CALIFORNIA ASSOCIATION OF HEALTH AND EDUCATION LINKED PROFESSIONS CAHELP
DM CHARTER SELPA POLICY AND PROCEDURES
17800 Highway 18, Apple Valley, CA 92307 (760) 552-6700 www.cahelp.org
Policy – Category 1000 (Community Relations) BP 1001 – Procedural Safeguards Table of Contents BP 1001 – PROCEDURAL SAFEGUARDS .............................................................................. 1 1.0 I NTRODUCTION ................................................................................................................ 1 2.0 P ROCEDURAL S AFEGUARDS ............................................................................................. 2 2.1 Surrogate Parents ....................................................................................................... 3 2.2 Age of Majority ........................................................................................................... 5 2.3 Parent Revokes Consent for Special Education and Related Services ....................... 5 3.0 I NFORMAL P ROCESS /A LTERNATIVE D ISPUTE R ESOLUTION (ADR) ................................. 7 4.0 M EDIATION O NLY ............................................................................................................ 7 5.0 C ALIFORNIA D EPARTMENT OF E DUCATION (CDE) C OMPLAINTS .................................... 8 6.0 D UE P ROCESS C OMPLAINT ............................................................................................... 8 6.1 Stay-Put..................................................................................................................... 12 6.2 Due Process Complaints and General Liability ....................................................... 12 7.0 P RIOR W RITTEN N OTICE ................................................................................................ 14 8.0 A PPENDICES ................................................................................................................... 16 9.0 L EGAL R EFERENCES ...................................................................................................... 16
1.0
Introduction In order to protect the rights of a child with a disability, Charter Local Education Agencies (LEAs) shall follow all procedural safeguards as set forth in law. Parents shall receive written notice of their rights in accordance with law, Charter LEA Board policy, and administrative regulation. NOTE: Education Code § 561958 authorizes the policy to include provisions for involving Charter LEA Board members in any due process hearing procedure activities. The Charter LEA Chief Executive Officer (CEO) or designee shall represent the Charter LEA in any due process hearing conducted with regard to Charter LEA students and shall inform their governing board about the result of the hearing. NOTE: A complaint, which can be made by anyone, is an allegation of a violation of state or federal law. These complaints are different than due process complaint, as detailed in the accompanying administrative regulation, which is a legal document that must be filed to initiate a due process hearing.
BP 1001 – Procedural Safeguards
Page 1
Desert Mountain Charter Special Education Local Plan Area (DMCS) (rev. 11/16)
Policy – Category 1000 (Community Relations) BP 1001 – Procedural Safeguards
Complaints concerning compliance with state or federal law regarding special education shall be addressed in accordance with the Charter LEA’s uniform complaint procedures. NOTE: In California, due process hearings required by the federal Individuals with Disabilities Education Act (IDEA) ( Title 20 of the United States Code § 1400-1482 ) are held only at the state level. Related rights and procedures are set forth in Education Code §§ 56501-56506 and Title 5 of the California Code of Regulations §§ 3080-3089 . Note that in cases where state law provides greater protections, state law supersedes federal law. Pursuant to Education Code § 56501 , due process hearing rights extend to the child only if he/she is an emancipated child or a ward or dependent of the court with no available parent or surrogate parent. See Appendix C – Surrogate Parents in California Handbook produced by the California Department of Education (CDE). 2.0 Procedural Safeguards The law requires that LEAs establish procedures to protect the rights of individuals with exceptional needs and their parents or guardians. These procedures are called procedural safeguards. Parents have a right to receive a written copy of the Desert Mountain Charter Special Education Local Plan Area (DMCS) procedural safeguards (D/M 77). These are provided when 1) the child is being referred for an evaluation for special education services for the first time; 2) a written notice of an IEP meeting is sent to the parent; 3) before the child is reassessed; 4) the parent registers a complaint or requests for a mediation or hearing with the CDE; 5) when a decision is made to remove a child in a change of placement because of a violation of a code of student conduct; or 6) anytime they are requested by the parent. Parents are afforded these rights through the processes of assessment, as well as