Policy 2419 revisions Effective January 11, 2010

1. Regulations for the Education of Students with Exceptionalities Policy 2419 revisionsEffective January 11, 2010

2. IDEA Regulations Revised • Individuals with Disabilities Education Act regulations revised December 1, 2008 • Effective December 31, 2008 • Parent right to revoke consent for special education and related services • Codified requirement to correct noncompliances as soon as possible and no later than one year after notification • Representation at due process hearing by nonattorneys

3. Why revise Policy 2419?

4. Revised Policy 2419 • Policy and guidance documents are posted on the OSP Web site: • http://wvde.state.wv.us/osp/policy2419.html • Policy also is posted on the WVBE Web site: • wvde.state.wv.us/policies Procedural safeguards regarding parent right to revoke consent have been revised by WVDE

5. Revisions • Parent right to revoke consent • Student Assistance Teams • Prior written notice • Eligibility criteria – gifted and mental impairment • Dates for Response to Intervention implementation • IEP considerations • Testing accommodations and APTA criteria moved to Participation Guidelines document • Least restrictive environment • PreK caseloads • Discipline • Due process hearings and mediation

6. Prior Written Notice (PWN) • Changes made throughout the policy to create consistency • General timeline for provision of PWN changed to 5 days (previously 10 days) • In response to comments that 10 days often was an unnecessary delay • To ensure consistent rule • Disciplinary removal resulting in change of placement requires same day PWN

7. Chapter 1 – Free Appropriate Public Education Page 6 - Medicaid consent procedures revised, consistent with OSEP clarification • Consent documentation must be obtained from parent prior to disclosing student records and billing Medicaid • Specific services, extent, frequency and duration of services documented • Revised and parent consent obtained if billable services change • Consent may be, but need not be, requested at an IEP meeting; may obtain consent without convening an IEP meeting

8. Chapter 1 – Free Appropriate Public Education Page 7 – Clarifies the term “standard diploma” does not include: • Modified diploma • General Educational Development credential (GED)

9. Chapter 2 – Child Find • Page 9 - Referral sections reorganized and streamlined • Clarifies referrals may be made by any interested person or agency; evaluations may be initiated only by parent or district • Clarifies who receives and processes referral. • Policy 2419 addresses SAT for purpose of considering referrals for special education, however, SAT has other purposes not involving special ed referrals, to which timelines would not apply.

10. Chapter 2 – Child Find Student Assistance Team • Pages 9-10 - The SAT may: • Conduct problem-solving process • Process written referrals for special education • Respond to parent request for initial evaluation and provide prior written notice • Initiate initial evaluation when warranted based on outcome of interventions, response to a parent request, or when apparent disability warrants immediate attention

11. Processing Special Ed Referrals • Within 5 school days of receipt of written referral for evaluation, notify team members. • Within 10 days, conduct review of concerns, data and interventions (if any) and make a determination of further action • Must invite parents to review recommendations.

12. Conducting the SAT Problem-Solving Process: • Initiate, continue or modify interventions within a timeline established for the student by the SAT; • Review the effectiveness of the SAT’s recommendations within the timeline established for the student, but in no case may the review take place beyond forty-five school days;

13. SAT Problem-Solving Process (con’t) 3. Ensure problem solving activities of the SAT are not used to delay processing a request for initial evaluation where immediate action is warranted; and 4. Close the problem-solving process when appropriate based on results of interventions: or

14. Initiate (or Refuse) an Evaluation • Request an initial evaluation, in cases where warranted, for example, a sensory impairment or other significant disability requiring immediate attention or when presented evidence and documentation of previous interventions sufficient to make a decision; or • When a written request for initial evaluation has been initiated by the parent, determine whether the evaluation will be conducted, and provide prior written notice of the decision and a copy of the procedural safeguards to the parent.

15. Prior Written Notice • Within five days of SAT decision to request multidisciplinary evaluation, provide PWN and procedural safeguards to parent and request consent for evaluation • SAT may serve as the multidisciplinary team if it has appropriate members or another group may be designated. • Principal, teacher or other designee documents date consent is received

16. Chapter 3 - Evaluation • Page – 14 - PWN required when responding to parent request for additional evaluation • Upon receipt of a written parental request for an additional evaluation, the IEP team considers the request, with or without holding a meeting, and within ten days of receipt provides prior written notice of its response. If the evaluation is conducted, the aforementioned timelines apply.

17. Chapter 3 - Evaluation • Page 15 - PWN required when requesting parent consent for evaluation/reevaluation • Page 16 - Written consent requested within five days of decision to evaluate

18. Chapter 4 - Eligibility • Page 19 - Eligibility Committee must convene within 80 days of parent consent or after completion of reevaluation • Provide parents of students with sensory impairments information pertaining to WV Schools for the Deaf and the Blind (p. 20) • Page 26 - Gifted eligibility criteria: • If student’s general intellectual ability score is unduly affected by performance in one or more composite scores, an alternate general ability index or individual composite measure may be used as permitted in test manual • Individualized Student Transition Plan for gifted in grades 9-12 consistent with Policy 2510 (p. 27)

19. Chapter 4 - Eligibility • Criteria for mental impairment revised per clarification (p. 28) • Mild/moderate • Moderate/severe Aligns with certification patterns and provides flexibility in determination based on adaptive functioning • RTI timelines revised per clarification (pp. 30 and 36)

20. RTI • Page 31 - Students who do not achieve mastery on essential or critical grade-level skills, as substantiated by assessment results, are identified for additional supports and interventions at Tier 2.

