Procedural Safeguards for Parents What Educators Should Know Michelle Mobley NELA Cohort III

Objectives: Teachers will identify procedural safeguards. Teachers will gain knowledge of procedural safeguards to ensure a free appropriate public education for individuals with disabilities.

Purpose The IDEA requires schools to provide parents of a child with a disability a notice containing a full explanation of the Procedural Safeguards (legal rights) available under the IDEA and the accompanying federal regulations.

The Individuals with Disabilities Education Improvement Act of 2004 (IDEA) is the federal law and Article 9, Section 115C of the North Carolina General Statutes is the State law concerning the education of students with disabilities. Part B of the IDEA refers to the part of the law for children with disabilities who are ages three (3) through 21. Law

NC Procedural Safeguards (a) General. The State must ensure that each LEA in the State meets the requirements of NC through NC (b) Procedural safeguards identified. Children with disabilities and their parents must be afforded the procedural safeguards identified in paragraph (a) of this section. (Authority: 20 U.S.C. 1412(a)(6)(A); 34 CFR )

The numbers listed after each heading in the document refer to the sections for the legal citation in the federal regulations. The numbers after some of the sub-headings refer to the legal citations in the NC Policies Governing Services for Children with Disabilities (Policies) where you can find the information.

Handbook on Parents’ Rights LEAs are responsible for providing the Handbook on Parents’ Rights or Procedural Safeguards to parents once a school year and at: Initial referral for evaluation; Upon parent request for an additional copy; Upon receipt of the first state complaint or first due process petition for a hearing within the school year; In accordance with discipline removals that constitute a change in placement; and Upon any revision. LEA may place a current copy of the procedural safeguards on its internet website

13 Rights of Children with Disabilities and their Parents 1. Parent Consent 2. Prior Written Notice 3. IEE 4. Confidentiality and Access to Records 5. Unilateral Placement-Private at Public Expense 6. Availability of Mediation 7. State Complaint Procedures 8. Filing a Due Process Petition 9. Hearings on Due Process Petitions 10. State-Level Appeals 11. Civil Actions 12. Attorney Fees 13. Disciplinary Procedures

1. PARENTAL CONSENT 34 CFR § NC

Consent for Evaluation and Reevaluations ➡ Parents must be notified and give written permission before the LEA can evaluate for special education and related services. ➡ Giving permission to evaluate does not mean parents have given permission for special education services. ➡ If the IEP Team decides a student needs any testing for a reevaluation and parents do not respond to requests for their permission, the school can test the student without parental permission. DEC 2

➡ After the evaluation process, the parents must give written permission before the student can receive special education and related services for the first time. ➡ If parents do not give written permission for the student to receive special education after the initial evaluation, the LEA cannot use medication or due process to provide the services without permission. ➡ Parent’s cannot file a State complaint or a due process complaint against the LEA for failing to provide FAPE, if the parent did not give permission to receive special education services. DEC 6 Parental Consent for Services

2. PRIOR WRITTEN NOTICE 34 CFR § NC

DEC 5 Must give to parent before changing or refusing to change child’s identification, evaluation, educational placement, or provision of FAPE. Must describe proposed action(s), rejected action(s) and explain why for each. Must describe other option(s) considered, rejected and why rejected. Must describe each source of data used as the basis of the decision(s). Must inform parent of procedural safeguards and timeline for statute of limitations (1 year) Prior Written Notice

3. INDEPENDENT EDUCATIONAL EVALUATIONS (IEE) 34 CFR § NC

★ If parents disagree with school’s evaluation results, they can ask the LEA to pay for an Independent Educational Evaluation. ★ Parents must tell school staff which assessments they disagree with and those are the only ones the LEA must pay for when requesting an IEE. Parents do not have to tell the LEA why they disagree with its evaluation. ★ If parents request an IEE, the LEA has to decide if it will pay for it or file a due process petition to show that its evaluation is appropriate. If the judge decides the LEA’s evaluation is appropriate, then the LEA does not have to pay for an IEE.

The IEP Team must consider the results of all IEEs that meet the LEA’s criteria when making decisions. This would include outside evaluations paid for by the parents.

4. ACCESS TO RECORDS 34 CFR §§ NC

The LEA must keep detailed records of the times it has tried to contact the parent about giving written permission for an evaluation or to provide special education and related services.

