Administrative Advisory SPED 1998-02:
Changes to Required Legal Notice for Special Education and Federal Guidance on Short-Term Suspension of Special Education Students
||Superintendents, Charter School Leaders and Other Interested Parties
||Robert V. Antonucci, Commissioner of Education
||October 1, 1997
Last month, I provided you with a memorandum on changes in the federal special education law, the Individuals with Disabilities Education Act Amendments of 1997 (IDEA-97). That memorandum, Advisory SPED # 98-001, discussed how the changes in federal law affect school district practices for students with disabilities. This memorandum, Advisory SPED # 98-002, follows up by outlining the new legal requirements for notice to parents under the federal law, focusing on two elements: (1) the notice of procedural safeguards that we call the "Parents' Rights Brochure," and (2) the requirements for written prior notice. Additionally, I have enclosed guidance we have received from the U.S. Department of Education on suspension.
NOTICE OF PROCEDURAL SAFEGUARDS -- IDEA-97 requires the local educational agency (e.g., the school district or charter school) to give a "notice of procedural safeguards" to the parents of a child with a disability, at a minimum, in the following cases: upon initial referral of the child for evaluation; upon each notification of an individualized education program (IEP) meeting; upon reevaluation of the child; and upon registration of a complaint, including a request for a due process hearing (Sec. 615 (d) of IDEA-97). In Massachusetts the notice of procedural safeguards has been adopted as a state-mandated form called the "Parents' Rights Brochure." This notice is described in ¶317.2 (e-m) of the Chapter 766 Regulations.
IDEA-97 has changed some of the procedural safeguards and also limits the number of situations in which school districts must provide parents with the full notice of procedural safeguards. A chart at the end of this memorandum outlines when the notice of procedural safeguards is required and when other types of notice are required or permitted.
We have developed a supplement to the existing Parents' Rights Brochure to cover new elements added under IDEA-97. A copy of the supplement is attached to this memorandum. School districts may copy the supplement and simply attach it to existing copies of the Parents' Rights Brochure. You may order multiple copies of the brochure, including the supplement, from the Department of Elementary and Secondary Education by calling 781-338-3700.
The supplement to the Parents' Rights Brochure includes updated information on the following:
- Participation in State and District Assessments
- Transfer of Responsibility Upon Reaching Age of Majority
- Unilateral Placements by Parents to Private Schools
- Opportunity to Request a Due Process Hearing
- Procedures for Placement in An Interim Alternative Education Setting for Disciplinary Reasons
- Attorney Fees
Since these changes are significant for students, parents, and school districts, we recommend that school districts send the supplement to all parents of students in special education, to inform them of additional rights and responsibilities under IDEA-97.
The Parents' Rights Brochure, with the September 1997 supplement, should be used during the current school year. The Department of Elementary and Secondary Education will revise the full Parents' Rights Brochure by spring 1998 for use during the 1998-1999 school year.
WRITTEN PRIOR NOTICE -- IDEA-97 requires the local educational agency (e.g., the school district or charter school) to send written prior notice to the parents of the child whenever it "proposes to initiate or change, or refuses to initiate or change, the identification, evaluation or placement of the child, or the provision of a free appropriate public education to the child." Sec. 615 (b) (3). The federal law, at Sec. 615 (c), specifies that the written prior notice must contain:
- a description of the action proposed or refused by the agency [the district or school];
- an explanation of why the agency proposes or refuses to take the action;
- a description of any other options that the agency considered and the reasons why those options were rejected;
- a description of each evaluation procedure, test, record, or report the agency used as a basis for the proposed or refused action;
- a description of any other factors that are relevant to the agency's proposal or refusal;
- a statement that the parents of a child with a disability have protections under the procedural safeguards of the IDEA and, if the Parents' Rights Brochure is not provided with this notice, the means by the parent may obtain a copy of the Parents' Rights Brochure;
- sources for parents to contact to obtain assistance in understanding the IDEA.
IDEA-97 eliminates the previous requirement to provide parents with a full explanation of procedural safeguards (i.e., the Parents' Rights Brochure) each time written prior notice is provided to parents. It is sufficient to include a general statement about the availability of the Parents' Rights Brochure, along with sources of assistance parents may contact. The sample letters included in the Mandated Special Education Forms package provided by the Massachusetts Department of Elementary and Secondary Education cover all of this information. However, if your district or school has adapted the sample letters for local use, please review them to ensure they contain all required elements and information. Also, please note that the federal law requires notices to be provided in the parent's native language unless it is clearly not feasible to do so.
In some situations a simple invitation to a meeting is sufficient, and full written prior notice (as described above) is not necessary. School districts are required to provide parents with written notice of any meeting regarding the identification, evaluation, educational placement, or the provision of a free appropriate public education to the child, before the meeting takes place. IDEA 97 does not prescribe the content of such a meeting notice, which is referred to as an "invitation" in the chart below.
Written Notice Requirements Under IDEA-97
|Action Taken or To Be Taken
||Type of Notice (Invitation) Required
|Proposal or refusal to conduct an initial evaluation, re-evaluation, or emergency evaluation
||Written prior notice and Parents' Rights Brochure
|Holding a meeting to determine eligibility, and/or develop an IEP, and/or determine placement
||Written invitation to meeting including information on the type of meeting being held.
|If the meeting is for the purpose of developing, reviewing or revising an IEP
||A copy of the Parents' Rights Brochure must be included with the invitation .
|Informing parents of a finding of no special needs
||Written prior notice
|Offer of a new or amended IEP
||Written prior notice
|The school district is responding to a parent request for educational placement or services with a refusal to provide such placement or services.
||Written prior notice
|Suspension or expulsion of an eligible student for more than ten cumulative days in the school year
||Written invitation to meeting to make manifestation determination, written prior notice, and Parents' Rights Brochure
FEDERAL GUIDANCE ON SUSPENSION OF STUDENTS WITH DISABILITIES -- The Office of Special Education Programs (OSEP) of the U.S. Department of Education recently issued a document providing guidance on IDEA-97 as the new law affects a school's disciplinary authority to remove a student with disabilities from the current educational placement for ten school days or less. The enclosed document, OSEP 97-7, provides background information on this section of the federal law and answers questions that many school officials have asked.
I provided some information on this topic in the special education advisory #98-001, along with the exact language of the statute on this area. The enclosed document from the U.S. Department of Education provides additional detail.
Please share this information with others in your school community as needed. We hope you will find it helpful. If you have any questions about this advisory, please contact Program Quality Assurance at the Department of Elementary and Secondary Education at 781-338-3700 .
Attachments:Supplement to the Massachusetts Department of Elementary and Secondary Education Parents' Rights Brochure
OSEP 97-7: Initial Disciplinary Guidance Related to Removal of Children with Disabilities from their Current Educational Placement for Ten School Days or Less