Master These 5 Procedural Safeguards to Reduce Disputes

(Posted July 10, 2015)

Article by Jennifer Herseim, June 9, 2015
Excerpts from Brook Phillips, WDE Vision Outreach Services Consultant

DENVER — The president and Congress. Businesses and consumer advocates. Villains and superheroes. We live in a society filled with checks and balances.

So, too, the IDEA sets out a system of checks and balances called procedural safeguards.

These safeguards bestow certain rights to parents of students with disabilities to help balance the intrinsic power and authority of school districts, says Lenore Knudtson, educational consultant with Pingora Consulting LLC.

“Procedural safeguards are critically important to build in checkpoints along the way to make sure that the parent is involved in the IEP process to the extent that they’re able to be,” Knudtson said.

When school staff members use procedural safeguards effectively, they also contribute to healthier-functioning IEP teams, Knudtson said.

For example, think about how an artfully drafted prior written notice becomes a powerful communication tool for the district and parents, she said. Or, how honoring a parent’s right to examine records helps show transparency on the district’s part, she said.

Help your staff use these five procedural safeguards more effectively to build healthy IEP teams:

1. Prior written notice. Give credit for your district’s work, Knudtson said. Sometimes, staffers don’t include enough details in the PWN about other placement options that were considered, she said. “That can leave parents feeling as though the school isn’t taking their child’s needs seriously enough,” she said. If you are proposing a placement, include the other placement options that the team considered and the reasons why those options were rejected. Be detailed about the assessment information and data that went into the district’s decision.

Make sure that the PWN “tells the story of this child,” Knudtson said. “That’s what’s going to have the parent’s picture match the school district’s picture,” she said. Put enough substance in the notice so that the parent knows exactly what is being proposed or refused, the date when this change will become effective, the reasons why the district is taking the action, and what other options were considered, she said. Also, include the basic requirements of PWN at 34 CFR 300.503.

Send the prior written notice after the school or team generates a proposal and before the action will be implemented, Knudtson said. “School staff continue to be confused by the timing of prior written notice because of the word prior,” she said. If the PWN is sent before the district gathers parent input, it could lead to a predetermination claim, she said.

2. Parental consent. Consent must be informed and in writing, Knudtson said. “A parent might think if they write on a piece of paper, ‘I want my child evaluated,’ that they are giving their informed consent and that it starts the 60-day evaluation timeline. … No, it doesn’t, because that’s not informed consent,” she said. The district must provide informed consent, which is done through an artfully drafted PWN, she said.

Staff need to explain what consent means, when they need to seek consent, which can vary by state, and what makes consent informed, she said.

Revocation of consent is also a tremendous balancing power for parents, Knudtson said. “Parents need to understand that it’s revocation for all services, not just a particular service,” she added.

3. Independent educational evaluations. Don’t put up artificial barriers to IEEs, Knudtson said. “Having more information about a student is not necessarily a bad thing,” she said. Sometimes a disagreement evolves because a parent doesn’t think the district’s evaluation matches his picture of his child, she said. “Many times the IEE affirms what the district found,” she said. If that’s the case, the parent is much less likely to disagree with the district’s evaluation because [she] got a perspective from an independent source, she said.

IEEs are a right that “matures,” meaning that parents can request one only when they disagree with the district’s evaluation or to fill in a gap in the district’s evaluation, Knudtson said. “In the event that an IEE is needed, it’s an important right. But the best course of action is to comprehensively evaluate that student to eliminate the need for an IEE in the future,” she said. Know what questions still remain after reviewing data about the student, she said. “If a comprehensive evaluation is planned together and there’s a thorough prior written notice memorializing that whole conversation, it’s less likely that a parent will allege that your evaluation is less than comprehensive,” Knudtson said.

4. Opportunity to examine records. “The openness of records is an important right, but it’s also a symbolic gesture of leveling the playing field and being transparent with parents,” Knudtson said.

Parents have the right to examine their child’s educational records that are maintained by the school district, Knudtson said. Preventing a parent from examining these records inhibits the parent’s opportunity to participate in the IEP process, which can rise to the level of a denial of FAPE, she said. Schools must provide records no later than 45 days after the parent requests them, she said. If possible, provide records sooner and before an upcoming IEP meeting, she said.

5. Dispute resolution. The opportunity to dispute the district’s decision is the ultimate balancing authority for parents, Knudtson said. Try to resolve disputes at the lowest possible level, she said. Ideally, if IEP teams draft thorough PWNs, clarify what consent means, provide comprehensive evaluations that eliminate the need for IEEs, and allow parents to examine records, they’ll avoid the need for dispute resolution, she said. However, if a team heads toward dispute, suggest mediation, she said. “In mediation, the parties get to control and fashion their solutions. They get to own their solutions right up front,” she said.

Knudtson spoke about these essential procedural safeguards during LRP’s 36th Annual National Institute on Legal Issues of Educating Individuals With Disabilities®.

To read the complete article, go to (Note: You must have a Special Ed Connection account to access the site): http://www.specialedconnection.com/LrpSecStoryTool/index.jsp?contentId=22696270.