★ Parents have the right to be told by NCDPI how information on their child will be used and kept confidential by the State. ★ The LEA must not delay parents review of their child’s educational records and must let them review records before any IEP meeting or due process hearing. The LEA must let parents review the records within 45 days of request. ★ Parents have the right to review their child’s educational records, ask for an explanation of any records they do not understand, ask for copies if they cannot go to the school to review the records, and have someone who represents them review their child’s records.

★ The school must document who can see a student’s record. If someone else reviews a student’s record then that person must sign and date a form, and write why he/she reviewed the record. ★ The LEA must get written permission (release of information) before it can give information that identifies a student to people not employed by the LEA.

The LEA must keep your child’s records confidential and keep a list of all employees who can review your child’s records without written permission.

5. REQUIREMENTS FOR UNILATERAL PLACEMENT OF CHILDREN WITH DISABILITIES BY THEIR PARENTS IN PRIVATE SCHOOLS AT PUBLIC EXPENSE 34 CFR § NC through NC

If the LEA made a FAPE available to a student and parents decided to enroll their child in a private school, then the LEA is not required to pay for the private school. The LEA where the private school is located may provide some services through a private school service plan if those services are part of the services the LEA provides to parentally placed private school students. If parents decide to enroll their child with a disability in a private school and ask the LEA to pay, parents must have told school officials at the last IEP Team meeting they attended or 10 business days before withdrawing their child that they were going to enroll their child in a private school. Parents must have also told school officials what their concerns were about the public school program.

6. AVAILABILITY OF MEDIATION 34 CFR § NC

Parents and/or the LEA may request mediation any time they and the LEA cannot resolve a dispute.

The procedures must ensure that the mediation process: Is voluntary on parent part and the LEA’s part; Is not used to deny or delay parent’s right to a due process hearing, or to deny any other rights parents have under IDEA; and Is conducted by a qualified and impartial mediator who is trained in effective mediation techniques.

7. STATE COMPLAINT PROCEDURES 34 CFR § NC

A State complaint is a signed written statement that alleges a school or local educational agency is not following special education law and regulations found in IDEA, Article 9 of Section 115C in the NC General Statutes. This statement is a formal request for the EC Division to investigate the allegation(s) of noncompliance. state complaint - A State complaint is a signed written statement that alleges a school or local educational agency is not following special education law and regulations found in IDEA, Article 9 of Section 115C in the NC General Statutes. This statement is a formal request for the EC Division to investigate the allegation(s) of noncompliance.

Parents must file a complaint within one year of the date they believe the school did not follow federal regulations, Article 9, or the Policies. Timeline for completing

8. FILING A DUE PROCESS PETITION 34 CFR §§ – NC NC

Note: IDEA uses the term due process complaint. North Carolina uses due process petition. Due process petition is a form that is filed with the Office of Administrative Hearings and the Superintendent or EC Director of the local LEA.

9. HEARINGS ON DUE PROCESS PETITIONS 34 CFR § NC NC and NC

10. STATE-LEVEL APPEALS 34 CFR § NC NC

11. CIVIL ACTIONS 34 CFR § NC

12. ATTORNEYS’ FEES 34 CFR § NC

13. DISCIPLINARY PROCEDURES 34 CFR §§ – NC

✦ School personnel may take into consideration the type of disability a student has, the intent of the action(s), and other unique things about the student and/or the circumstances, but they are not required to do this. Removing a student for more than 10 school days in a row is a change in placement.

The day school personnel decide a disciplinary removal is a change in placement parents must be given notice and the Procedural Safeguards (this document). School personnel may use form DEC 5a to serve as the notice and the invitation to the manifestation determination meeting.

If school personnel decide to change a student’s placement because of behavior, parents and appropriate members of the IEP Team must meet to decide if the behavior was caused by your child’s disability or a direct result of the school not following the IEP. This is called a manifestation determination meeting.

If the behavior is a manifestation of the student’s disability, his/her behavior must be assessed unless it has already been assessed and the IEP Team must develop a behavioral intervention plan (BIP). If the student already has a BIP, then the IEP Team must review the BIP and change it if necessary to address the specific behavior. If the behavior is a manifestation of the student’s disability, he/she must return to the previous educational placement unless parents and the LEA agree to change the placement using the IEP process.

If the behavior is not a manifestation of the student’s disability and nondisabled children are removed for the same type of behavior, then the student can be removed, but the LEA must provide services. The IEP Team decides where the services will be provided.

IEP Team Members IEP Team Members

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