Kathy MehfoudTips for Parents and Disputes

Access to Educational RecordsSchool divisions must grant parents access to educational records, according to FERPA, "within a reasonable period of time, but not more than 45 days after it has received the request."  34 C.F.R. Section 99.10(b).  In contrast, the IDEA provides that parents have the right to inspect and review records following a request and that the production by the school division must be made "without unnecessary delay and before any meeting regarding an IEP, or any [due process hearing] or [manifestation meeting] or resolution session… but in no case more than 45 days after the request has been made."  34 C.F.R. Section 300.613(a).  Please be aware of these situations defined in IDEA that require access to records prior to certain meetings or events.  In Virginia, it is also expected that student records will be available upon request "during the regular school day."  Va. Code Section  22.1-289D.

Communications with ParentsSome teachers and parents use a home/school communication notebook so that they may stay in touch to discuss a student's progress or any concerns.  Keep in mind that this type of daily communication would not typically be an IEP requirement and is usually voluntary.  It is important that the school division maintain a copy of the notebook and refrain from giving the only copy to the parents at the end of the school year without maintaining a copy for the school division.  This communication device, if utilized, should be completed by the teacher rather than by a teacher's assistant.  The communications should document a student's successes as well as challenges in order to provide a true picture of the student's performance at school.

Complaint ProceduresEach state must establish its own complaint procedure. The state is required to actively advise of the availability of its complaints procedure to parents of children with disabilities and to other appropriate entities. Complaints may even be filed by organizations or by individuals from other states. If the state finds that there has been a denial of a free appropriate public education to a student or to students, it will order corrective action such as compensatory education services or a monetary reimbursement. Adverse findings, as a result of a state complaint filing, can be avoided in most cases by following the procedures of the IDEA and implementing an appropriate IEP for eligible students.

Definition of “Parent”Foster Parents The definition of "Parent" at 8 VAC 20-81-10 is broad and lengthy.  School staff also should be aware of the requirements of Section 22.1-213.1 of the Code of Virginia, which include requirements for school divisions when relying on a foster parent as a "parent" for purposes of the IDEA or any other purpose.  The state statute provides that the school division may only rely on a foster parent in lieu of a biological or adoptive parent if the biological or adoptive parents are not asserting their rights.  The state statute also requires the school division to provide written notice to the biological or adoptive parents that a foster parent is acting as a parent.Va. Code Sections 22.1-213.1 (B) and (C) state: B. The biological or adoptive parent, when attempting to act as the parent pursuant to this section and when more than one party is qualified under subsection A to act as a parent, must be presumed to be the parent for purposes of this section unless the biological or adoptive parent has had their residual parental rights and responsibilities terminated pursuant to § 16.1-277.01, 16.1-277.02, or 16.1-283 or a comparable law in another state. C. The local school division shall provide written notice to the biological or adoptive parents at their last known address that a foster parent is acting as the parent pursuant to this section, and the local school division is entitled to rely upon the actions of the foster parent pursuant to this section until such time that the biological or adoptive parent attempts to act as the parent.

Documenting Contact with ParentsThere are many times when it is necessary for school staff to document contacts with parents in order to prove efforts were taken to ensure the parents' participation in meetings at mutually agreeable times. Precise documentation of these contacts is essential. Be sure that the documentation includes these elements: the month, date, year and time of the contact; the type of contact (telephone, note sent home, letter); the name of the person who was contacted; and the specific message conveyed. If the parent was not available during the contact, document that the parent was not home or at work, that there was no answer or whatever the circumstances were. Simply reciting in documentation that a telephone call was placed to the home on a certain date does not create an adequate record. Also, be cautious about the content of any messages left with persons besides the parents, left on answering machines, or sent by e-mail. Only use e-mail if the parents have authorized the use of e-mail to communicate with them. Do not leave a message on an answering machine or with a person other than the parents if the message contains information that would breach confidentiality or disclose a disability. The voicemail message should simply recite that the parents are being contacted to schedule "a meeting" (do not specify an IEP meeting, 504 meeting, MDR, etc.) regarding their child and provide information about the name and phone number of the individual who the parent should contact to schedule the meeting. Be aware that identifying oneself in a message as the child's special education teacher or specifying the type of meeting could also improperly disclose the existence of a disability, unless, of course, the disclosure is made to the parent.

