Information, Events, Tips and Advice for Parents of Special Needs Children in Pensylvania

Special Education News from EdLaw

Information, Events, Tips and Advice for Parents of Special Needs Children in Pennsylvania

January 2009

In This Issue

Feature Article: The "NOREP": Respond Promptly or You May Lose Important Legal Rights

From the Legal Desk: Can a School District Charge for Copies of Your Child's Records?

Food for Thought: Increasing Student Involvement in School Conferences

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Greetings!,

At EdLaw, we favor clear English. Plain talk. No ten dollar words. The kind you can understand without having to reach for a dictionary. The kind most of us use in our everyday lives.

For too many parents of special needs kids, attending a school meeting or reading through their child's school records can be a little like watching a foreign film - without the subtitles! So what's an "IEP?" What do the letters mean? What's a "NOREP?" What's an SLP? How about "specialized instruction" or "related services" or "FAPE?"

If you're like many parents, you sometimes may feel you are drowning in a sea of unfamiliar terms and concepts.

Part of the problem is the separate "languages" used by participants in the special education system. Psychologists have their own terms and concepts. Educators do, too. The special education laws are written in "legalese," of course, with sentences that sometimes seem to run in endless circles until mercifully brought to a halt by a period. Every specialty seems to have its own language. Ever try talking to a reading specialist about "phonemes?"

There's a good reason for much of the specialized language. A "percentile" has a specific and useful meaning, for example. You need to understand it in order to understand your child's evaluation report. There are lots of important terms and concepts in the different fields that you may need to learn. And you can learn them.

But too often educators, lawyers, psychologists and others forget that the "shorthand" they use is not commonly understood by others. It becomes a barrier to communication. It turns parents off when, in truth, their involvement is more important than anyone else's.

We're here to help "translate." We can help you understand what you need to know, especially your legal rights. What's a "NOREP?" Why do you need to know? We explain in this issue.

In plain English.

Sincerely,

Education Attorneys Charles and Michalisa Pugh

FEATURE ARTICLE: THE "NOREP": RESPOND PROMPTLY OR YOU MAY LOSE IMPORTANT LEGAL RIGHTS.

A. Background

1. What's a "NOREP?"

A school district cannot undertake certain activities in special education without first obtaining the parent's written permission. By federal law, for example, a district cannot do an evaluation of your child to determine if she is eligible for special education, unless you agree in writing or a hearing officer orders it. (34 CFR Section 300.300(a)). In addition, a school district may not place your child in special education without your written approval (and a hearing officer cannot order you to place your child in special education). (34 CFR Section 300.300(b)). Now, under "supplemental" federal regulations governing the "Individuals with Disabilities Education Act," which just went into effect on December 31, 2008, it also is clear that a parent has the right to withdraw her child from special education and related services, which cannot be challenged by the school district through a "due process" proceeding. (34 CFR 300.300(b)(4)).

But there are many other activities that a school district may undertake unless you disapprove the proposed action in writing and file for either mediation or a due process hearing. This article discusses those activities and the possible consequences if you do not make a timely objection, as it relates to public school children and adolescents ages 3 to 21. (Some rules may differ for infants and toddlers ages 3 and under).

This brings us to the "NOREP," a document that every parent of a special education student needs to understand. A "NOREP" is a "Notice of Recommended Educational Placement." Your child's "placement" typically is the program set forth in the "IEP" (the "Individualized Education Program"). The form now is called a "Notice of Recommended Educational Placement/Prior Written Notice ("NOREP/PWN").

Confused already? We don't blame you. Like most parents, we hate these gobbledygook abbreviations that keep popping up in special education. (Must they make it so hard to understand?) But don't get hung up on the name of the document. Just know that the NOREP is the written notice that the school district must give to parents like you when it either proposes to take a certain action concerning your child or it refuses to take an action that you have requested. The types of actions in question are shown on the NOREP form itself.

2. Taking a Closer Look

Here's a link to the updated NOREP form that all school districts in Pennsylvania should now be using: Take a quick look at it now, so you can see what we are talking about.

