Parent and Adult Student Rights and Procedural Safeguards for Special
Education
(English version)
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Information
GENERAL RIGHTS
| 1. |
All
children with disabilities have the right to a free appropriate public education. |
| 2. |
All
children with disabilities have the right to placement in the least restrictive learning
environment which offers maximum interaction with nondisabled peers. |
| 3. |
A
copy of the procedural safeguards notice shall be given to the parents of a child with a
disability at a minimum upon initial referral for evaluation, upon each notification of an
Individualized Education Program (IEP) Team meeting, upon reevaluation of the child and
upon receipt of a request for due process. |
| 4. |
The
procedural safeguards notice shall include a full explanation of the procedural
safeguards, written in the native language of the parent unless it clearly is not feasible
to do so, and written in an easily understandable manner. If the native language or other
mode of communication of the parent is not a written language, the notice is to be
translated orally or by other means to the parent in his or her native language or other
mode of communication. The local education agency shall take steps to ensure that the
parent understands the content of the notice and shall ensure that written evidence exists
that these requirements have been met. |
| 5. |
Parents
have the right to participate in meetings with respect to the identification, evaluation,
and educational placement of their child, and the provision of a free appropriate public
education. |
RIGHTS RELATED TO EVALUATION
AND ASSESSMENT
| 6. |
Parents
have the right to initiate a referral of their child for special education services after
other resources of the general program have been considered and, where appropriate. |
| 7. |
Parents
must give their written consent for an initial evaluation to determine if their child
qualifies as a child with a disability and for conducting reevaluations for the revision
of the child's IEP. |
| 8. |
If
a parent refuses to provide consent for an evaluation, the local education agency may
continue to pursue an evaluation by utilizing the mediation and due process procedures
described later in this document. |
| 9. |
Testing
and evaluation materials and procedures for evaluation and placement of children with
disabilities will be selected and administered so as not to be racially, culturally or
sexually discriminatory. Such materials or procedures shall be provided and administered
in the child's native language or mode of communication, unless clearly not feasible, and
no single procedure shall be the sole criterion for determining an appropriate educational
program for a child. |
| 10. |
The
parent shall be given, in writing, a proposal assessment plan within 15 calendar days of
the referral for assessment, not counting days between school sessions or days of school
vacation in excess of 5 school days, from the date of receipt of the referral unless there
is written parental agreement to an extension. Assessment plans shall be developed within
10 days after the start of the new regular school year when a referral was made 10 days or
less prior to the end of the regular school year. For pupil school vacations, the 15 day
time starts again when the regular school year reconvenes. |
| 11. |
The
assessment plan shall be provided in the native language of the parent, unless it is
clearly not feasible to do so, and shall explain the types of assessments to be conducted
and the facts which make an assessment necessary or desirable. |
| 12. |
The
parent shall have at least 15 calendar days from receipt of the proposed assessment plan
to provide written consent. Assessment may begin immediately upon receipt of the local
education agency of the signed assessment plan. |
| 13. |
The
parent has the right to receive a copy of the evaluation report and the documentation of
determination of eligibility for special education services. |
| 14. |
As
part of an initial evaluation (if appropriate) and as part of any reevaluation, the IEP
Team and other qualified professionals as appropriate, shall review existing evaluation
data on the child, including evaluations and information provided by the parents of the
child, current classroom-based assessments and observations, and teacher and related
services providers' observations; and, on the basis of that review, and input from the
child's parents, identify what additional data, if any, are needed to determine whether
the child has a particular disability, the present levels of performance and educational
needs of the child, whether the child needs special education and related services, and
whether any additions or modifications to the special education and related services are
needed to enable the child to meet the annual goals set out in the child's Individualized
Education Program and to participate, as appropriate, in the general curriculum. |
| 15. |
A
reevaluation of each child with a disability shall be conducted at least once every three
years or if conditions warrant or if the child's parent or teacher requests a
reevaluation. |
| 16. |
The
local education agency shall conduct a reevaluation of a child with a disability before
determining that the child no longer meets the criteria for eligibility as a child with a
disability. If, as part of a reevaluation, the IEP Team and other qualified professionals,
as appropriate, determine that no additional data are needed to determine whether the
child continues to be a child with a disability, the local education agency shall notify
the child's parent of that determination and the reasons for it, and the right of the
parent to request an assessment to determine whether the child continues to be a child
with a disability. |
| 17. |
Parents
have the right to obtain an independent educational evaluation of their child at public
expense if they disagree with an evaluation obtained by the local education agency. The
local education agency shall provide to parents, on request, information about where an
independent educational evaluation may be obtained. If a parent requests an independent
educational evaluation at public expense, the local education agency must either initiate
a due process hearing to show that its evaluation is appropriate or ensure an independent
educational evaluation is provided at public expense. If an independent educational
evaluation has been obtained by the parent, the local education agency is not responsible
for the costs of such assessment if it demonstrates in a due process hearing that the
