ADVOCATING 4 KIDS

The Ombuds serves as an informal neutral facilitator for problem solving, assisting parents in learning how to resolve special education issues themselves. The Ombudsman acts as a source of information and referral for parents relative to special education regulatory issues; provides impartial and confidential special education technical assistance to parents; answers questions from parents relative to special education regulations and related issues; distributes special education and related publications; and makes appropriate referrals.

Settings & Use

Practice Setting(s): State-wide with training to school divisions on the role of the ombudsman.

Process Steps

The Ombuds assists in the resolution of special education regulatory concerns for parents, and acts as a liaison between parents and school divisions, serving as a communication conduit for the parties, as appropriate. The Ombuds assists parents in interpreting special education laws and regulations, recognizing and analyzing issues in an objective manner. The Ombuds consults with school division staff, staff within the Virginia Department of Education (VDOE), and other parties as needed. The Ombuds conducts informal fact-finding in order to facilitate resolution of issues, clarifies issues, and provides resolution options that conform to special education regulatory requirements. The Ombuds contacts school divisions directly for parents when necessary with the parents’ consent and consults with VDOE staff to develop cooperative strategies for informal complaint resolution for parents.

Education, Training, Skills & Experience

The Ombudsman maintains knowledge of special education statutes, regulations, policies, and procedures, local school division operations, and VDOE functions.

Research, Literature and Experience

Maintains a data system to record, analyze, and report the number and types of issues brought to the attention of the Ombudsman. Tracks and analyzes data relative to these issues and prepares reports. Identifies patterns or problem areas.

Judy Hudgins
Virginia Department of Education
www.vak12ed.edu/VDOE/dueproc/
Judy.Hudgins@doe.virginia.gov

http://www.directionservice.org/cadre/ctu/practicesA.cfm?id=62

Visit: http://pen6.pen.k12.va.us/VDOE/dueproc/HearingOfficerDecisions/decisions2002-2003.html 

to review Hearing Officer’s decisions in the state of VA.

What is a special education complaint?
A complaint is generally an expression of some disagreement with a procedure or a process regarding special education programs, procedures or services. A formal complaint is considered a request that this division investigate an alleged violation of a right of a parent and/or child with disabilities who is eligible, or believed to be eligible, for certain services based on federal and state laws and regulations governing special education.

The Office of Dispute Resolution and Administrative Services is charged with the responsibility of investigating and resolving all valid special education complaints on behalf of eligible students with disabilities when the complaint alleges a violation of the applicable state and federal laws and regulations.

PARENTAL COMPLAINT FORM :

___________________________________              ________________________

Signature (Required)                                                                       Date

Related services are developmental, corrective and other supportive services that are required to assist a child with a disability to benefit from special education. Some children need related services to meet their individually designed special education goals.

Related services can include, but are not limited to,

Audiology;

Counseling services;

Early identification and assessment of disabilities in children;

Medical services (only to diagnose or evaluate a child’s disability);

Occupational therapy;

Orientation and mobility services;

Parent counseling and training;

Physical therapy;

Psychological services;

Recreation;

Rehabilitation counseling services;

School health services (including assistance with health-related needs during the school day);

Social work services in school;

Speech-language pathology services;

Transportation.

Assistive Technology

Who provides related services?

Professionals who meet state requirements may provide related services in the area of their expertise. Paraprofessionals and assistants who are trained and supervised in accordance with State law or policy may also assist in providing these services.

Who decides which related services are right for my child?

Your child’s Individualized Education Program (IEP) team decides which related services to include in your child’s IEP. As the parent, you are an important member of this team. The IEP team gathers information from evaluations and members of the IEP team. This information is used to determine your child’s individual needs. Related services are identified to meet these needs. No related service is automatically included or denied due to your child’s disability.  Qualified service providers for proposed related services can also be important members of the IEP team

Dated February 9, 2007

Dr. Kris Christiansen

Assistant Superintendent of Special Education and Related Services

Washoe County School District, Student Support Services

P.O. Box 30425

Reno, Nevada 89520-3425

Dear Dr. Christiansen:

Thank you for your recent letter to the Office of Special Education Programs (OSEP) in which you forwarded to my attention a letter submitted initially to this office dated May 10, 2005.  I apologize for the delay in responding.  You are asking for clarification under Part B of the Individuals with Disabilities Education Act (Part B) regarding whether a Functional Behavior Assessment (FBA) always triggers the procedural safeguards applicable to an evaluation or an independent educational evaluation (IEE) and whether parent consent is required prior to conducting an FBA.