As you can see, the form is divided into two parts. The first seven paragraphs are to be completed by the school district, as follows:

1. a notice of the specific action taken or refused (See the boxes at paragraph 1);

2. a description of the action that the district proposes or refuses (para. 2);

3. a summary of the district's recommendations for your child's educational program (para. 3);

4. an explanation of why the district is proposing (or refusing to do) the action (para. 4);

5. a description of other options it considered and why those options were rejected (para. 5);

6. a description of each "evaluation procedure(s), assessment(s), record(s) or report(s) used as a basis for the proposed action or refusal to act (para. 6);

7. a description of other factors "relevant to the proposal or refusal" (para. 7).

The second part of the NOREP is entitled "PARENTAL CONSENT." It begins on page 2 (See the form). As shown, you have three choices. You can request a meeting at school to discuss the matter. You can approve the district's proposal (or refusal). Or you can disapprove the district's proposal or refusal. If you disapprove it, you may state why you disapprove it, and request either mediation or a due process hearing. (See the boxes at the bottom of page 2 of the form).

As discussed later on, if you as the parent don't respond within ten calendar days to the NOREP and, in some circumstances, if you don't initiate mediation or a due process hearing, the school district can proceed with whatever change it proposes to make.

3. Why Does the School District Give You a NOREP to Sign?

Like the IEP, the NOREP is a legal document. It provides a method for obtaining a parent's written approval of the IEP or other action proposed by the school district. It also provides a method for a parent to object in writing to a district's proposed action or its refusal to act in response to the parent's request. Keep in mind that in some cases the district is seeking your consent, for example, to change an IEP or reevaluate your child. In other cases, you as the parent may be requesting action from the district, such as requesting additional services or an independent evaluation of your child at public expense. So the form must provide for both situations.

The school district doesn't issue a NOREP to you as the parent because it "seems like a good idea" or it "wants to be helpful." The school district may want to be helpful, but the reason it issues a NOREP is because it is required to do so by both federal and state law. The law prescribes when the school district must issue a NOREP and what the NOREP must include. Examples of when the NOREP must be issued include when the school district wants to change how your child is classified (such as changing his classification from "Other Health Impaired" to "Emotionally Disturbed"), when it wants to reduce services in the IEP, or when your child is ready to graduate from high school.

B. Warning: Ignore the NOREP and You May Lose Your Legal Rights!

We know of no regulation or law that requires a parent to sign and return a NOREP. But we think there are good reasons to do it in most cases. It shows you are involved and cooperative. It signals that you are not to be ignored. If your case ever goes to "due process," the hearing officer may view you as the parent less favorably if there is a pattern of failing to respond to school district requests. Where appropriate, you also can add a marginal note to the NOREP when you want to "explain" or "qualify" your response, which becomes a part of the "record" (though some districts may object to it).

So we generally encourage parents to respond to the NOREP. But, as a practical matter, if you do not object to the changes the school district proposes in your child's services or to the reevaluation or other action that the school district proposes to take, the sky probably won't fall if you choose not to complete the NOREP and send it back to the district.

1. What If You Object to the District's Proposed Action or Changes?

What if you object, for example, to the district's plan to change your child's placement from the private school that the district currently is funding for your child to the neighborhood school? What if the school district proposes to move your child from the general classroom to a self-contained, special education classroom or to eliminate one-on-one reading instruction that you think is essential to allow your child to make progress? In such cases, if you want your child to continue to "stay put," to continue to receive certain services, or if you want to prevent the school district from taking an action you object to, you will need to act quickly.

It is critical to remember that with certain exceptions (discussed above), the school district generally does not need the parent's signature in order to proceed with a new placement for your child or carry out the other actions shown in the NOREP. All it needs is for you as the parent to fail to respond to the NOREP. Then it can proceed with whatever it proposes to do. So, for example, if the district proposes to eliminate your child's speech therapy, all it is required to do legally is to make the change in the IEP (at an IEP meeting) and issue a NOREP to you covering the change. If you do not object to the proposed change in the NOREP, the district will proceed with the change. You can seek to have the service restored later, either informally with the school or through mediation or "due process," but in the meantime, your child will not receive the service.