evaluation obtained by the parent did not meet the same criteria as that used by the local
education agency when it initiates an evaluation, including the location of the evaluation
and the qualifications of the examiner. If the final decision, as a result of a due
process hearing, is that the agency's evaluation is appropriate, the parent still has the
right to an independent educational evaluation, but not a public expense. |
RIGHTS RELATED TO THE
INDIVIDUALIZED EDUCATION PROGRAM
| 18. |
An
Individualized Education Program required as a result of an assessment of a child shall be
developed within a total time not to exceed 50 days, not counting days between the child's
regular school sessions, terms, or days of school vacation in excess of five school days,
from the date of receipt of the parent's written consent for assessment, unless the parent
agrees, in writing, to an extension. However, such an Individualized Education Program
shall be developed within 30 days after the commencement of the subsequent regular school
year as determined by each district's school calendar for each pupil for whom a referral
has been made 20 days or less prior to the end of the regular school year. In the case of
pupil school vacations, the 50-day time shall recommence on the date that pupil school
days reconvene. |
| 19. |
Parents
have the right to be a member of the IEP Team. They shall have the right: to present
information to the Team in person or through a representative; to participate in meetings
related to eligibility for special education and related services, recommendations, and
program planning; to participate in the development of the Individualized Education
Program; and to be informed of the availability under state and federal law of a free
appropriate public education and of all available alternative programs, both public and
nonpublic. |
| 20. |
Parents
are entitled to receive written notice of the proposed meeting. |
| 21. |
The
IEP Team meeting shall be arranged at times and places mutually agreeable to the parent
and the local education agency. |
| 22. |
In
developing each child's IEP, the IEP Team shall consider the strengths of the child and
the concerns of the parents for enhancing the education of their child. |
| 23. |
Parents
have the right to be members of any group that makes decisions on the educational
placement of their child. |
| 24. |
Parents
have the right to include as members of the IEP Team individuals who have knowledge or
special expertise regarding their child, including related services personnel as
appropriate. |
| 25. |
The IEP shall include a statement of how the
child's parents will be regularly informed of their child’s progress toward the
attainment of their annual goals, at least as often as parents are of their nondisabled
children's progress, and of the extent to which that progress is sufficient to enable the
child to achieve the goals by the end of the year. |
| 26. |
For children with disabilities aged 3 through 5,
an Individualized Family Service Plan may serve as the IEP of the child if agreed to by
the local education agency and the child's parents. |
| 27. |
The local education agency shall take whatever
action is necessary to ensure that the parents understand the proceedings at a meeting,
and are able to participate in any group discussions relating to the educational placement
of their child, including arranging for an interpreter for parents with deafness or whose
native language is other than English. |
| 28. |
Parents shall be given a copy of the IEP at no
cost, and a copy of the IEP shall be provided in the primary language at the request of
the parent. |
| 29. |
The IEP and placement of the child will be
reviewed at least once each year by the IEP team. |
| 30. |
Parents have the right to request a review by
the IEP Team. A meeting of the IEP Team requested by a parent shall be held within 30
days, not counting days in July and August, from the date of receipt of the parent's
written request. |
| 31. |
Parents and the local education agency have a
right to make an audio tape recording of the proceedings of the IEP Team meeting by giving
24 hours notice to the IEP Team of the intent to tape the meeting. If the local education
agency gives notice of the intent to audiotape the meeting and the parent objects or
refuses to attend, then the meeting shall not be tape recorded. |
| 32. |
A child shall not be required to participate in
all or part of any special education program unless the parent is first informed in
writing of the facts which make participation in the program necessary or desirable. |
| 33. |
The parent's voluntary written consent is
necessary before any program placement or special education services may begin. The parent
may consent to all or part of the proposed IEP. |
| 34. |
If the local education agency determines that
the part of the proposed special education program to which the parent does not consent is
necessary to provide a free and appropriate public education to the child, a due process
hearing shall be initiated unless a prehearing mediation conference is held. During the
pendency of the due process hearing, the local education agency may choose to meet
informally with the parent. While a prehearing mediation conference or due process hearing
is pending, the pupil shall remain in his or her then-current placement unless the parent
and the local education agency agree otherwise. |
| 35. |
Parents may withdraw their consent at any time
after consultation with a member of the IEP Team, and after submitting written
notification to an administrator. |
RIGHTS RELATED TO PARENTAL
NOTICE
| 36. |
Written
prior notice to the parents of the child is required whenever the local education agency
proposes to initiate or change or refuses to initiate or change the identification,
evaluation, or educational placement of the child or the provision of a free appropriate
public education. |
| 37. |
The
notice shall include a description of the action proposed or refused by the local
education agency, an explanation of why the agency proposes or refuses to take the action,
a description of any other options that the agency considered and the reasons why those
options were rejected, a description of each evaluation procedure, test, record, or report
the agency used as a basis for the proposed or refused action, a description of any other
factors that are relevant to the agency's proposal or refusal, a statement that the
parents of a child with a disability have protection under the procedural safeguards of
