Advocacy, Incorporated Handout Materials — ED18
Procedural Safeguards
This material is from a training package developed by the Office of Special Education Programs (OSEP), the National Information Center for Children and Youth with Disabilities (NICHCY), and the Federal Resource Center for Special Education (FRC). The entire training package can be viewed and downloaded at NICHCY's web site:www.nichcy.org
Relevance of Procedural Safeguards
Procedural safeguards are an essential part of the law, and all parents need a thorough and accurate grasp of what the law requires. Some of the procedural safeguards have been amended, and it is important to note the ways in which past requirements have changed. In addition, new safeguards have been added. Accordingly, this material reviews the requirements for procedural safeguards that the IDEA 97 has changed and added.
Overview
The Individuals with Disabilities Education Act (IDEA) includes an entire section entitled "Procedural Safeguards." These safeguards are designed to protect the rights of parents and their child with a disability, as well as give families and schools a mechanism for resolving disputes.
Procedural safeguards under the prior legislation include:
- the right of parents to inspect and review all of their child's educational records;
- the right of parents to obtain an independent educational evaluation (IEE) of their child;
- the right to written prior notice on matters regarding the identification, evaluation, or educational placement of their child, or the provision of a free appropriate public education (FAPE) to their child;
- the right to request a due process hearing on these matters, which must be conducted by an impartial hearing officer;
- the right to appeal the initial hearing decision to the State Education Agency (SEA) if the SEA did not conduct the hearing;
- the right of the child to remain in his or her current educational placement, unless the parent and the agency agree otherwise, while administrative or judicial proceedings are pending (this provision has come to be known as the "stay-put" provision);
- the right to bring civil action in an appropriate state or federal court to appeal a final hearing decision;
- the right of the parent to request reasonable attorney's fees from a court for actions or proceedings brought under IDEA (under certain circumstances);
- the right of parents to give or refuse consent before their child is initially evaluated or placed in a special education program for the firs time.
Many of these procedural safeguards remain unchanged. Some have been amended, and some are new, as described below.
Areas of Change
Procedural safeguards are a critical area of the law, for these ensure that the rights of parents and children are protected. IDEA 97 makes the following changes to the procedural safeguards section.
Rather than always sending a detailed description of the procedural safeguards available to parents under the law, public agencies may now, in certain, well specified instances, merely provide to parents, as part of written prior notice, a statement that the parents of a child with a disability have protections under the procedural safeguards and indicate where parents might obtain assistance in understanding these safeguards. In other specific instances, the public agency must send parents a copy of a detailed description of the procedural safeguards.
Parents must now notify the public agency when they intend to remove their child from the public school and place the child in a private school at public expense.
Parents must now notify the SEA or the Local Education Agency (LEA), as the case may be, when they intend to file a due process complaint.
States must now have a voluntary mediation process in place, as a means of resolving disputes between LEAs and parents of children with disabilities.
Specific requirements have been added to the law regarding the disciplining of children with disabilities. Under certain circumstances, such as the child bringing a weapon to school or a school function, the child may be removed from his or her current educational placement and placed in an interim alternative educational setting or suspended or expelled from school.
Attorneys' fees may, under certain circumstances, be reduced or denied. Among the circumstances is when an attorney representing the parent did not provide the school district with the appropriate information in the due process complaint in accordance with IDEA. Attorneys' fees may not be awarded relating to any meeting of the Individualized Education Program (IEP) team unless the meeting is called as a result of a due process hearing or judicial action, or, at the discretion of the State, for a mediation that is conducted prior to the filing of a due process complaint.
Handout 10-1
New Parental Requirements for Notification Under IDEA 97
Parents must now provide notice if they intend to request a due process hearing.
Who should parents notify?
Parents (or their attorney) need to notify the SEA or the LEA, as the case may be, that they intend to request a due process hearing to resolve their conflict with the school. This notice will remain confidential.