under the design and implementation of their child’s individualized education program (IEP). Definitions of terms used in the document are included in order to assist parents with further understanding of their rights. The written copy of the parents’ rights is provided in the parent’s native language, unless it is clearly not feasible, or in their primary mode of communication if their language is not written. This notice shall include information on the procedures for requesting an informal meeting; alternative dispute resolution conference; mediation conference; due process hearing; the timelines for completing each process; whether the process is optional; the type of representative who may be invited to participate; and the right of the parent and/or the Charter LEA to audio record the proceedings of IEP meetings in accordance with Education Code § 56341 . A copy of this notice shall be attached to the child’s assessment plan (D/M 67) and IEP meeting ( Title 20 of the United States Code § 1415(d)(2); Education Code §§ 56321 and 56321.5 ). In addition, this notice shall include a full explanation of the procedural safeguards relating to independent educational evaluation (IEE); prior written notice (PWN);
BP 1001 – Procedural Safeguards
Page 2
Desert Mountain Charter Special Education Local Plan Area (DMCS) (rev. 11/16)
Policy – Category 1000 (Community Relations) BP 1001 – Procedural Safeguards
parental consent; access to educational records; opportunity to present complaints to initiate due process hearings; the child’s placement while due process proceedings are pending; procedures for children who are subject to placement in an interim alternative educational setting (IAES); requirements for unilateral placement by parents of children in private schools at public expense; mediation; due process hearings; state-level appeals; civil action; attorney's fees; and the state's complaint procedure ( Title 20 of the United States Code § 1415(d)(2); Title 34 of the Code of Federal Regulations § 300.504 ). A complete copy of the DMCS Notice to Parent/Guardian/Surrogate regarding parental procedural safeguards is available in both English and Spanish (D/M 77 and D/M 77s) and is available through the DMCS office and website.
2.1
Surrogate Parents Federal Regulation, Title 34 of the Code of Federal Regulations § 300.519 , and Education Code § 56050 , mandate the appointment of a surrogate parent to ensure the educational rights of a child with a disability when 1) no parent can be identified; 2) after reasonable efforts, the parents’ whereabouts cannot be determined; 3) the child is a ward of the court and that court has limited the rights of the parents or guardian to make educational decisions regarding the child; or 4) the child is an unaccompanied homeless youth. The surrogate parent shall act as the child’s parent and have all rights as delineated in federal and state law. In order to meet the needs of the federal and state mandates, the DMCS staff supports the utilization of surrogate parents. Charter LEA staff will provide training for surrogate parent nominees. Individual Charter LEAs will determine which children require the services of a surrogate parent; nominate surrogate parent volunteers; determine if the surrogate parent has sufficient knowledge of the educational process as it relates to children with disabilities; appoint the surrogate parent once they’ve been determined to be knowledgeable; supervise the surrogate parent; and then evaluate the surrogate parent annually. To be eligible, it must be established that the volunteer has no interest that would conflict with the interest of the child. For example, the volunteer cannot be employed by the Charter LEA or hold a position that might restrict or bias his/her ability to make decisions regarding the child’s educational needs. Once the prospective surrogate has gained sufficient knowledge, the Charter LEA is free to appoint the parent to serve as a surrogate for a child with a disability within that Charter LEA. The surrogate parent may represent the child in matters relating to identification, assessment, instructional planning and development, educational placement, reviewing and revising the IEP, and in all other matters relating to the provision of free appropriate public education (FAPE) for the child.
BP 1001 – Procedural Safeguards
Page 3
Desert Mountain Charter Special Education Local Plan Area (DMCS) (rev. 11/16)
Policy – Category 1000 (Community Relations) BP 1001 – Procedural Safeguards
California Education Code § 56500.1. (a) All procedural safeguards under the Individuals with Disabilities Education Act (20 U.S.C. Sec. 1400 and following) shall be established and maintained by each noneducational and educational agency that provides education, related services, or both, to children who are individuals with exceptional needs. (b) At each individualized education program meeting, the public education agency responsible for convening the meeting shall inform the parent and pupil of the federal and state procedural safeguards that were provided in the notice of parent rights pursuant to Section 56321.