the IDEA and, if this notice is not an initial referral for evaluation, the means by which
a copy of a description of the procedural safeguards can be obtained, and sources for
parents to contact to obtain assistance in understanding the provisions of the IDEA. |
RIGHTS RELATED TO STUDENT
RECORDS
| 38. |
Parents
have the right to receive notice in their native language which includes a summary of the
policies, procedures and rights related to personally identifiable information, including
the rights under the Family Educational Rights and Privacy Act of 1974 (FERPA). |
| 39. |
The
local education agency shall provide parents, on request, a list of the types and
locations of education records collected, maintained, or used by the agency. |
| 40. |
Parents
shall have the right and opportunity to examine all school records of their child and to
receive copies within 5 days after such request is made, either orally or in writing and
before any meeting regarding an IEP or any hearing relating to the identification,
evaluation, or educational placement of the child, or the provision of a free appropriate
public education. A local education agency may charge no more than the actual cost of
reproducing such records, but if this cost effectively prevents the parent from exercising
the right to receive such copy or copies, the copy or copies shall be reproduced at no
cost. |
| 41. |
The
parent's rights to inspect and review the educational records of the child include the
right to a response from the local education agency to reasonable requests for
explanations and interpretations for the records and the right to have a representative of
the parent inspect and review the records. |
| 42. |
The
local education agency may presume that the parent has authority to inspect and review
records relating to his or her child unless the agency has been advised that the parent
does not have the authority under applicable State law governing such matters as
guardianship, separation, and divorce. |
| 43. |
The
parent of a pupil may file a written request with the superintendent of the local
education agency to correct or remove any information recorded in the written records
concerning his or her child which the parent alleges to be any of the following: (a)
inaccurate; (b) an unsubstantiated personal conclusion or inference; (c) a conclusion or
inference outside of the observer's area of competence; (d) not based on the personal
observation of a named person with the time and place of the observation noted; (e)
misleading; and (f) in violation of the privacy or other rights of the pupil. |
| 44. |
Within
30 days of receipt of a request as described above, the superintendent or superintendent's
designee shall meet with the parent and the certificated employee who recorded the
information in question, if any, and if the employee is presently employed by the local
education agency. The superintendent shall then sustain or deny the allegations. If the
superintendent sustains any or all of the allegations, he or she shall order the
correction or the removal and destruction of the information. However, the superintendent
shall not order a pupil's grade to be changed unless the teacher who determined the grade
is, to the extent practicable, given an opportunity to state orally, in writing or both,
the reasons for which the grade was given and is, to the extent practicable, included in
all discussions relating to the changing of the grade. If the superintendent denies any or
all of the allegations and refuses to order the correction or the removal of the
information, the parent may, within 30 days of the refusal, appeal the decision in writing
to the governing board of the local education agency. |
| 45. |
Within
30 days of receipt of an appeal, the governing board shall, in closed session with the
parent and the certificated employee who recorded the information in question, if any, and
if the employee is presently employed by the local education agency, determine whether or
not to sustain or deny the allegations. If the governing board sustains any or all of the
allegations, it shall order the superintendent to immediately correct or remove and
destroy the information from the written records of the pupil. However, the governing
board shall not order a pupil's grade to be changed unless the teacher who determined the
grade is, to the extent practicable, given the opportunity to state orally, in writing, or
both, the reasons for which the grade was given and is, to the extent practicable,
included in all discussions relating to the changing of the grade. The decision of the
governing board shall be final. |
| 46. |
Records
of these administrative proceedings shall be maintained in a confidential manner and shall
be destroyed one year after the decision of the governing board, unless the parent
initiates legal proceedings relative to the disputed information within the prescribed
period. |
| 47. |
If
the final decision of the governing board is unfavorable to the parent, or if the parent
accepts an unfavorable decision by the district superintendent, the parent shall have the
right to submit a written statement of his or her objections to the information. This
statement shall become a part of the pupil's school record until the information objected
to is corrected or removed. |
| 48. |
Parental
consent must be obtained by the local education agency before personally identifiable
information is disclosed or released to other agencies. |
RIGHTS OF ADULT STUDENTS
| 49. |
When
a child with a disability reaches the age of 18, the age of majority in California (except
for a child with a disability who has been determined to be incompetent under State law),
the local education agency shall provide any required notices to both the individual and
the parents. At the age of 18, all other rights accorded to the parents under the IDEA
transfer to the child. The local education agency shall notify the individual and the
parents of the transfer of rights. All rights accorded to parents under the IDEA transfer
to children who are incarcerated in an adult or juvenile Federal, State, or local
correctional institution. |
| 50. |
If,
under State law, a child with a disability who has reached the age of 18 who has not been
determined to be incompetent, but who is determined not to have the ability to provide
informed consent with respect to the educational program of the child, the local education
agency shall follow State procedures (which have not yet been developed) for appointing
the parent of the child, or if the parent is not available, another appropriate