What should the notice include? The notice from parents must include:
- the name of the child, the address of the residence of the child, and the name of the school the child attends;
- a description of the nature of the problem of the child relating to the school's proposed initiation or change in the identification, evaluation, or educational placement of the child, or the provision of a FAPE to the child; this includes facts relating to the problem;
- a proposed resolution of the problem, to the extent known and available to the parents at the time. What happens if parents don't provide this notice? Reduction in the amount of attorneys' fees, whenever the court finds that the attorney representing the parent did not provide the school district with the appropriate information in a due process complaint.
Why is this notice required?.When parents signal their intention to request a due process hearing, it permits the school system to try to resolve the problem without resorting to due process. It gives parents and schools the opportunity to talk about their concerns, to explore mediation as a way of resolving the conflict, and to remain partners working on behalf of the child with disabilities.
Handout 10-2
The Procedural Safeguards Notice Under IDEA 97
IDEA 97 requires that the public agency provide parents with information about the procedural safeguards available under the law.
How do public agencies tell parents about the law's procedural safeguards?
In certain circumstances, public agencies must provide parents with a full explanation of the procedural safeguards available under the law (see below). At other times, as part of prior written notice, public agencies may merely provide parents with a statement that the parents of a child with a disability have protections under the procedural safeguards of the Act and indicate how they can get a copy of a description of the safeguards, as well as where they can obtain assistance in understanding the provisions of Part B of the law.
The Full Explanation
When do public agencies have to provide the full explanation of procedural safeguards?
- on the child's initial referral for evaluation
- every time parents are notified of an IEP meeting
- upon reevaluation of the child
- when parents register a due process complaint.
When public agencies provide the full explanation, what information must the notice contain?.The full explanation of procedural safeguards must provide information about the procedural safeguards under the law and regulations related to:
- independent educational evaluation
- prior written notice
- parent consent
- access to educational records
- opportunity to present due process complaints
- the child's placement during pendency of a due process proceeding
- procedures for students who are subject to placement in an interim alternative educational setting
- requirements for unilateral placement by parents of children in private schools at public expenses
- mediation
- due process hearings, including requirements for disclosure of evaluation results and recommendations
- State-level appeals (if applicable in that state)
- civil actions
- attorneys' fees.
Anything else about the procedural safeguards notice?.Yes. The procedural safeguards notice must be written in the native language of the parents, unless it clearly is not feasible to do so. It must also be written in an easily understandable manner.
Handout 10-3
Prior Written Notice Under IDEA 97
IDEA 97 requires that public agencies provide parents with prior written notice whenever the agency proposes or refuses to initiate or change the --
- identification,
- evaluation,
- educational placement, or
- provision of a FAPE to the child with a disability. [Sec. 615(b)(3)]
The prior written notice must include:
- a description of the action proposed or refused by the agency
- an explanation of why the agency proposes or refuses to take the action;
- a description of any other options 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;
- a statement that the parents have protections under the procedural safeguards of Part B and, if this notice is not an initial referral for evaluation, how the parents can get a copy of the description of the procedural safeguards;
- sources for parents to contact to obtain assistance in understanding the provisions of Part B. [Sec. 615(c)].
Handouts 10-4
The New Mediation Process Under IDEA 97
States shall set up and implement procedures to allow parties in dispute to resolve their conflicts through mediation.
The Mediation Process:
- is voluntary
- cannot be used to deny or delay parents' right to due process or to deny any other rights under IDEA
- is conducted by a qualified, impartial mediator who is trained in effective mediation techniques
If parents choose not to use mediation, they may be required to:
- meet with a disinterested (i.e., impartial and uninvolved) third party
- hear about the benefits of mediation and be encouraged to use mediation
The States shall:
- maintain a list of qualified mediators who know the laws and regulations for special education
- pay for the mediation process
Other Mediation Requirements:
- Sessions shall be scheduled to both parties' convenience.
- Any agreement reached shall be set forth in a "written mediation agreement."
- Discussions shall be confidential and may not be used as evidence later.
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