Due Process HearingA due process hearing may be initiated by parents or school divisions over such issues as the evaluation, identification or educational placement of a student or the provision of a free appropriate public education to a student. Additionally, parents may initiate an expedited due process hearing over a manifestation determination or the appropriateness of the educational services provided to a student while disciplined. Not every issue or dispute qualifies for a due process hearing as the dispute must fall into one of these enumerated categories.

Electronic Communications as Student Records

It appears likely that under the new Special Education Regulations in Virginia, any e-mails regarding a particular student might be subject to disclosure to the child’s parents.  The new regulations at 8 VAC 20-80-10 include in the definition of "Education record"  the provision that, "In addition to written records, this also includes electronic exchanges between school personnel and parent(s) regarding matters associated with the child's educational program (e.g., scheduling of meetings or notices)."  In 8 VAC 20-80-170(G)(11)(b), the new regulations provide that, "Each local educational agency shall ensure that electronic communications via emails or facsimiles regarding any matter associated with the child, including matters related to IEP meetings, disciplinary actions, or service delivery, be part of the child's educational record."  School division employees need to be aware that their electronic communications regarding special education students may be student records and school divisions should ensure that their record maintenance policies reflect the changes to the regulations

FERPAAvoid inadvertent disclosures of a student's private information.  Do not tell anyone without direct involvement and a need to know that a parent is in an eligibility or IEP meeting as that statement unnecessarily discloses that the parent's child has a disability.  Also, do not post a sign showing that an IEP/eligibility meeting is in progress as that sign could also result in inadvertent disclosure of a student's status.  Instead, refer to these activities only as meetings without disclosing the purpose of the meeting.  If the school has a sign in-sheet, do not sign in with the indication that you are there for the John Smith IEP meeting.  A little attention to what is being disclosed and to whom can prevent FERPA violations.

FERPA – Private Provider Checklists

Private providers will often send checklists to teachers and ask for completion of the checklists as part of a private assessment.  Remember that the forms cannot be completed and returned to the private provider without a release from the parent.  Also, an administrator should be notified of the request so that the administrator can review the completed forms for concerns and oversee the process for their disclosure.  Sometimes the information that is disclosed in these checklists suggests that the student has a disability or is in need of a change in services.  If that is the case, the referral or IEP process should be utilized.

MediationMediation is voluntary but is recommended as an appropriate means of resolving educational disputes without resorting to litigation. Even if the school division does not believe that the mediation will be successful, it may still want to attempt mediation. The process will allow the school division to learn more about the parents' concerns and enable the parents to define more precisely their demands. This information is valuable even if it does not result in a mediation agreement.

Mediation – Follow UpThe IDEA provides that discussions held during a mediation session areconfidential. See 20 U.S.C. Section 1415(e)(2)(G). When the mediationis not successful, a school division should consider offering the sameterms (especially if involved in a due process hearing or if threatenedwith a hearing), including tuition reimbursement, additional IEPservices or attorneys' fees as applicable, in writing following themediation session. In other words, make a written offer of settlementincorporating the exact terms that were offered and rejected inmediation but make the offer not as part of the mediation process. Itis important that the offer not include any reference to the mediationsession as that reference would violate the confidentiality provision ofthe IDEA. The reason for making a separate offer is to preserve theargument, in the event of future litigation, that the parents are notprevailing parties and entitled to attorneys' fees because they receivedno more favorable result in the hearing than had been offered by theschool division in settlement. See 20.U.S.C. Section 1415(i)(3)(D)(i).

Notices to ParentsRemember to invite both parents to any special education meetings, including child study meetings.  Inviting both parents to attend provides a measure of legal protection.  The failure to invite one of the parents may permit that parent later to challenge any decision that was made without notice to him or her.  This challenge could also potentially be made after the two year statute of limitation expires because of the lack of notice.  A due process hearing "…shall allege a violation that happened not more than two years before the parent(s) or the local educational agency knew or should have known about the alleged action that forms the basis of the request for due process."  8 VAC 20-81-210E(1).  Failing to notify both parents can mean that the parent who is not notified did not have knowledge with the result that the statute of limitations may not begin to run.