individual, to represent the educational interests of the child throughout the period of
eligibility of the child under the IDEA. |
| 51. |
Beginning
at least one year before a child with a disability reaches the age of 18, the child shall
be informed of his or her rights under the IDEA, if any, that will transfer to the child
at the age of majority. |
PROCEDURES FOR APPOINTMENT OF
SURROGATE PARENTS
| 52. |
The
local education agency shall ensure that procedures are established and maintained for the
assignment of an individual to act as a surrogate for the parents upon referral of the
child to a local education agency for special education and related services or, in cases
where the child already has a valid IEP, under the following circumstances: whenever the
parents of the child are not known, the agency cannot, after reasonable efforts, locate
the parents, or the child is a ward of the State. |
| 53. |
The
individual appointed to act as a surrogate shall not be an employee of the State education
agency, the local education agency, or any other public or private agency that is involved
in the education or care of the child. The surrogate shall have no interest that conflicts
with the interest of the child he or she represents and shall have knowledge and skills
that ensure adequate representation of the child. An individual who would have a conflict
of interest means a person having any interests that might restrict or bias his or her
ability to advocate for all of the services required to ensure a free appropriate public
education for a child with a disability. |
| 54. |
As
far as practical, a surrogate parent should be culturally sensitive to his or her assigned
child. |
| 55. |
When
appointing a surrogate parent, the local education agency shall, as a first preference,
select a relative caretaker, foster parent, or court appointed special advocate, if any of
these individuals exist and is willing and able to serve. If none of these individuals is
willing or able to act as a surrogate parent, the local education agency shall select the
surrogate parent of its choice. If the child is moved from the home of the relative
caretaker or foster parent who has been appointed as a surrogate parent, the local
education agency shall appoint another surrogate parent. |
| 56. |
Except
for individuals who have a conflict of interest in representing the child, individuals who
may serve as surrogate parents include, but are not limited to, foster care providers,
retired teachers, social workers, and probation officers who are not employees of a public
agency involved in the education or care of the child. If a conflict of interest arises
subsequent to the appointment of the surrogate parent, the local education agency shall
terminate the appointment and appoint another surrogate parent. |
| 57. |
The
surrogate parent shall serve as the child's parent and shall have the rights relative to
the child's education that a parent has as specified in the IDEA. A surrogate parent may
represent a child with a disability in matters relating to identification, assessment,
instructional planning and development, educational placement, reviewing and revising the
Individualized Education Program, and in other matters relating to the provision of a free
appropriate education to the individual. This representation shall include the provision
of written consent to the IEP including non-emergency medical services, mental health
treatment services and occupational or physical therapy services. The surrogate parent may
sign any consent relating to IEP purposes. |
| 58. |
A
surrogate parent shall not be appointed for a child who is a dependent or ward of the
court unless the court specifically limits the right of the parent or guardian to make
educational decisions for the child or for a child who has reached the age of majority
unless the child has been declared incompetent by a court of law. |
| 59. |
A
surrogate parent shall be held harmless by the State of California when acting in his or
her official capacity except for acts or omissions which are found to have been wanton,
reckless, or malicious. |
| 60. |
The
parent or guardian of a child with a disability may designate another adult individual to
represent the interests of the child for education and related services. |
PROCEDURES FOR RESOLVING
DIFFERENCES: MEDIATION
| 61. |
The
parents and representatives from the local education agency may meet informally to resolve
any issue(s) relating to the identification, assessment, education, and placement of the
child or the provision of a free appropriate public education. An informal meeting may be
requested by sending a written request to the LEA’s Special Education Director. |
| 62. |
Either
the parent or the local education agency may request a voluntary pre-hearing request
mediation by filing a written request with the Superintendent of Public Instruction with a
copy provided to the other party at the same time. The pre-hearing mediation shall be
scheduled within 15 days of receipt of the request by the State Superintendent. The
mediation conference shall be completed within 30 days after receipt of the mediation
request unless both parties agree to a time extension. Attorneys or other independent
contractors who provide legal advocacy shall not participate in pre-hearing request
mediation conferences. |
| 63. |
Parents
shall have the right and opportunity for a mediation conference when a due process hearing
is requested. The mediation process is voluntary and may not be used to deny or delay a
parent's right to a hearing or other rights afforded by the IDEA, and will be conducted by
a qualified, impartial, and trained mediator. Requesting or participating in a mediation
conference is not a prerequisite to requesting a due process hearing. |
| 64. |
Parents
who choose not to use mediation may be required to meet (at a time and location convenient
to the parents) with a disinterested party who is under contract with a parent training
and information center or community parent resource center in the State or an appropriate
alternative dispute resolution entity to encourage the use and explain the benefits of the
mediation process. |
| 65. |
Each
mediation session shall be scheduled in a timely manner and held in a location convenient
to the parties. |
| 66. |
Any
agreement reached in mediation shall be documented in a written mediation agreement. |
| 67. |
Discussions
in mediation shall be confidential and may not be used as evidence in any subsequent due
process hearings or civil proceedings. The parties to the mediation may be required to
