Special Education Rights
Under the Individuals with Disabilities
Education Act, Part B
Notice of Procedural Safeguards – March 2000
Note: The term school district is used throughout this document to
describe any public education agency responsible for providing your
child’s special education program. The term assessment is used to
mean evaluation.
What are procedural safeguards?
This information provides you as parents, legal guardians, and surrogate
parents of children with disabilities from 3 years of age through
age 21 with an overview of your educational rights, sometimes called
procedural safeguards. This information is your Notice of Procedural
Safeguards as required under the Individuals with Disabilities Education
Act (IDEA). This notice is also provided for students who are entitled
to these rights at age 18.
(20 USC 1415:EC 56321)
What is the IDEA?
The IDEA is a federal law that requires school districts to provide
a free appropriate public education to eligible children with disabilities.
"A free appropriate public education" means special education
and related services are to be provided as described in an individualized
education program (IEP) and under public supervision to your child
at no cost to you.
Can I participate in decisions
about my child’s education?
You have the right to refer your child for special education services.
You must be given opportunities to participate in any decision-making
meeting regarding your child’s special education program. You have
the right to participate in IEP meetings about the identification
(eligibility), assessment, educational placement of your child and
other matters relating to your child’s free appropriate public education.
(20 USC 1414 b,c,d, and f; EC 56341 b, 56343 c)
You also have the right to participate in the development of the
IEP and to be informed of the availability of free appropriate public
education, including all program options and of all available alternative
programs, both public and nonpublic.
(EC 56321, 56301, 56506)
Where can I get more help?
When you have a concern about your child’s education, it is important
that you call or contact your child’s teacher or administrators to
talk about your child and any problems you see. Staff in your school
district or special education local plan area (SELPA) can answer questions
about your child’s education, your rights, and procedural safeguards.
When you have a concern, this informal conversation often solves the
problem and helps to maintain open communication. Additional resources
are listed at the end of this document to help you understand the
procedural safeguards.
Notice, consent, assessment & access
Prior Written Notice
When is notice needed?
The school district must inform you about proposed evaluations of
your child in a written notice that is understandable and in your
native language or other mode of communication, unless it is clearly
not feasible to do so. This notice must be given when the school district
proposes or refuses to initiate a change in the identification, assessment,
or educational placement of your child with special needs or the provision
of a free appropriate public education.
(20 USC 1415 b,: EC 56329,56506 a)
When will I be notified?
The Notice Of Procedural Safeguards must be given to you:
- When you ask for a copy;
- The first time your child is referred for a special education
assessment;
- Each time you receive a written notice of an IEP meeting for your
child (including IEP meetings held regarding disciplinary actions);
- Each time your child is reassessed;
- Each time you request mediation; and
- Each time you request a due process hearing.
(20 USC 1415 d; EC 56301, 56321, 56500,3 k, 56506
a)
What will the notice tell me?
The Prior Written Notice must include the following:
- A description of the actions proposed or refused by the school
district;
- An explanation of why the action was proposed or refused;
- A description of any other options considered and the reasons
those options were rejected;
- A description of each assessment procedure, test, record or report
used as a basis for the action proposed or refused.
- A description of any other factors relevant to the action proposed
or refused; and
- A statement that parents of a child with a disability are protected
by the procedural safeguards.
If the notice is not in regard to an initial referral for assessment,
the notice must provide a statement that you have protection under
procedural safeguards; information on how you can obtain a copy of
described procedural safeguards; and sources of additional assistance
in understanding the procedural safeguards.
Parent Consent
When is my approval required?
You must give informed, written consent before your child’s first
special education assessment can proceed and before the school district
can provide your child’s special education program. In the case of
reevaluations, the school district must document reasonable attempts
to obtain your consent. If you as the parent do not respond to these
attempts, the school district may proceed with the reevaluation without
your consent.
(EC 56321 c, 56346, 56506 e; 20 USC01414 a,c)
Surrogate Parent Appointment
What if the parent cannot be identified or located?
School districts must ensure that an individual is assigned to act
as a surrogate parent for the parents of a child with disability when
a parent cannot be identified and the school district cannot discover
the whereabouts of a parent. A surrogate parent may also be appointed
if the child in an adjudicated dependent or ward of the court under
the state Welfare and Institution Code and the child is referred to
special education or already has an IEP.
(20 USC 1415 b; EC 56050)
Nondiscriminatory Assessment
How is my child assessed for special education services?
You have the right to have your child assessed in all areas of suspected
disability. Materials and procedures used for assessment and placement
must not be racially, culturally, or sexually discriminatory. Assessment
materials must be provided and the test administered in your child’s
native language or mode of communication, unless it is clearly not
feasible to do so. No single procedure can be the sole criterion for
determining eligibility and enveloping an appropriate educational
program for you child.