In your May 10, 2005 letter, you reference an OSEP letter to Montana attorney Jennifer L. Scheinz dated June 7, 2000, in which OSEP responded, based on the situation posed by Ms. Scheinz’s query, that an FBA conducted subsequent to the initial evaluation was a reevaluation, and that a parent was entitled to an IEE under applicable regulations if the parent disagreed with the child’s FBA.  On the other hand, you point out that the clarification provided in OSEP’s 22nd Annual Report to Congress on the Implementation of the IDEA and in Technical Assistance Guide #1, suggests that an FBA is a teaching methodology, which requires ongoing data collection to determine the effectiveness and efficiency of the behavior support plan.”  See OSEP Center on Positive Behavioral Interventions and Supports, Applying Positive Behavioral Supports and Functional Behavioral Assessments in Schools, 9, 17 (1999).’

Your May 10, 2005 letter also makes reference to the U.S. Supreme Court’s decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44 (1984), and you ask to which OSEP interpretation your School District should give deference.  As explained below, we do not believe that the Scheinz letter and the TAG are in conflict.^[1]

If an FBA is used to evaluate an individual child in accordance with 34 CFR §§300.304 through 300.311 to assist in determining whether the child is a child with a disability and the nature and extent of special education and related services that the child needs, it is considered an evaluation under Part B and the regulation at 34 CFR §300.15.  Parental consent, consistent with 34 CFR §300.300(a) and (b), is required for an FBA conducted as an individual evaluation or reevaluation.  If the FBA is conducted for individual evaluative purposes to develop or modify a behavioral intervention plan for a particular child, under 34 CFR §300.502, a parent who

disagrees with the child’s FBA would have the right to request an IEE at public expense.  These regulatory provisions are consistent with the policy clarification provided in the Scheinz letter.

In contrast, the excerpt from the TAG reproduced in the 22nd Annual Report to Congress on the Implementation of the IDEA provides technical assistance for public agency personnel who wish to utilize positive behavioral supports and FBAs as methodologies within the agency’s schools to improve the behavior of all students in the schools.  The TAG is a compilation of research that reflects the opinions of the authors and does not necessarily reflect the views of the U.S. Department of Education.  The purpose of the FBA is summarized in the TAG as “a process of understanding behavior in the context in which it is observed and of guiding the development of positive behavioral interventions that are relevant, effective, and efficient.  FBA is a best and preferred practice for all challenging behavior, not just for behavioral events that result in suspensions or other disciplinary actions” TAG #1, at 9.

The TAG does not state that parental consent would not be required for an FBA conducted as “a best and preferred practice for all challenging behavior,” as your letter suggests.  However, we believe that if the FBA is intended to assess the effectiveness of behavioral interventions in the school as a whole, the parental consent requirements in 34 CFR §300.300(a) and (c) generally would not be applicable to such an FBA because it would not be focused on the educational and behavioral needs of an individual child.  If an FBA is used, for example, in the context of
positive behavior supports as a process for understanding problem behaviors within the entire school and to improve overall student behavior in the school, it generally would not be
considered an evaluation that would require parental consent, unless such consent is required from the parents of all children in the school prior to conducting such an evaluation.  34 CFR §300.300(d)(1)(ii).

Your letter also asks:  “If the IEP [individualized education program] team has developed appropriate goals and objectives, and specially designed instruction and wish to complete an FBA to determine the effectiveness of the teaching methods and positive behavioral supports used for the student to make progress towards IEP goals/objectives, is this considered an assessment, therefore requiring parental consent?”