2. How Quickly Must You Act in Response to the NOREP?

The new NOREP makes clear that a parent who wishes to maintain her child's current services or prevent the school district from taking a particular action has only 10 calendar days to note her disapproval on the NOREP form and return it to the school district. (NOREP Form) (See page 3 of the form). But that's not all

Look at the note following the asterisk beginning at the bottom of page 2 (in the PDF version). It states that if you want your child to remain in his current placement, you must "request a due process hearing or mediation through the Office for Dispute Resolution [ODR] within 10 calendar days." Got that? It is important that you understand.

It's not enough just to return the NOREP form to the district showing that you object to the proposed change or action. You must also file for mediation or a due process hearing with ODR within those 10 calendar days as well, or the school district will proceed as stated. (As noted in the NOREP, this does not apply if your child has been transferred to an interim alternative setting due to involvement in a serious disciplinary incident involving possession of a gun or other weapon, drugs, or serious bodily injury, where the school district generally may make the change regardless of whether you promptly request mediation or file for due process).

3. Too Much to Do in Too Little Time!

In our view, 10 calendar days is not nearly enough time for parents who wish to preserve their child's right to remain in the current program to assess their options, consult with an education lawyer, if they so desire, and file the necessary papers with the Office for Dispute Resolution to initiate either mediation or due process. There's just too much to think about and do in too little time. Quicker and more informal alternatives should be carefully considered. Moreover, both mediation and due process can involve a great commitment of time and "aggravation." In addition, while there is no charge to parents for mediation, prosecuting a due process action can mean both expensive expert witness fees and attorney fees. So mediation or due process are not options that should be taken lightly.

Even if you are able to make the important decision to proceed with mediation or due process within the 10 calendar days allowed, great care must then be taken in preparing the mediation request or, especially, the due process complaint. How parents "frame" the issues in the mediation request or due process complaint is critical. It also is essential to "get the facts right" in the papers you file. Otherwise, parents may lose essential credibility with the mediator or hearing officer after the proceeding begins. Factual errors or strategic mistakes in the due process complaint can be the "gift that keeps on giving" to the school district's attorneys because they can use them to their clients' advantage at every opportunity at every level of the proceedings.

And there's more! Congress changed the Individuals with Disabilities Education Act (the "IDEA") effective July 1, 2005 in important ways. Congress effectively increased the amount of information that parents must supply in a due process complaint and even authorized a court to impose a financial penalty against a parent (and the parent's lawyer) for filing a "frivolous" due process complaint.

So let's face it. Parents who wish to maintain their child's current services or prevent the district from taking a particular action are placed in an almost impossible situation, if given only 10 calendar days to return the NOREP to the district and file with the Office of Dispute Resolution for either arbitration or due process.

4. The Pennsylvania Director of Special Education Weighs in.

We recently expressed our concerns regarding the NOREP in a letter to John Tommasini, the Director of the Pennsylvania Bureau of Special Education. In his reply of December 16, 2008, Mr. Tommasini reaffirmed the Department's position, under federal and state law, that a parent has 10 calendar days in which to return the NOREP and file for mediation or due process with the Office of Dispute Resolution in order to maintain the last agreed-upon placement for the child.

Mr. Tommasini added two important pieces of information. First, in response to our question as to when the "10-day clock" for responding to the NOREP begins to run, he stated that the Department "has long determined that the timeline begins to run from the date that the parents received the NOREP/PWN. PDE would calculate the ten days from the date the parent was handed the NOREP/PWN or would have received the document through the mail. Of course, the timeliness of a parental request for a hearing for [the] purpose of invoking pendency may be subject to dispute." (Letter available on request).

Remember that when calculating the time available to respond to the NOREP, you generally may exclude the day you received it. And if the 10th day falls on a weekend or legal holiday, then the response would be due on the next day school is open. For example, if the 10th day faills on a Saturday, the parent's response would be due the following Monday, unless it is a legal holiday. (1 Pa. Code Section 31.12). But there are two important points to keep in mind with deadlines like this one. First, don't wait until the last day to take action. Why take an unnecessary risk? Second, rules like these can change, so it's best to check with an education lawyer just to be safe.