sign a confidentiality pledge prior to the commencement of the process. |
PROCEDURES FOR RESOLVING
DIFFERENCES: DUE PROCESS HEARING RIGHTS
| 68. |
Parents
have the right to present complaints and seek resolution of disputes on any matters
relating to the identification, evaluation, and educational placement of the child, and
the provision of a free appropriate public education, must be filed within three years
from the date the parent knew or had reason to know of the facts that are the basis for
the hearing request. |
| 69. |
Parents
shall have the opportunity for an impartial due process hearing involving a proposal or a
refusal to initiate or change the identification, assessment, or educational placement of
the child or the provision of a free, appropriate public education to the child and when a
dispute arises involving any such matter, either the parent or the local education agency
may request a due process hearing to resolve the dispute. |
| 70. |
The
due process hearing rights include the right to examine pupil records and to receive
copies within 5 days after such request is made by the parent either orally or in writing. |
| 71. |
Parents
have the right to a fair and impartial hearing at the state level before a person
knowledgeable in the laws governing special education and administrative hearings and who
is not an employee of the state or local education agency involved in the education or
care of the child. Parents have the right to have the pupil who is the subject of the
hearing present at the hearing, the right to an open or closed hearing to the public and
the right to request a mediation conference at any point during the hearing process. |
| 72. |
All
requests for a due process hearing shall be submitted to the State Superintendent of
Public Instruction with a copy provided to the other party at the same time. |
| 73. |
When
filing a due process hearing request, the parent of the child or the attorney representing
the child shall provide notice to the State and local education agency that includes the
name of the child, the address of the residence of the child, and the name of the school
the child is attending. The notice shall also include a description of the nature of the
problem relating to any proposed initiation or change in the identification, evaluation,
educational placement or provision of a free appropriate public education to the child,
including facts relating to the problem, and proposed resolution of the problem to the
extent known and available to the parents at the time. |
| 74. |
Upon
receipt by the State Superintendent or designee of the hearing request, all parties to the
hearing shall immediately be notified of the request for the hearing and the scheduled
hearing date. The notice shall advise all parties of all their rights relating to
procedural safeguards, including the provision of an interpreter (at the cost of the state
educational agency), and shall include a list of persons and organizations within the
geographical area than can provide free or reduced cost representation or other assistance
in preparing for the due process hearing. |
| 75. |
Each
party to a hearing shall have the right to be informed by the other parties at least 10
days prior to the hearing as to what those parties believe are the issues to be decided at
the hearing and their proposed resolution of those issues. |
| 76. |
Upon
the request of a parent who is not represented by an attorney, a mediator will be provided
to assist the parent in identifying the issues and the proposed resolution of the issues. |
| 77. |
If
either party to a due process hearing intends to be represented by an attorney in the
state hearing, notice of that intent shall be given to the other party at least 10 days
prior to the hearing. The failure to provide that notice shall constitute good cause for a
continuance. |
| 78. |
Any
party to a due process hearing shall have the right to be accompanied and advised by
counsel and by individuals with special knowledge or training with respect to the problems
of children with disabilities, the right to present evidence, written arguments and oral
arguments, the right to confront, cross-examine, and compel the attendance of witnesses,
the right to a written or, at the option of the parents, electronic verbatim record of
such hearing and electronic findings of fact and decisions. |
| 79. |
Any
party to the hearing has the right to prohibit the introduction of any evidence at the
hearing that has not been disclosed to the party at least 5 days before the hearing. |
| 80. |
Each
party to a hearing shall, at least 5 business days prior to the hearing, disclose to all
other parties all evaluations completed by that date and recommendations based on the
evaluations that the party intends to use at the hearing. A hearing officer may bar any
party from introducing relevant evaluations or recommendations at the hearing without the
consent of the other party that have not been disclosed at least 5 business days prior to
the hearing. |
| 81. |
The
State Education Agency shall ensure that a final decision is reached in the hearing and a
copy of the decision is mailed to each of the parties not later than 45 days after receipt
of a request for a hearing. |
| 82. |
Each
party to the hearing may request an extension of the timeline for the hearing. The
extension shall be granted upon a showing of good cause. |
| 83. |
The
hearing decision shall be final and binding on all parties except that any party involved
in such hearing may appeal the decision to a court of competent jurisdiction. An appeal
shall be made within 90 days of receipt of the hearing decision. |
| 84. |
During
the pendency of the hearing and any judicial proceedings, unless the State or local
education agency and the parents agree otherwise, the child shall remain in the current
educational placement, including a child suspended/expelled beyond 10 days, or, if
applying for initial admission to a public school, shall, with the consent of the parents,
be placed in the public school program until all such proceedings have been completed. |
| 85. |
A
court may award reasonable attorneys fees to the parent if the parent is the prevailing
party in a due process hearing or subsequent judicial proceeding. |
| 86. |
Attorneys'
fees may not be awarded and related costs may not be reimbursed in any action or
proceeding for services performed subsequent to the time of a written offer of settlement
to the parent if the offer is made more than 10 days prior to the start of the
proceedings, the offer is not accepted within 10 days, and the court of hearing officer