Notices to Parents – Restraining Orders

Be sure to invite both parents to meetings, even if there is a restraining order by one parent against the other.  It is the responsibility of the parent who is subject to the restraining order to regulate his or her conduct to be in compliance with the restraining order.  It is the responsibility of the other parent to enforce the restraining order if there is a violation.  This enforcement is not typically the responsibility of the school division.  In order to accommodate the attendance of both parents in this circumstance, one or the other may attend the meeting by telephone conference call.

Parental Consent for FBAs• Parental permission must be obtained prior to conducting a Functional

Behavioral Assessment ("FBA"), unless the FBA is a review of records.  A review of records does not require parental consent.  The IEP team determines whether the FBA will consist of a review of records or include evaluations or new testing data. 

• 8 VAC 20-81-10 states:  "Functional behavioral assessment" means a process to determine the underlying cause or functions of a child's behavior that impede the learning of the child with a disability or the learning of the child's peers. A functional behavioral assessment may include a review of existing data or new testing data or evaluation as determined by the IEP team.

• 8 VAC 20-81-170 (E)(1)(A) states: • 1. Required parental consent. Informed parental consent is required

before: a. Conducting an initial evaluation or reevaluation, including a functional behavioral assessment if such assessment is not a review of existing data conducted at an IEP meeting

Parental Request for RecordsIt is important to note the date of receipt of the parents' request for educational records in order to show that documents were made available to the parents in a timely manner and in accordance with the appropriate time limitation.  As explained last week, the period for production is less than 45 days in many circumstances, such as prior to IEP meetings.  If the IEP meeting is to be held the next week, the parents must be given access to the records within that week's period.  Do not automatically assume that a period of 45 days is available to give parents access to educational records in every case.  Note also that the 45 day FERPA time period is expressed in calendar days, not school days.

Parents at IEP MeetingsThe parents should be asked at the beginning of any meeting, whether eligibility, IEP, manifestation or other meeting, to provide any written or oral information that is relevant to the decision to be made or relevant to their child's education. Any information that is shared by the parents must be reviewed and considered by the team during the meeting. If the parents acknowledge that they have information but refuse to share it, record that fact in the prior written notice. If the parents provide information at the end of the meeting and ignore the earlier request to supply all information at the beginning of the meeting, the team should quickly review the information and decide whether it changes the decisions that were made. This approach will obviate the need for a second meeting.

Private ProvidersStudents are often involved with private professionals outside of school and separate from IEP obligations.  It is a good practice in certain cases for school staff to request a release to talk with a private provider in order to obtain information that may be of use in the school setting. Many parents will cooperate in providing this release so that the school staff can be in contact with the private provider.   When a release of this nature is sought and obtained, be sure to follow up by contacting the private provider and seeking information that may be helpful in understanding the student.  The information should be sought so that it is available prior to a meeting.  Do not just place the release in the file and ignore it.  Obtaining information from a variety of sources will assist staff in developing an appropriate program for the student.

Requests from Private Providers

Many students are seeing private providers for counseling, speech therapy and other services.  Sometimes these private providers want information provided or rating scales completed about how the student is performing in school.  This information cannot be shared with the private provider without a written release from the parents and an agreement by the school division that it wants to supply the information.  Make the special education department aware of this type of request, as teachers should not respond without administrative oversight.  Also, be cautious if the information submitted shows that the student is not doing well in school.  This report can be used by parents to establish a failure to offer FAPE.  Finally, be sure that a copy is kept of any information that is sent to the private providers.

Revocation of Consent for Special Education Services

Parents have the right to revoke all special education services for an eligible special education student.  This revocation must be made in writing and applies only to a complete termination of all special education services.  The school division cannot override this parental refusal of services through a due process hearing.  The school division must provide prior written notice to the parents, which advises them among other items, as to the effects of their decision and the date on which services will cease.  The student will then be treated as a general education student.

State Complaint vs. Due Process Hearings

A state complaint must be filed within one year of the event giving rise to the dispute.  A due process hearing must generally be initiated within two years of the event.

A due process hearing and a state complaint may be initiated at the same time concerning the same issue.  The DOE will hold the state complaint in abeyance pending a resolution of the due process hearing and will defer to determinations made in the due process hearing.  If the issues, or some of the issues, are different in the complaint from those in the due process hearing, those issues that are not addressed in the hearing will be immediately investigated through the complaint process.