Text, Chapter 11, Pages and Indiana’s Procedural Safeguards MEAGHAN WHEDON, KATIE SMITH, & RACHEL COHEN Procedural Safeguards Part 1

Foundations Procedural safeguards are the rights and responsibilities of parents and schools. They are given to parents at least once a year and also upon these occasions:  Initial referral or parent’s request for evaluation;  Filing of the first complaint during the school year;  Filing of the first due process hearing during the school year;  The date the school decides to take disciplinary action that constitutes a change of placement, including removal to an interim alternative educational setting for weapons, drugs, or serious bodily injury; and  Parent’s request. 2

The Right to Be Notified: Written Notice A school must give a parent written notice when it:  Proposes to initiate or change the identification, evaluation, special education placement or anything related to providing a FAPE to your child; or   Refuses to initiate or change the identification, evaluation, special education placement or anything related to providing a FAPE to your child. 3

The Right to Be Notified: Parental Consent 7 circumstances that require parental consent: 1. Before your child is evaluated for the first time 2. Before the school can provide special education and related services. 3. Before the school reevaluated your child, unless the school can demonstrate that it has taken reasonable steps to obtain your consent but you have failed to respond 4. Before the school can access your child’s public benefits or insurance programs or private insurance proceeds. 5. Before the school can release the student’s educational records to officials of any participating agency that is providing or paying for transition services or invite to the CCC meeting a representative from any participating agency (other tha a public agency) who may be providing or paying for transition services. 6. Before the school district of legal settlement and the school district where the nonpublic (private) school is located can exchange information about a student who has been unilaterally enrolled in a nonpublic school. 7. Before the public agency representative, teacher of record, general education teacher, or instructional strategist (individual who can interprets instructional implications of the evaluation) may be excused from attending and participating in all or part of a CCC meeting. 4

The Right to Be Fully Informed: Evaluations If you suspect your child has a disability and requires special education and related services, you may request that the school conduct an initial educational evaluation of your child. A comprehensive evaluation must be conducted before the CCC can determine if a student is eligible for special education and related services. Your written consent is required before the school can conduct the evaluation. You may request that the school conduct an initial educational evaluation of your child by:  sending a signed written request to licensed school personnel (e.g., teacher, principal, guidance counselor, or school psychologist), or  making a verbal request to licensed school personnel. The initial evaluation must be conducted and the CCC convened within 50 days from the day you received your consent. If the child has participated in RTI and has not made improvement then they have 20 days from the day they receive written consent. 5

The Right to Be Fully Informed: CCC  You have the right to participate in all CCC meetings for your child until he or she reaches 18 years of age. You have the right to participate after the student turns 18 if you have obtained guardianship of or have been appointed as the educational representative for the student.  You have the right to request that the CCC meet if you believe that a required component of the student’s IEP needs to be changed to ensure the provision of a FAPE.  You have the right to have the CCC meeting scheduled at a mutually agreed upon date, time, and place.  If you want to participate, but cannot attend the CCC meeting in person, you may participate by telephone or other means. 6

The Right to Be Fully Informed: Confidentiality Family Educational Rights and Privacy Act of 1974 (FERPA), is the law that regulates confidentiality of student’s records. The right to inspect and review educational records includes the right to:   an explanation and interpretation of your child’s record from school personnel;   have other arrangements made to review and inspect, including obtaining a copy of the record, if the school’s failure to provide those copies deprives you of the opportunity to review and inspect the record;   a copy of the record if you are involved in a pending due process hearing 7

The Right to a Surrogate The IDEA regulations allow for a foster parent to have the legal standing of a parent. The law has included the requirement that the state or local educational agency (SEA or LEA) or other state agency assign a surrogate parent for educational purposes when no parent can be identified, the public agency is unable to locate a parent, or the child is a ward of the state under the laws of the particular state. If the definitions of a parent and foster parent still fail to generate a parent for the child, then the agency must assign a surrogate parent for educational purposes. 8

The Right to Dissent The law requires that the due process complaint notice include a description of the nature of the child’s problem as it relates to whatever it is that the LEA proposes or refuses to initiate or change, including all relevant facts relating to that problem, and a proposed resolution for the problem. The 2004 amendments to the IDEA added three new features within section 615.  Right to complain not only for parents but any party, including school system.  New terminology: “Due process complaint notice”  Included a statute of limitations for two years for bringing an action The due process complaint notice was added through three major notices; prior written, procedural safeguards, & due process complaint. 9

The Right to Nonadversarial Conflict Resolution The mediation provisions require that the SEAs and LEAs maintain procedures to “allow all parties to dispute”. Both the cost and the general management of the mediation function must be borne by the SEA; the law requires that the state maintain an up-to-date list of qualified mediators who are also required to be conversant in federal and state laws and regulations governing special education and related service. Using mediation to resolve disputes under the IDEA is entirely voluntary on the part of all parties.  A district cannot use it to deny or in any way delay the parents’ rights to a hearing. 10

The Right to a Hearing The IDEA has always deferred to state policy with respect to which agency the LEA or the SEA will conduct the hearing. Until 2004, IDEA referred only to the parents’ right to a due process hearing. The time line for requesting a hearing now contains a statute of limitation.  Parent must request a hearing within two years within the date the agency or parent “knew or should have known about the alleged action that forms the basis of the complaint”. 11

Burden of Proof The IDEA does not address which party carries the burden of proof when someone challenges the effectiveness of an IEP. There were four main court cases that emerged.  Kerkam v. McKenzie (1988)  Roland M. v. Concord School Committee (1991)  Oberti v. Board of Education (1993)  Clyde K. v. Puyallap (1994) 12

The Right to a Qualified, Impartial Hearing Officer In the 2004 rendered edition of IDEA it stated that: “No hearing conducted pursuant to the requirements of this paragraph shall be conducted by an employee of such agency or unit involved in the education or care of the child” In the early years, a hearing officer typically may have been a competent educator, human services provider, or other professional who was subsequently trained in the basic rules and procedures of a hearing. Not so today, now through legal expertise is the paramount qualification. 13

The Right to Appeal The IDEA regulations stipulate that a final decision shall be made by the hearing officer within 45 days of when a party filed a due process complaint. A hearing officer’s ruling shall be considered final. Since 1975, IDEA’s inception both parents and educational agencies with particular emphasis on parents have the right to pursue judicial remedy in court. 14

The Right to Reimbursement The 1986 amendment to IDEA included the right to attorneys; fees amendments to the IDEA authorized the court to award attorneys’ fee s to SEAs and LEAs when either prevails against the attorney or the parent. The parent of a child with a disability obtains favorable verdict in his or her court action.  May require the losing party (the district) to pay the cost of the parents’ attorneys throughout the appeals process. 15