finds that the relief finally obtained by the parents is not more favorable to the parents
than the offer of settlement. |
| 87. |
An
award of attorneys' fees and related costs may be made to a parent who is prevailing party
and who was substantially justified in rejecting the settlement offer. |
| 88. |
Attorneys'
fees may not be awarded relating to any meeting of the IEP Team unless such meeting is
convened as a result of an administrative proceeding or judicial action. |
| 89. |
The
court shall reduce, accordingly, the amount of the attorneys' fees awarded whenever the
court finds that the parent, during the course of the action or proceeding, unreasonable
protracted the final resolution of the controversy, the amount of the attorneys' fees
otherwise authorized to be awarded unreasonably exceeds the hourly rate prevailing in the
community for similar services by attorneys of reasonably comparable skill, reputation,
and experience, the time spent and legal services furnished were excessive considering the
nature of the action or proceeding, or the attorney representing the parent did not
provide the local education agency the appropriate information required as part of the due
process request, unless the court finds that the State or local education agency
unreasonably protracted the final resolution of the action or proceeding or there was a
violation of the due process procedures of the IDEA. |
RIGHTS RELATED TO STUDENT
DISCIPLINE
| 90. |
School
personnel may order a change in the placement of a child with a disability to an
appropriate interim alternative educational setting, another setting, or suspension for
not more than 10 school days. In the case of a truly dangerous child, a suspension may
exceed 10 consecutive school days, or the pupil's placement may be changed, or both, if
the pupil's parent or guardian agrees or if a court order so provides. |
| 91. |
School
personnel may order a change in placement to an appropriate interim alternative
educational setting for the same amount of time that a child without a disability would be
subject to discipline, but for not more than 45 days, if a child carries a weapon to
school or to a school function or the child knowingly possesses or uses illegal drugs or
sells or solicits the sale of a controlled substance while at school or a school function.
The interim alternative educational setting shall be determined by the IEP Team. |
| 92. |
Either
before or not later than 10 days after taking a disciplinary action involving a change of
placement as described in either of the two preceding paragraphs, if the local education
agency did not conduct a functional behavioral assessment and implement a behavioral
intervention plan for such child before the behavior that resulted in the suspension, the
agency shall convene an IEP meeting to develop an assessment plan to address that behavior
or, if the child already has a behavioral intervention plan, the IEP Team shall review the
plan and modify it, as necessary, to address the behavior. |
| 93. |
A
hearing officer may order a change in the placement of a child with a disability to an
appropriate interim alternative educational setting for not more than 45 days if the
hearing officer determines that the local education agency has demonstrated by substantial
evidence that maintaining the current placement of such child is substantially likely to
result in injury to the child or to others, considers the appropriateness of the child's
current placement, considers whether the local education agency has made reasonable
efforts to minimize the risk of harm in the child's current placement, including the use
of supplementary aids and services, and determines that the interim alternative
educational setting meets the requirements set forth in the following paragraph. |
| 94. |
Any
interim alternative educational setting in which a child is placed shall be selected so as
to enable the child to continue to participate in the general curriculum, although in
another setting, and to continue to receive those services and modifications, including
those described in the child's current IEP, that will enable the child to meet the goals
set out in that IEP, and include services and modifications designed to address the
behavior described above so that it does not recur. |
| 95. |
If
a disciplinary action involving a change of placement for more than 10 days is
contemplated for a child with a disability, the parents shall be notified of that decision
and of all procedural safeguards not later than the date on which the decision to take
that action is made. |
| 96. |
Immediately,
if possible, but in no case later than 10 school days after the date on which the decision
to take disciplinary action is made, an IEP meeting shall be conducted of the relationship
between the child's disability and the behavior subject to the disciplinary action. |
| 97. |
In
determining whether a pupil should be expelled, the IEP Team shall base its decision on
the results of a pre-expulsion educational assessment which shall include a review of the
appropriateness of the pupil's placement at the time of the alleged misconduct, and a
determination of the relationship, if any, between the pupil's behavior and his or her
disability. The parent is entitled to written notice of the local education agency's
intent to conduct a pre-expulsion assessment. Parental consent is not required prior to
conducting a pre-expulsion educational assessment if the parent fails to respond to
reasonable measures to obtain such consent. The parent shall make the pupil available for
the assessment at a site designated by the local education agency without delay. The
parent's right to an independent assessment applies despite the fact that the pupil has
been referred for expulsion. |
| 98. |
The
child's parents have the right to participate in the IEP Team meeting preceding the
commencement of expulsion proceedings following the completion of the pre-expulsion
assessment through actual participation representation, or telephone conference call. The
meeting shall be held at a time and place mutually convenient to the parent and the local
education agency within the period, if any, of the pupil's pre-expulsion suspension. A
telephone conference call may be substituted for the meeting. Each parent shall be
notified of his or her right to participate in the meeting at least 48 hours prior to the
meeting. Unless a parent has requested a postponement, the meeting may be conducted
without the parent's participation, if the required notice of the meeting was provided. |
| 99. |
The