(20 USC 1414 a, b; EC56001 j and 56320)
Independent Educational Assessments
Can my child be tested independently at the district’s expense?
If you disagree with the results of the assessment conducted by the
school district, you have the right to ask for and obtain an independent
educational assessment for you child form a person qualified to conduct
the assessment at public expense. The school district must respond
to your request for an independent educational assessment and provide
you information upon request about where to obtain an independent
educational assessment.
If the school district disagrees that an independent assessment is
necessary, the school district must request a due process hearing
to prove that its assessment was appropriate. If the district prevails,
you still have the right to an independent assessment but not at public
expense. The IEP team must consider independent assessments.
(20 USC 1415; EC 56506 c, and 56329 b; 34 CFR 300.502)
Access to Educational Records
Can I examine my child’s educational records?
You have a right to inspect and review all of your child’s education
records without unnecessary delay including prior to a meeting about
your child’s IEP or before a due process hearing. The school district
must provide you access to records and copies if requested, within
five days after the request has been made orally or in writing.
(20 USC 1415 b; EC 56501,56504 and 49069)
How disputes are resolved
Due Process Hearing
When is a due process hearing available?
You have the right to request an impartial due process hearing regarding
the identification, assessment, and educational placement of your
child or the provision of a free appropriate public education. The
request for a due process hearing must be filed within three years
from the date you knew or had reason to know of the facts that were
the basis for the hearing request.
(20 USC 1415[a] [b]; EC 56501, 56505 [j], and 56043
[p]).
Mediation and Alternative Dispute Resolution
Can I request mediation or an alternate way to resolve the dispute?
You may ask the school district to resolve disputes through mediation
or alternative dispute resolution (ADR), which is less adversarial
than a due process hearing. ADR and mediation are voluntary methods
of resolving a dispute and may not be used to delay your right to
a due process hearing. The parents and the school district must agree
to try mediation before mediation is attempted. A mediator is a person
who is trained in strategies that help people come to an agreement
over difficult issues.
(20 USC 1415 [e]; EC 56500.3)
Due Process Rights
What are my due process rights?
You have a right to:
- Have a fair and impartial administrative hearing at the state
level before a person who is knowledgeable about the laws governing
special education and administrative hearings
(EC 56501 [b]);
- Be accompanied and advised by an attorney and/or individuals
who have knowledge about children with disabilities
(EC 56505 [e]; 20 USC 1415 [h]);
- Present evidence, written arguments, and oral arguments
(EC 56505[e]);
- Confront, cross-examine, and require witnesses to be present
(EC 56505 [e]);
- Receive a written or, at the option of the parent, an electronic
verbatim record of the hearing, including findings of fact and decisions
(EC 56505 [e]; 20 USC 1415 [h]);
- Have your child present at the hearing
(EC 56501 [c]);
- Have the hearing be open or closed to the public
(EC 56501 [c]);
- Be informed by the other parties of the issues and their proposed
resolution of the issues at least ten calendar days prior to the
hearing
(EC 56505 [e] and 56043[s]; 20 USC 1415 [b]);
- Receive a copy of all documents, including assessments completed
by that date and recommendations, and a list of witnesses and their
general area of testimony within five business days before a hearing
(EC 56505 [e] and 56043 [t]);
- Have an interpreter provided
(CCR 3082 [d]);
- Request an extension of the hearing timeline
(EC 56505 [f]);
- Have a mediation conference at any point during the due process
hearing
(EC 56501 [b]); and
- Receive notice from the other party at least ten days prior to
the hearing that it intends to be represented by an attorney
(EC 565-7 [a]).
Filing a written due process complaint
How do I request a due process hearing?
You need to file a written request for a due process hearing. You
or your representative need to submit the following information in
your request:
- Name of the child;
- Address of the residence of the child;
- Name of the school the child is attending; and
- A description of the nature of the problem(s) and a proposed
resolution of the problem(s).
State law requires that either party filing for a due process hearing
must provide a copy of the written request to the other party
(20 USC 1415 [h]; EC 56502 [a]).
After a written request is filed, a due process hearing is immediately
scheduled, including any mediation conference, and must be completed
within 45 days of the request, with a written, final decision provided.
(EC 56505 [f])
Does my child’s placement change
during the proceedings?
The child involved in any administrative or judicial proceeding must
remain in the current educational placement unless you and the school
district agree on another arrangement. If you are applying for initial
admission to a public school, your child will be placed in a public
school program with your consent until all proceedings are completed.
(20 USC 1415 [j]; ED 56505 [d] and [I])
Can the decision be appealed?
The hearing decision is final and binding on both parties. Either
party can appeal the hearing decision by filing a civil action in
state or federal court within 90 days of the final decision.
(20 USC 1415 [I]; EC 56505 [g] and [I]; EC 56043
[u])
Who pays for my attorney’s fees?
