 288)
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Graduation – Case ExampleNewport Mesa USD (OAH 2010) Parent claimed decision to award diploma was a
denial of FAPE because Student’s academic levels were not up to 12th-grade proficiency
Claimed he was achieving at fourth- to sixth-grade level
ALJ: Allowed graduation Student completed all educational requirements
and achieved necessary credits Teachers confirmed he earned each of his grades 12th-grade proficiency is not required by law (Student v. Newport-Mesa Unified School Dist. (OAH 2010) Case No. 2010060770, 110 LRP 73203)
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Graduation – Case ExampleLos Angeles USD (OAH 2013) Parents disputed IEP team’s decision to graduate
Student with regular education diploma ALJ rescinded diploma and found denial of FAPE Student did not meet prescribed course of study
calledfor in IEP (unmodified curriculum) Teachers testified they routinely simplified and
altered curriculum for Student, who still did not understand it
No evidence that grades were earned in unmodified manner
ALJ ordered IEP team to reconvene and develop FAPE offer
(Student v. Los Angeles Unified School Dist. (OAH 2013) Case No. 2013050272, 62 IDELR 68)
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Graduation and FAPE
Post-graduation remedies for denial of FAPE Available even after eligibility terminates by
graduation Usually in form of compensatory services to assist
Student in furthering education, obtaining employment and/or living independently
Graduation is not per se indication that Student has received FAPE
(Letter to Riffel (OSEP 2000) 34 IDELR 292)
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Certificate of Achievement If Student does not meet requirements for diploma,
District may award certificate of educational achievement if Student: Completed prescribed approved alternative courses of
study; or Satisfactorily met all IEP goals/objectives; or Satisfactorily attended high school, participated in
instruction per IEP and met objective of transition services
Graduation with certificate of achievement does not terminate FAPE eligibility and does not serve to exit student from special education
(Ed. Code, §56390)
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Graduation
Practice Pointer To avoid potential disputes about graduation
decisions, ensure that:Parents are aware early on of graduation
requirements and diploma optionsParents understand that graduation with regular
diploma automatically terminates eligibility IEP team’s decision concerning diploma track is
based on multiple indicators of student’s learning and skills and is supported by data and documentation
Student has met prescribed course of study in IEP
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“Aging Out” of Special Education Students who have not yet been exited from special
education through assessment or graduation with regular diploma continue to be eligible for services until age 22 Students turning 22 during January through June may
continue participation through end of fiscal year Students turning 22 during July, August or September are
not allowed to begin new fiscal year in district’s program Students turning 22 during October, November or
December will be exited on December 31, unless IEP (not merely IEP goals) would not be completed by that time
Example: Student who is in special year-long program at community college may not be exited until end of following fiscal year
(Ed. Code, §56026, subd. (c)(4))
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Parental Revocation of Consent IDEA regulations were amended in 2008 to allow
parents to revoke consent to their child’s receipt of special education and related services
Revocation serves to exit student from special ed Requirements and effect:
Must be made by party who meets legal definition of “parent”
Must be in writing Does not negate any action that occurred between time of
original consent and receipt of revocation Only takes one parent to revoke consent, even if
other parent disagrees(34 C.F.R.§§300.9(c), 300.300(b)(4); Letter to Ward (OSEP 2010) 56 IDELR 237; Letter to Cox (OSEP 2009) 54 IDELR 60)
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Parental Revocation of Consent District obligations upon receipt
of written revocation of consent May not continue to provide special education
and related services May not use mediation or due process
procedures in order to obtain ruling for continuation of services
Will not be considered to be in violation of FAPE requirement based on failure to provide further services
Is not required to convene IEP meeting or to develop IEP
(34 C.F.R.§300.300(b)(4))
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Parental Revocation of Consent Districts may not terminate services
immediately upon receipt of revocationof consent Must first provide PWN that explains
changes in student’s educational program that will result from revocation
Provision of PWN gives parents necessary information and time to consider all ramifications of revocation
(34 C.F.R.§300.300(b)(4); 73 Fed. Reg. 73008 (Dec. 1, 2008))
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Parental Revocation of Consent Specific issues implicated by revocation:
Accommodations: Teacher may provide accommodations available to nondisabled students, but no longer required to provide those identified in IEP
Child find: Some decisions indicate child find is not implicated unless evidence that student has different needs than those previously addressed in IEP for which consent was revoked
Discipline: Student may be disciplined as general education student and is not entitled to IDEA protections
(IDEA Part B Supplemental Regulations, Non-Regulatory Guidance (OSEP 2009); Houston Indep. School Dist. (SEA TX 2014) 114 LRP 44750; Questions and Answers on Disciplinary Procedures (OSERS 2009) 52 IDELR 231)
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Parental Revocation of Consent Specific issues implicated by revocation
(cont’d): Education records: District is not required to
amend records to remove reference to student’s previous receipt of special education
Placement: District may place student in any classroom where it places other general education students
Subsequent evaluation requests: If parent subsequently asks that student be re-enrolled in special education, district must treat request as request for initial evaluation
(IDEA Part B Supplemental Regulations, Non-Regulatory Guidance (OSEP 2009); Letter to Cox (OSEP 2009) 54 IDELR 60)
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Revocation of Consent
Practice Pointer Take the following actions upon receiving a
parental revocation of consent:Provide PWN “promptly” upon receiptDiscontinue services a “reasonable” time after
providing PWN Detail consequences of revocation in PWN,
specifically that: Student will no longer receive special education of
any kind Student will no longer have IDEA disciplinary
protections
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Take Aways . . . Exiting decisions require:
Appropriate assessments Procedural compliance Knowledge of eligibility standards
Collaboration with parents is essential throughout exitingdecision-making process