notice shall specify that the meeting may be held without the parent's participation,
unless the parent requests a postponement for up to three additional school days. If a
postponement has been granted, the local education agency may extend any suspension of a
pupil for the period of postponement if the pupil continues to pose an immediate threat to
the safety of himself, herself, or others and the local education agency notifies the
parent that the suspension will be continued during the postponement. However, the
suspension shall not be extended beyond 10 consecutive school days unless agreed to by the
parent, or by a court order, with educational services recommencing as of the 11th day of
any suspension. If a parent who has received proper notice of the meeting refuses to
consent to an extension beyond 10 consecutive school days and chooses not to participate,
the meeting may be conducted without the parent's participation. |
| 100 |
In
conducting a review, the IEP Team may determine that the behavior of the child was not a
manifestation of the child's disability only if the IEP Team first considers, in terms of
the behavior subject to disciplinary action, all relevant information including evaluation
and diagnostic results, including such results or other relevant information supplied by
the parents of the child, observations of the child, and the child's IEP and placement and
then determines that, in relationship to the behavior subject to disciplinary action, the
child's IEP and placement were appropriate and the special education services,
supplementary aides and services, and behavior intervention strategies were provided
consistent with the child's IEP and placement, the disability did not impair the ability
of the child to understand the impact and consequences of the behavior subject to
disciplinary action, and the disability did not impair the ability of the child to control
the behavior subject to disciplinary action. In addition to the pre-expulsion educational
assessment results, the IEP Team shall also review and consider the pupil's health records
and school discipline records. |
| 101. |
If
the result of the IEP Team review is a determination that the behavior of the child was
not a manifestation of the child's disability, the relevant disciplinary procedures
applicable to children without disabilities may be applied to the child in the same manner
in which they would be applied to children without disabilities except that provision a
free appropriate public education must continue. |
| 102. |
If
the child's parent disagrees with a determination that the child's behavior was not a
manifestation of the child's disability or with any decision regarding placement, the
parent may request a hearing. |
| 103. |
When
a parent requests a hearing regarding a disciplinary action to challenge the interim
alternative educational setting or the manifestation determination, the child shall remain
in the interim alternative educational setting pending the decision of the hearing officer
or until expiration of the 45 day limit for interim alternative placements, whichever
occurs first, unless the parent and the State or local education agency agree otherwise. |
| 104. |
If
a child is placed in an interim alternative educational setting and school personnel
propose to change the child's placement after expiration of the interim alternative
placement, during the pendency of any proceeding to challenge the proposed change in
placement, the child shall remain in the current placement (the child's placement prior to
the interim alternative educational setting). |
| 105. |
No
expulsion hearing shall be conducted for a child with a disability until a pre-expulsion
assessment is conducted, the IEP Team meets to consider the relationship (if any) of the
behavior to the disability, and due process hearings and appeals, if initiated, are
completed. The statutory time prescribed in the California Education Code for expulsion
proceedings for children with disabilities shall commence after the completion of the
steps listed in this paragraph. |
| 106 |
If
the local education agency initiates disciplinary procedures applicable to all children,
the agency shall ensure that the special education and disciplinary records of the child
with a disability are transmitted for consideration by the person or persons making the
final determination regarding the disciplinary action. |
| 107. |
If
a child with a disability is excluded from school bus transportation, the child is
entitled to be provided with an alternative form of transportation at no cost to the pupil
or parent. |
| 108. |
A
child who has not been determined to be eligible for special education and related
services and who has engaged in behavior that violated any rule or code of conduct of the
local education agency may assert all due process protections included in the IDEA if the
local education agency had knowledge that the child was a child with a disability before
the behavior that precipitated the disciplinary action occurred. A local educational
agency shall be deemed to have knowledge that a child is a child with a disability if the
parent of the child has expressed concern in writing (unless the parent is illiterate or
has a disability that prevents compliance with this requirement) to personnel of the
appropriate local education agency that the child is in need of special education and
related services, the behavior or performance of the child demonstrates the need for such
services, the parent of the child has requested an evaluation of the child for special
education, or the child's teacher or other personnel of the local educational agency has
expressed concern about the behavior or performance of the child to the director of
special education of the agency or to other personnel of the agency. If the local
education agency does not have knowledge that a child is a child with a disability prior
to taking disciplinary measures against the child, the child may be subject to the same
disciplinary measures as applied to children without disabilities. If a parent requests an
evaluation of a child during the time period in which disciplinary measures are being
taken, the evaluation shall be conducted in an expedited manner. If the child is
determined to be a child with a disability, taking into consideration information from the
agency's evaluation and information provided by the parents, the agency shall provide
special education and related services. Pending the results of the evaluation, the child
shall remain in the educational placement determined by school authorities. |
| 109. |
The