Mr. Tommasini acknowledged in his letter that the requirement for parents to file a mediation request or due process complaint notice in order to preserve their child's current placement creates a problem for parents, especially in light of changes in the IDEA governing due process complaints. He noted that the Department "is investigating this issue and is planning to take action to address this need for parental guidance and assistance."

We will keep you posted, but we do not think additional assistance from the state in filing a mediation request or a due process complaint will address the real problem here, which is that 10 calendar days simply isn't enough time for parents to thoughtfully consider their options and properly file for mediation or due process with the ODR.

C. So What's a Parent to do?

So what should a parent do if a NOREP is handed to them at an IEP meeting or shows up in the mailbox one day, and they wish to prevent the school district from making the proposed change in services or taking the proposed action? Here are just a few alternatives that you could consider:

1. An ounce of prevention . . .
You know how that expression goes. We encourage our clients (and all parents of special needs kids) to be proactive in their dealings with the school. Communicate frequently. That will help you avoid "surprises" in the NOREP. Try to nip problems in the bud. If you can't resolve problems as they occur, then think in advance of other alternatives, make plans, and take action. Don't wait until the "10-day clock" starts ticking and the oncoming locomotive is only feet away!
2. Contact an education lawyer.
We're all about helping you, the parent, avoid having to hire an attorney, if you can get what your child needs at school without it. But in some situations consulting with an education attorney right away is needed. Being surprised by a NOREP that you object to, and having the 10-day clock start to run, is one such situation, in our view. We do not charge for an initial 15-minute phone consultation, so feel free to call.
3. Seek an extension of time.
In our experience, most school districts want to avoid an unnecessary arbitration or due process proceeding. Remember: it costs them time and money, too. You could seek an additional 10 or 20 days, for example, while you evaluate your options and perhaps meet again with the school to try to work out your differences. But remember that any such agreement would need to be in writing and must be specific as to what the parties are agreeing to do. It must make clear that the school district is waiving the right it otherwise would possess to proceed with the change or action within 10 calendar days. Because such an agreement must be carefully written, we think it would be wise to contact an education lawyer.
4. File a request for mediation.
As you can tell, we don't favor rash action. But if you are in a bind, and time is running out, we think it would be much faster and easier to request mediation than to file a due process complaint notice. Here is a link to both forms at the Office of Dispute Resolution website. There are far fewer formal requirements that apply to the mediation request. If you need help with the mediation request, many non-attorney education advocates are familiar with the mediation request process, have participated in person at mediations (which an attorney is not permitted to do), and can assist you to evaluate your claims and complete the form. (See our website's "Web Links" page for contact information for non-attorney, education advocates).

Of course, you might still want to check with an education lawyer because legal considerations, including legal strategy, are important in mediations as well. But we understand that for financial or other reasons, some parents may choose not to contact an attorney, and we respect that decision. In any event, filing for mediation will "stop the clock" while you evaluate your options. Remember that you can still file for due process, if you so desire, either while your mediation is pending or afterwards, if you are not satisfied with the mediator's decision.

Questions? Comments? Other ideas for how to respond to the NOREP? We like hearing from you.

FROM THE LEGAL DESK: CAN A SCHOOL DISTRICT CHARGE FOR COPIES OF YOUR CHILD'S RECORDS?

We encourage parents of special needs kids to obtain a copy of their child's education records from the school. You never know what might turn up there. Or it may include IEPs or other important records that you no longer have available at home. Organizing and keeping all of your child's important evaluations, IEPs, progress reports and other school records will help you keep track of his progress (or lack of progress) and advocate more effectively for him at school. If you don't already have those records, you can request them using the records request form at our website. Easy!

What Law Applies?

Under IDEA 2004 (the "Individuals with Disabilities Education Act"), the school district must respond to your request for records within 45 calendar days, or in less time if an IEP meeting, resolution session, or due process hearing is coming up. (If you're curious, here's a link to the federal regulation found at 34 CFR Section 300.613(a) containing the 45-day requirement). To get the records faster, you might consider volunteering to copy the records yourself using the school's copy machine, if they will agree to it and if your schedule permits. In our experience, most schools will provide the records at no cost within a few weeks of your written request.