21. Chapter 5 - IEP • Page 43 - When the IEP team and parent do not reach consensus, the district representative makes the decision and provides PWN to parent at conclusion of the meeting • Clarifies IEP team must conduct manifestation determination within ten days of disciplinary removal resulting in change of placement

22. Chapter 5 - IEP • Pages 46-47 - Reorganizes IEP considerations to reflect order in IDEA regulations • Changes WESTEST to WESTEST2 • Page 51 - Deletes sections duplicated in Guidelines for Participation of Students with Disabilities in State Assessments – requirements still in effect but now found only in the guidelines posted at: http://wvde.state.wv.us/oaa/filecabinet.html#federal

23. Chapter 5 - IEP • Page 52-53 - Least restrictive environment • Reorganizes and removes repetition • Clarifies that continuum of placements must be available • Clarifies that placement in LRE is decided after all other parts of the IEP are completed and is based on student’s needs • Adds placement may not be based on availability of placement options, services, staff or space – similar to previous Policy 2419 requirements

24. Parent Right to Revoke Consent • Prior to IDEA, federal regulations required parent to file a due process hearing to remove a child from special education services • Districts were reluctant to remove a child due to free, appropriate public education requirement • IDEA regulations had been interpreted by Office of Special Education Programs (OSEP) to allow parent choice • December 1, 2008 codified the parent’s right, effective December 31, 2008

25. IDEA, 34 CFR §300.300 (3) If the parent of a child fails to respond to a request for, or refuses to consent to, the initial provision of special education and related services, the public agency— (i) May not use…mediation procedures under § 300.506 or the due process procedures under §§ 300.507 through 300.516 in order to obtain agreement or a ruling that the services may be provided to the child;

26. IDEA, 34 CFR §300.300 Will not be considered to be in violation of the requirement to make FAPE available to the child because of the failure to provide the child with the special education and related services for which the parent refuses to or fails to provide consent; and (iii) Is not required to convene an IEP Team meeting or develop an IEP under §§ 300.320 and 300.324 for the child.

27. IDEA, 34 CFR §300.300 (4) If, at any time subsequent to the initial provision of special education and related services, the parent of a child revokes consent in writing for the continued provision of special education and related services, the public agency— (i) May not continue to provide special education and related services to the child, but must provide prior written notice in accordance with § 300.503 before ceasing the provision of special education and related services;

28. IDEA, 34 CFR §300.300 (ii) May not use …mediation procedures under § 300.506 or the due process procedures under §§ 300.507 through 300.516) in order to obtain agreement or a ruling that the services may be provided to the child; (iii) Will not be considered to be in violation of the requirement to make FAPE available to the child because of the failure to provide the child with further special education and related services; and (iv) Is not required to convene an IEP Team meeting or develop an IEP

29. Consent for Initial Placement and Revoking Consent – Pages 56-57 • Parent or student to whom rights have transferred must revoke consent in writing • Provide PWN within five days of receipt of written revocation to parent regarding termination of services

30. Implications of Revocation • Amendment of records not required • Age of majority – student to whom rights have transferred may revoke consent, however, also parents receive PWN • Consent may not be revoked for a particular service • Subsequent request for evaluation after services have been terminated is treated as initial evaluation • The student is no longer entitled to special discipline rules • The student no longer receives IEP accommodations in general education environment

31. Disagreement on Particular Service • Initial consent is for special education and related services, not for a particular service • When consent is revoked, it is for all special education and related services • If a parent wishes to terminate a specific service, IEP team considers whether FAPE can be provided without it, and, if so, may remove the service from the IEP • If the IEP team refuses to remove the service, the parent may use due process hearing to resolve the issue

32. PWN and IEP – Page 57 At the conclusion of the IEP Team meeting, provide the parent or adult student prior written notice and a copy of the IEP • This applies whether or not the parent attends the meeting and whether or not the parent agrees with the IEP Procedural Safeguards Notice - p. 60 • Provide for disciplinary removal resulting in change of placement (p. 65)

33. Chapter 6 – Administration of Services • Page 63 – Maximum case management limit of 20 students with IEPs for teachers of developmental delay • Page 66 – Special education teacher required

34. Chapter 6 – Caseloads • When students with different levels of service need are in the same class, the per period staffing ratio for the highest level of need (more staff) is required (p. 67)

35. Pre-K Caseloads

36. Chapter 7 - Discipline • Disciplinary removal resulting in change of placement (e.g. over 10 days) requires same day PWN and procedural safeguards (p.69) • School personnel (not district) may unilaterally remove a student to Interim Alternative Educational Setting for specific reasons (drugs, weapons, serious bodily injury) (p. 70) • Severe bodily harm change to “injury” consistent with federal law

37. Chapter 9 – General Supervision and Accountability • Notification and correction of noncompliances as soon as possible, and in no case later than one year Chapter 10 – Procedural Safeguards • PWN five day timeline (p. 92) • Parent revocation of consent added to applicable sections (p. 93, p. 102)

38. Chapter 11 – Dispute Resolution • Mediation may be filed for “any matter” (p. 101) – changed consistent with IDEA 2004 regulations • WVDE informs parent of free/low cost legal assistance when a due process hearing is filed (not district) (p. 103) • Representation by nonattorneys (p. 107) • Due process hearing decision may be appealed to civil court within 90 days (p. 110)

39. Direct questions to: Sandra McQuain, Ed.D.Assistant DirectorOffice of Special ProgramsWest Virginia Department of Education Bldg. 6, Room 304 Charleston, WV 20305 smcquain@access.k12.wv.us (304)558-2696 FAX (304) 558-3741