local education agency has a right to report a crime committed by a child with a
disability to appropriate authorities and State law enforcement and judicial authorities
have the right to exercise their responsibilities in applying Federal and State law to
crimes committed by a child with a disability. |
| 110. |
An
agency reporting a crime committed by a child with a disability shall ensure that copies
of the special education and disciplinary records of the child are transmitted for
consideration by the appropriate authorities to whom it reports the crime. |
PAYMENT FOR EDUCATION OF
CHILDREN ENROLLED IN PRIVATE SCHOOLS WITHOUT CONSENT OF OR REFERRAL BY THE LOCAL EDUCATION
AGENCY
| 111. |
A
local education agency is not required to pay for the cost of education, including special
education and related services, of a child with a disability at a private school or
facility if that agency made a free appropriate public education available to the child
and the parents elected to place the child in such private school or facility. |
| 112. |
If
the parents of a child with a disability who previously received special education and
related services through the local education agency enroll the child in a private school
without the consent of or referral by the local education agency, a court of hearing
officer may require the parent to be reimbursed for the costs of the placement if the
court or hearing officer finds that a free appropriate public education had not been made
available to the child in a timely manner prior to that enrollment. |
| 113. |
The
cost of reimbursement may be reduced or denied if -- (a) at the most recent IEP meeting
the parents attended prior to removing the child from public school, the parents did not
inform the IEP Team that they were rejecting the placement proposed by the local education
agency and did not state their concerns and their intent to enroll their child in a
private school at public expense, or (b) 10 business days (including holidays that occur
on a business day) prior to removing a child from public school, the parents did not give
written notice to the local education agency of the information described in (a), or (c)
if prior to the parents' removal of the child from public school, the local education
agency informed the parents of its intent to evaluate the child (with notice including a
statement of the purpose of the evaluation that was appropriate and reasonable), but the
parents did not make the child available for the evaluation, or (d) if there is a judicial
finding that the actions taken by the parents were unreasonable. The cost of reimbursement
may not be reduced or denied if the parent failed to provide the notice as required in (a)
and (b) above as a result of being illiterate and unable to write in English, or because
providing such required notice would likely result in physical or serious emotional harm
to the child, or the school prevented the parent from providing such notice, or the
parents had not received notice of the requirement to provide the information in (a) and
(b) above. |
| 114. |
Private
school parents may seek special education services by contacting their local school
District. However, services may be limited to the amount fundable by a proportionate
amount of the federal law per child funding available to the district under the
Individuals with Disabilities Education Act (IDEA). Service delivery is provided at the
nearest public school unless the child’s service plan says otherwise. |
COMPLAINTS
| 115. |
An
individual may file a written complaint with the superintendent of the local education
agency or the State Superintendent of Public Instruction with a copy to the district
regarding the local education agency's alleged violation of federal or state law involving
special education and related services. |
DEFINITIONS
| 116. |
"Consent" means that the parent has been fully informed of all information relevant to the activity
for which consent is sought, in his or her native language, or other mode of
communication. The parent understands and agrees in writing to the carrying out of the
activity for which his or her consent is sought, and the consent describes that activity
and lists the records (if any) that will be released and to whom. The parent understands
that the granting of consent is voluntary on the part of the parent and may be revoked at
any time. |
| 117. |
"Evaluation" (also called "Assessment") means procedures used to determine whether a child
has a disability and to determine the nature and extent of the special education and
related services that the child needs. The term means procedures used selectively with an
individual child and does not include basic tests administered or procedures used with all
children in a school, grade or class. |
| 118. |
"Independent
educational evaluation" means an evaluation conducted by a qualified
examiner who is not employed by the public agency responsible for the education of the
child in question. |
| 119. |
"Native
language" when used with reference to an individual of limited English
proficiency, means the language normally used by the individual, or in the case of a
child, the language normally used by the parents of the child. |
| 120. |
"Parent" means any person having legal custody of a child. "Parent," in addition,
includes any adult pupil for whom no guardian or conservator has been appointed and the
person having custody of a minor if neither the parent nor legal guardian can be notified
of the educational actions under consideration. "Parent" also includes a parent
surrogate. "Parent" does not include the state or any political subdivision of
government. |
| 121. |
"Personally
identifiable" means information that includes the name of the child, the
child's parent or other family members, address of the child, a personal identifier, such
as the child's social security number or student number, or a list of personal
characteristics or other information that could make it possible to identify the child
with reasonable certainty. |
| 122. |
"Primary
language" means the language other than English, or other mode of
communication, the person first learned, or the language which is spoken in the person's
home. |
| 123. |
"Public
expense" means that the public agency either pays for the full cost of the
evaluation or ensures that the evaluation is otherwise provided at no cost to the parent. |
Parents wishing additional
assistance in understanding the provisions of the IDEA may contact the Special Education
Director of the district or the SELPA Director (Dr. Susan Villa, 831-637-5393, ext. 112). |