A few school districts are less cooperative in providing the requested records. Oddly, neither IDEA 2004 nor the other federal legislation that comes into play here, the "Family Educational Rights and Privacy Act" ("FERPA") actually requires the school district to do more than allow the parent (or her representative) to "inspect and review" the records, unless the failure to produce copies "would effectively prevent the parent from exercising the right to inspect and review the records ..." (Section 300.613(b)(2)).

How Much Can the School Charge for the Copies?

May a school district charge a fee to provide the records? Answer: Yes. How much can it charge? The federal "IDEA" regulations allow school districts to charge a copy fee if it "does not effectively prevent the parents from exercising their right to inspect and review [the records] ... [but] may not charge a fee to search for or to retrieve [the] information." (Section 300.617). So what does that mean?

For comparison purposes, Pennsylvania's revised "Right to Know Law" (which went into effect on January 1, 2009), allows local agencies to charge $0.10 to $0.25 a copy. This limit would apply, for example, to a request for a school board's meeting minutes, but it is not as clear that it would apply to a parent's request for his child's education records). Personally, we don't see why a school district would charge more to copy a student's records than its school board could charge for records sought under the state "Right to Know Law" or that a local copy center like Staple's would charge, which would be closer to $0.10 a copy. After all, they aren't in business to make a profit! And keep in mind that the school district can't charge anything, unless it has adopted a written policy governing record copy charges. Also, of course, the district can't charge some parents, like parents of special needs kids, but not others, for copies of their child's records.

What Should You Do if Your School District Won't Provide Your Child's Records or Charges an Unreasonable Fee?

As mentioned, most school districts will cooperate. If yours won't, we first suggest that you meet with the principal to find out why it won't cooperate. Press for a specific reason. If they are relying on that old chestnut, "school policy," ask them for a copy of the specific section of the written policy on which they are relying. Then follow up with a polite but clear and insistent email describing what was said, and restate your request for the records, so you can build the "paper trail" that attorneys like us can review someday. And keep at it! Firmly. Consistently. Politely. Documenting all important communications.

At due process hearings, the hearing officer generally can be influenced by which side acted "reasonably" and which side didn't. "Little things" can make a big difference. So you can be quite sure that if you end up in "due process," we will make every effort to put on evidence of how the school district unreasonably refused to cooperate with your routine request for your child's records. Again, most school districts are too smart to let that happen.

But if you get to the right person at the school district, you may well be able to resolve the problem yourself. That's the goal. After all, both you and the school district have bigger fish to fry than to fight over what might be a couple hundred pages of school records.

If you can't resolve the problem with the school directly, you have other options. We like the idea of calling the "ConsultLine" operated by the Pennsylvania Office of Dispute Resolution (ODR) for parents of special needs children. In our view, the ODR generally wants to help resolve little problems before they become big problems that require lawyers, legal proceedings, agency staff, court reporters, appeals, and time, money and aggravation for everybody. So they may be able to help. If that doesn't resolve the problem, you could request a hearing under the IDEA 2004 regulations, and state that you will need the records to prepare for the hearing. (Section 300.619). Similarly (and at the same time), you can file a complaint with the U.S. Department of Education under the "FERPA" regulations. (34 CFR Section 99.63). A lawyer is not required for either of these steps, though of course some parents may feel more comfortable if they consult with an education attorney.

As you know, we favor resolving problems in the quickest, cheapest, most effective way possible. So be creative. If the district is charging more than you can afford to pay for the copies, take a portable copier or scanner to the office (if you own one) to copy the records yourself. Scanners are quite useful, so if you were thinking of buying one anyway, this might be a good time to do it. There now are "sheet-fed" portable scanners available at a reasonable price that can operate from batteries, so you wouldn't even need to plug into an electrical outlet in the school district office when you scan the records. (Yes, we're told that some school districts even have written policies covering the use of their outlets).