California Education Code § 56028. (a) “Parent” means any of the following:
(1) A biological or adoptive parent of a child. (2) A foster parent if the authority of the biological or adoptive parents to make educational decisions on the child’s behalf specifically has been limited by court order in accordance with Section 300.30(b)(1) or (2) of Title 34 of the Code of Federal Regulations. (3) A guardian generally authorized to act as the child’s parent, or authorized to make educational decisions for the child, including a responsible adult appointed for the child in accordance with Sections 361 and 726 of the Welfare and Institutions Code. (4) An individual acting in the place of a biological or adoptive parent, including a grandparent, stepparent, or other relative, with whom the child lives, or an individual who is legally responsible for the child’s welfare. (5) A surrogate parent who has been appointed pursuant to Section 7579.5 or 7579.6 of the Government Code, and in accordance with Section 300.519 of Title 34 of the Code of Federal Regulations and Section 1439(a)(5) of Title 20 of the United States Code. (b)(1) Except as provided in paragraph (2), the biological or adoptive parent, when attempting to act as the parent under this part and when more than one party is qualified under subdivision (a) to act as a parent, shall be presumed to be the parent for purposes of this section unless the biological or adoptive parent does not have legal authority to make educational decisions for the child. (2) If a judicial decree or order identifies a specific person or persons under paragraphs (1) to (4), inclusive, of subdivision (a) to act as the “parent” of a child or to make educational decisions on
BP 1001 – Procedural Safeguards
Page 4
Desert Mountain Charter Special Education Local Plan Area (DMCS) (rev. 11/16)
Policy – Category 1000 (Community Relations) BP 1001 – Procedural Safeguards
behalf of a child, then that person or persons shall be determined to be the “parent” for purposes of this part, Article 1 (commencing with Section 48200) of Chapter 2 of Part 27 of Division 4 of Title 2, and Chapter 26.5 (commencing with Section 7570) of Division 7 of Title 1 of the Government Code, and Sections 361 and 726 of the Welfare and Institutions Code. (c) “Parent” does not include the state or any political subdivision of government. (d) “Parent” does not include a nonpublic, nonsectarian school or agency under contract with a local educational agency for the provision of special education or designated instruction and services for a child.
2.2
Age of Majority IDEA requires that the child and parent be notified of the age of majority rule one year prior to the child reaching 18 years of age. At the time the child turns 18, he/she will be recognized as an adult under California Education Code and will be able to exercise educational rights as provided for by federal and state laws. It may be impossible for a child with a disability to exercise his/her rights. If this is the case, the child may designate another person to approve and execute school programs or the child’s parents can apply for a traditional or limited conservatorship. California Education Code § 56041.5; Title 34 of the Code of Federal Regulations § 300.520. When an individual with exceptional needs reaches the age of 18, with the exception of an individual who has been determined to be incompetent under state law, the local educational agency shall provide any notice of procedural safeguards required by this part to both the individual and the parents of the individual. All other rights accorded to a parent under this part shall transfer to the individual with exceptional needs. The local educational agency shall notify the individual and the parent of the transfer of rights. Parent Revokes Consent for Special Education and Related Services IDEA was amended December 31, 2008, to clarify and strengthen regulations in Title 34 of the Code of Federal Regulations, Part 300, in the areas of parental consent for continued special education and related services. Title 34 of the Code of Federal Regulations § 300.300(b)(4) was revised to require that parental revocation of consent for the continued provision of special education and related services must be in writing and that upon revocation of consent, LEAs must
2.3
BP 1001 – Procedural Safeguards
Page 5
Desert Mountain Charter Special Education Local Plan Area (DMCS) (rev. 11/16)
Policy – Category 1000 (Community Relations) BP 1001 – Procedural Safeguards
provide the parent with PWN in accordance with Title 34 of the Code of Federal Regulations § 300.503 . If, at any time subsequent to the initial provision of special education and related services, a parent of a child with a disability revokes consent in writing for the continued provision of special education and related services, Charter LEAs: • May discontinue the provision of special education and related services to the child, but must provide PWN in accordance with Title 34 of the Code of Federal Regulations § 300.503 before ceasing the provision of these services; • May not use the procedures in subpart E of this part (including the mediation procedures under Title 34 of the Code of Federal Regulations § 300.506 or the due process procedures under Title 34 of the Code of Federal Regulations §§ 300.507 through 300.516 ) in order to obtain agreement or a ruling that the services may be provided to the child; • Will not be considered to be in violation of the requirement to make FAPE available to the child because of the failure to provide the child with further special education and related