1 PROCEDURAL DUE PROCESS

2 Texas Education Agency provides Notice of Procedural Safeguards Rights of Parents of Students with Disabilities Download this at – – PROCEDURAL DUE PROCESS

3 MAJOR COMPONENTS OF DUE PROCESS –Prior notice –Parent consent –ARD/IEP committee meeting –Rights related to identification and referral –Rights related to evaluation and reevaluation –Independent educational evaluation –Rights related to discipline

4 MAJOR COMPONENTS OF DUE PROCESS CONT. –Rules on confinement, restraint and time-out –Rights related to accessing records –Private schools –Transfer of rights for adult student –Surrogate parent

5 MAJOR COMPONENTS OF DUE PROCESS CONT. –Mediation –TEA complaint investigations –Impartial due process hearing

6 WRITTEN NOTICE Parent must be notified at least five school days in advance when the school is considering making certain decisions or taking certain actions Notice must be written Notice must be translated into native language or other mode of communication

7 WRITTEN NOTICE CONT. School must give written notice before it takes or refuses to take any action to: –Identify child as a student who needs special education –Evaluate child –Placement of child in special ed program –Change placement –Change services

8 PARENT CONSENT Consent is written permission – information must be provided in native language Parents give consent for –Initial evaluation –Initial placement –Reevaluation

9 RIGHTS RELATED TO IDENTIFICATION AND REFERRAL Written notice before initial evaluation Information will be gathered Evaluation is part of FAPE and at no cost to the parent If parent refers and school refuses to evaluate, the school must give written notice that includes the reasons why

10 RIGHTS RELATED TO EVALUATION AND REEVALUATION School must give written notice and obtain written consent Parent receives a copy of the report For reevaluation, the ARD committee must determine the scope of the reevaluation at least every three years School must obtain written consent for reevaluation

11 EVALUATION CONT. School must use a variety of evaluation tools and strategies School may not use evaluation materials or procedures that are biased against the child because of race, culture, language or disability Must be administered in the native language

12 INDEPENDENT EDUCATIONAL EVALUATION If parent disagrees with the school’s evaluation, they may request an IEE School must pay for the IEE or request a due process hearing to prove their evaluation is appropriate Parent always has the right to an IEE at their expense The ARD committee must review and consider the IEE

13 ARD COMMITTEE MEETINGS Parent does not have to attend ARD meetings but must be invited Must send written notice at least 5 school days in advance of ARD meeting Meeting must take place at a time and place that’s mutually agreed to An interpreter must be provided if parent has a hearing impairment or different native language

14 ARD COMMITTEE MEETINGS CONT. ARD must meet at least once/year If parent disagrees with ARD, the school must offer to recess the meeting for no more than 10 school days After that, if school and parent still disagrees, school must implement the IEP that it determines is appropriate

15 ARD COMMITTEE MEETINGS CONT. The school must give written notice that this will happen The parent may write their own statement to include in the ARD Parent may then request mediation, file a complaint with TEA or request a due process hearing

16 MEDIATION Option to resolve disagreements between school and parent No cost to parent or school TEA assigns a mediator If school and parent reach agreement, a contract is signed by both

17 TEA COMPLAINT Parent may file a complaint with TEA – this states the violations that occurred and the facts on which the complaint is based upon TEA has 60 calendar days to investigate and provide a written decision

18 IMPARTIAL DUE PROCESS HEARING Legal process that is similar to a civil court hearing Hearing officer (similar to a judge) hears evidence from all parties and makes a binding decision Before a parent sues school in court, they must participate in a due process hearing

19 IMPARTIAL DUE PROCESS HEARING CONT. At the due process hearing, the parent has the right to – –Bring and be advised by their attorney –Present evidence, and confront, cross-examine and require attendance of witnesses –Have each session conducted at a time and place that is reasonably convenient –Obtain written or electronic verbatim record of the hearing –Obtain written or electronic findings of facts and decisions

20 IMPARTIAL DUE PROCESS HEARING CONT. TEA must ensure that a final hearing decision is reached and mailed to the parties within 45 calendar days after the receipt of request for the hearing Hearing officer may grant a specific extension for a good reason Decision of hearing officer is final, unless a party appeals to state or federal court

21 IMPARTIAL DUE PROCESS HEARING CONT. Child must generally remain in the education placement during due process hearing – unless disciplinary issue or school and parent agree otherwise This is called stay-put

22 IMPARTIAL DUE PROCESS HEARING CONT. If parent is prevailing party, the judge may order the school to pay for their attorney’s fees and related costs

23 RULES ON CONFINEMENT, RESTRAINT, AND TIME-OUT State law prohibits schools from confining students with disabilities Child cannot be locked in room, closet or other designated space One exception - if child brings a weapon and confinement is necessary to prevent harm to self or others

24 RULES ON CONFINEMENT, RESTRAINT, AND TIME-OUT CONT. Restraint – use of physical force or mechanical device to restrict the child’s free movement. Can only be done in an emergency that involves the threat of serious harm to child or others or threat of serious property damage

25 RULES ON CONFINEMENT, RESTRAINT, AND TIME-OUT CONT. School must try to notify the parent on the day the restraint is used Written notice of the restraint must also be provided to the parent

26 RULES ON CONFINEMENT, RESTRAINT, AND TIME-OUT CONT. Time-out – child cannot be placed in a locked setting and cannot be physically prevented from leaving time-out

27 RIGHTS RELATED TO ACCESSING RECORDS Parents have the right to review all educational records Records must be made available within 45 calendar days -- earlier if an ARD is scheduled School may not charge a fee to search or to retrieve any education record – a fee may be charged for copying

28 RIGHTS RELATED TO ACCESSING RECORDS CONT. School must keep records of everyone (except parent and authorized employees of the school) who reviews the child’s records

29 AMENDING RECORDS Parent may request the school to correct (amend) information they believe is inaccurate, misleading or violates the rights of the child School must decide whether to amend the information If the school refuses, the parent must inform the parent of the refusal and the right to a records hearing

30 AMENDING RECORDS CONT. If parent requests a hearing, the school arranges and schedules this This is not a due process hearing After the hearing, if the school refuses to make the corrections, the parent must be informed and may place a statement in the child’s education records

31 PRIVATE SCHOOLS Parents have the right to place their child in a private school (including home schools) If this happens, child is not entitled to FAPE Some special education services may be available to the child – type and amount is determined by the school district

32 PRIVATE SCHOOLS CONT. School districts are not required to pay for the private school if they have an appropriate special education program for the child Parent can request a due process hearing to challenge this

33 TRANSFER OF RIGHTS At the age of 18, the child becomes an adult All rights transfer to the adult student at that time If parent wants to retain rights, they must obtain guardianship

34 SURROGATE PARENT If the school cannot identify or find a parent of a child, they must assign a surrogate parent This person represents the child in all matters relating to identification, evaluation, educational placement and the provision of FAPE to the child

35 DISCIPLINE ISSUES Discipline issues are complex – see next video and powerpoint presentation

36 PROCEDURAL DUE PROCESS