Introducation to Special Education Programs: Lesson 2

Identifying a student with disabilities allows the school to provide additional services and improves the student's chances for a meaningful learning experience. There are, however, inherent dangers in the process: assessment procedures may be biased or inaccurate; the privacy and dignity of the student may be compromised; or students may be improperly placed in restrictive environments. The consequences of improper identification and\or placement can potentially be severe. Several legal safeguards influence the delivery of special education programs. These safeguards include the parents' right to be notified before assessment procedures occur, the requirement that schools obtain the parents' written consent prior to conducting an assessment, and the right of parents to participate in the identification and placement process. Requiring informed consent allows parents the opportunity to serve as an advocate for their child and supports their right to challenge the decisions of the school. Finally, procedures have been established to insure that the privacy of both students and parents is protected.

Parental Notice, Consent, and Participation

The school must notify parents in writing whenever they wish to evaluate or identify a child as disabled, place a child in a special education program, or change this identification or placement. This notice must be provided within a reasonable time before the evaluation or change takes place.

Schools must obtain consent from parents before conducting a replacement evaluation or making initial placement of a child in a program providing special education and related services. If parents refuse consent, the school may initiate an impartial hearing at which the decision to evaluate or place the child will be made.

Consent means that the school has fully informed the parent in their native language of all relevant information and that the parent agrees to the placement evaluation in writing. The written consent must describe the activities to be carried out and must list the records (if any) which will be released and to whom. Parents may revoke consent at any time.

**Definitions of Consent and Notice**
Nebraska Administrative Code, Chapter 51
003.09	Consent shall mean that the parent has been fully informed of all information relevant to the activity for which consent is sought, in his or her native language, or other mode of communication; that the parent understands and agrees in writing to the proposed activity; that the consent includes a description of the proposed activity and a list of records (if any) which will be released and to whom they will be released and the parent understands that the granting of consent is voluntary and may be revoked at any time.
003.28	Notice shall mean written information provided to the parent of a child with disabilities before the school district proposes or refuses to initiate or change identification, evaluation, or educational placement of the child or the provision of a free appropriate public education.

Please see Rule 51, Section 009.03 - 009.05 for more information on Nebraska regulations regarding parental notice and consent.

Impartial Due Process Hearing

Either the parent or the school may initiate an impartial due process hearing when disagreements over evaluation, placement, or services arise. The school or the Nebraska Department of Education conducts the hearing. Both the parents and the school have a right to be represented by an attorney and to present evidence at this hearing.

Opportunity to Examine Records

The parents must have the opportunity to inspect and review all education records concerning the identification, evaluation, and educational placement of the child, and the provision of educational services.

The school must permit parents to inspect and review any educational records relating to their children that the school has collected, maintained, or used. The school must comply with a request for the records without unnecessary delay. This must take place before any meeting regarding an individualized education program or hearing relating to the identification, evaluation, or placement of the child occurs. In any case, the school must provide the records within 45 days.

The right to inspect and review education records under this section includes:

the right to a response from the school to reasonable requests for explanations and interpretations of the records;
the right to request that the school provide copies of the records containing the information if failure to provide those copies would effectively prevent the parent from exercising the right to inspect and review the records; and
the right to have a representative of the parent inspect and review the records.

A school may presume that the parent has authority to inspect and review records relating to his or her child unless the agency has been advised that the parent does not have the authority under applicable State law governing such matters as guardianship, separation, and divorce.

Confidentiality

Confidentiality is an important ethical and legal issue in providing services to students with disabilities. The Family Rights and Privacy Act, the Individuals with Disabilities Education Act, and Nebraska Administrative Code all address issues regarding the privacy of students and their parents. As employees of the school, those who have a legitimate educational purpose in reviewing student information may have access to student records. Information may not be shared with other school personnel without a legitimate educational purpose. Discussion of personally identifiable information regarding a student in the teacher's lounge, lunchroom or other public area is both unethical and illegal.

Written parental consent must be obtained before personally identifiable information is disclosed to anyone other than officials of the schools which collects or uses the information. This may include individuals, other schools, potential employers, newspapers, or any other agency. Additionally, schools must provide the following safeguards.

Each school shall protect the confidentiality of personally identifiable information at collection storage, disclosure, and destruction stages.
One official at each school shall assume responsibility for insuring the confidentiality of any personally identifiable information.
All persons collecting or using personally identifiable information must receive training or instruction regarding the State's policies and procedures.
Each participating agency shall maintain, for public inspection, a current listing of the names and positions of those employees within the agency who may have access to personally identifiable information.
The school must inform parents when personally identifiable information collected, maintained, or used under this part is no longer needed to provide educational services to the child. The information must be destroyed at the request of the parents. However, the school may maintain a permanent record of a student's name, address, and phone number, his or her grades, attendance record, classes attended, grade level completed, and year completed without time limitation.

**Accessibility and Confidentiality of Records**
Nebraska Administrative Code, Chapter 51 - Section 009.01
009.01A	All school districts, approved cooperatives, and provisionally approved service providers with whom the school district share personally identifiable data shall be bound by the accessibility and confidentiality requirements of this section.
009.01B	The parents of a child with a disability or the child with a disability if the child has attained eighteen years of age, (type and severity of the child's disability shall be taken into consideration) shall be afforded an opportunity to inspect and review all education records with respect to the identification, evaluation, and educational placement of the child and the provision of a free appropriate public education to the child.

Additional information regarding requirements concerning the confidentiality and maintenance of student records can be found in Rule 51, Section 009.01. You may also refer to Unit 2, Lesson 3 on Confidentiality.

Parent Information and Participation in the IEP Process

Schools are required to provide parents with information about IEP meetings and to take steps to insure that one or both parents attend the meeting. If the school is unable to persuade the parents to attend then the meeting can be held without the parents if the school documents the efforts they have taken to convince the parents to attend. Schools must also take steps to insure that parents understand the proceedings of the IEP meeting, include an interpreter if necessary.

**Parent Participation**
Nebraska Administrative Code, Chapter 51 - Section 007.04
007.04A	The school district shall take steps to insure that one or both of the parents of the child with a disability are present at the IEP conference or are afforded the opportunity to participate, including:
	007.04A1 Notifying parents of the IEP conference early enough to insure that they will have an opportunity to attend; and
	007.04A2 Scheduling the meeting at a mutually agreed on time and place.

For additional information on requirements for parent participation please see Rule 51, Section 007.04

Independent Educational Evaluation

The parents of a child with a disability have the right to obtain an independent educational evaluation of the child. Each school must provide to parents, on request, information about where they may obtain an independent educational evaluation. An "independent education evaluation" means an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question.

A parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency. However, the public agency may initiate a hearing to show that its evaluation is appropriate. If the final decision is that the evaluation is appropriate, the parent still has the right to an independent educational evaluation, but not at public expense.

If a parent obtains an independent educational evaluation at private expense, the school must consider the results of the evaluation in any decision made concerning the provision services to the child. The parents may also present the results as evidence at a hearing regarding the child.

**Independent Educational Evaluation**
Nebraska Administrative Code, Chapter 51
003.18	Independent educational evaluation shall mean an evaluation conducted by a qualified professional who is not employed by the school district responsible for the education of the child in question.

For additional information on independent educational evaluation please see Rule 51, Section 006.06

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