In any action or proceeding regarding the due process hearing, the
court, in its discretion, may award reasonable attorneys’ fees as
part of the costs to you as parent of a child with a disability if
you are the prevailing party in the hearing. Reasonable attorneys’
fees may also be made following the conclusion of the administrative
hearing with the agreement of the parties.
(20 USC 1415 [I]; EC 56507 [b])
Fees may be reduced if any of the following conditions prevail:
- The court finds that you unreasonably delayed the final resolution
of the controversy;
- The hourly attorneys’ fees exceed the prevailing rate in the
community for similar services by attorneys of reasonably comparable
skill, reputation, or experience;
- The time spent and legal services provided were excessive; or
- Your attorney did not provide to the school district the appropriate
information in the due process complaint.
Attorneys’ fees will not be reduced, however, if the court finds
that the state or the school district unreasonably delayed the final
resolution of the action or proceeding or there was a violation of
this section of law.
(20 USC 1415 [I])
Attorneys’ fees may not be awarded relating to any meeting of the
IEP team unless an IEP meeting is convened as a result of a due process
hearing proceeding or judicial action. Attorney fees may also be denied
if you reject a reasonable settlement offer made by the district/public
agency ten days before the hearing begins and the hearing decision
is not more favorable than the settlement offer.
(20 USC 1415 [d])
School discipline & placement procedures
for students with disabilities
School Discipline
Can my child be suspended or expelled?
Children with disabilities may be suspended or placed in other alternative
interim settings or other settings to the extent these options would
be used for children without disabilities.
If a child exceeds ten days in such a placement, and IEP meeting
must be held to determine whether the child’s misconduct is caused
by the disability. This IEP meeting must take place immediately, if
possible, or within ten days of the school district’s decision to
take this type of disciplinary action.
(20 USC 1415 [k])
As a parent, you will be invited to participate as a member of this
IEP team. The school district may be required to develop an assessment
plan to address the misconduct or, if your child has a behavior intervention
plan, review and modify the plan, as necessary. If the IEP team concludes
that the misconduct was not a manifestation of your child’s disability,
the school district may take disciplinary action, such as expulsion,
in the same manner as it would for a child without disabilities.
If you disagree with the IEP team’s decision, you may request an
expedited due process hearng from the California Department of Education’s
Special Education Hearing Office.
(20 USC 1415 [k])
Alternative Interim Educational Settings
Can my child be placed in an alternative interim educational setting
for disciplinary purposes?
Federal law allows the use of alternative educational placements
under certain disciplinary circumstances. However, state law regarding
the "stay put" provision described above overrides federal
law regarding the use of alternative educational placements. Consequently,
school personnel in California do not have the right to make 45-day
placements for disciplinary purpses unless the parent agrees or there
is a court order to do so.
(20 USC 1415 [j] [k] [l])
Regardless of the setting, the school district must continue to provide
a free appropriate public education for your child. Alternative educational
settings, when permissible, must allow the child to continue to participate
in the general curriculum and ensure continuation of services and
modifications detailed in the IEP.
(20 USC 1415 [k])
Children Attending Public School
When is reimbursement required for private school tuition?
Children who are enrolled by their parents in private school may
participate in publicly funded special education programs. While school
districts have the clear responsibility to offer a free appropriate
education to students with disabilities, recent changes to federal
law have significantly limited the school district’s responsibility
to provide services to students whose parents have chosen for them
to attend private schools. Federal law limits the amount that school
districts may spend for these services to a proportionate share of
federal IDEA funds. Parents are entitled to reimbursement for costs
associated with the private school placement only if a court or hearing
officer determines that the public agency had not made a free appropriate
public education available to the child.
(20 USC 1412 [a]; EC 56175; 34 CFR 300.453)
When may reimbursement be reduced or denied?
The court or hearing officer may reduce or deny reimbursement if
you did not make your child available for an assessment upon notice
from the school district before removing your child from public school.
You may also be denied reimbursement if you did not inform the school
district that you were rejecting the special education placement proposed
by the school district and fave notice of your concerns and intent
to enroll your child in a private school at public expense.
Your notice to the school district must be given either:
- At the most recent IEP meeting you attended before removing your
child from the public
- School; or
- In writing to the school district at least ten business days (including
holidays) before removing your child from the public school.
(20 USC 1412 [a]; EC 56174, 56176)
When can reimbursements be reduced or denied?
A court or hearing officer may not reduce or deny reimbursement to
you if you failed to notify the school districts for any of the following
reasons:
- Illiteracy and inability to write in English;
- Giving notice would likely result in physical or serious emotional
harm to the child;
- The school prevented you from giving notice; or
- You had not received a copy of this Notice of Procedural Safeguards
or otherwise been informed of this notice requirement.
(20 USC 1412 [a]; EC 56177 [a] [b] [c] [d])
IF YOU NEED TO FILE A COMPLAINT
Please contact your local state Department of Education, Special
Education Division.
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