services; and • Is not required to convene an IEP team meeting or develop an IEP under Title 34 of the Code of Federal Regulations §§ 300.320 and 300.324 for the child for further provision of special education and related services. Upon receiving a written notice from the parent that he/she is revoking consent for special education and related services for his/her child, the Charter LEA should provide a written response to the parent no more than 10 days from receipt of the parent’s letter. The Charter LEA letter should contain the following in order to meet requirements for PWN: • Date services will end (it is recommended that special education and related services cease 10 school days from the date of the Charter LEA’s PWN/letter to the parent); • List of services (i.e., placement, accommodations, modifications, and/or supports, including behavioral supports) the child will no longer receive; • Date the child will be placed in general education (include a description of the general education placement and services to which the child will have access);
BP 1001 – Procedural Safeguards
Page 6
Desert Mountain Charter Special Education Local Plan Area (DMCS) (rev. 11/16)
Policy – Category 1000 (Community Relations) BP 1001 – Procedural Safeguards
• Information that the child will no longer be entitled to special education and related services and the protections under the IDEA and related provisions in the California Education Code; • Information that the child’s disability will not be taken into consideration when determining appropriate disciplinary action, nor will the child be entitled to the IDEA’s discipline protections;
• Information that if the parent later decides to have his/her child receive special education and related services, that he/she should contact the Charter LEA office. Inform the parent that this request will be treated as a request for an initial evaluation; • A copy of the DMCS Procedural Safeguards/Parent Rights (D/M 77) together with the PWN; and • Contact information for the Charter LEA office and the CDE. The Charter LEA should document this action by sending the PWN to the parent(s) by both U.S. Mail and Certified Mail, Return Receipt Requested. 3.0 Informal Process/Alternative Dispute Resolution (ADR) Before requesting a due process hearing, the LEA staff and the parent agree to meet informally to resolve any issue(s) using an alternative dispute resolution meeting for concerns relating to the identification, assessment, or education and placement of a child with a disability. 4.0 Mediation Only In addition, either party may file a request with the Office of Administrative Hearings (OAH) for a mediation only conference to be conducted by a person under contract with the OAH. Based on the mediation conference, the Charter LEA may resolve the issue(s) in a manner that is consistent with state and federal laws and is to the satisfaction of both parties ( Education Code § 56500.3 ). Attorneys may attend or otherwise participate only in those mediation conferences that are scheduled after the filing of a request for due process hearing ( Education Code §§ 56500.3 and 56501 ). This does not apply to mediation only conferences. If either of these processes fails to resolve the issue(s), either party may file for a state- level due process hearing.
BP 1001 – Procedural Safeguards
Page 7
Desert Mountain Charter Special Education Local Plan Area (DMCS) (rev. 11/16)
Policy – Category 1000 (Community Relations) BP 1001 – Procedural Safeguards
5.0
California Department of Education (CDE) Complaints The CDE resolves special education complaints. An individual, public agency, or organization may file complaints with the CDE. A complaint is a formal request to the CDE to investigate allegations of noncompliance with special education laws, federal or state. The complaint must include: 1. Statements that the LEA violated special education law within one year prior to the complaint being filed; 2. Facts on which such statements are based; 3. Signature and contact information for the complainant; 4. Child’s name, address, and school if alleging violations that are child specific; and 5. Proposed resolutions. Complaints must be filed within one year of the alleged violation. The CDE conducts and completes an investigation into the allegation within 60 days of receipt of the complaint.
Based on the CDE’s findings, it will prepare a complaint investigation report that provides the allegation summary; general investigative procedures; applicable law and regulations; findings of fact; report conclusions (compliance or noncompliance); and corrective actions and timelines, if applicable. Copies of the investigative report are sent to the complainant, the LEA, and the parent if different from the complainant. 6.0 Due Process Complaint Due process, under the IDEA, is the main course for resolving disputes between parents of children with disabilities and LEAs concerning identification, evaluation, placement, or the provision of FAPE ( Title 34 of the Code of Federal Regulations § 300.511 ). The IDEA requires the opportunity for a parent or a public agency to present a complaint with respect to any matter relating to the identification, evaluation, educational placement, or the provision of FAPE ( Title 34 of the Code of Federal Regulations § 300.507(a) ). A child who has reached the age of majority may file a due process complaint in his/her own name. Under the 2006 regulation at Title 34 of the Code of Federal Regulations § 300.511(e) , a party must file a due process complaint within two years of the date it knew or should have known about the alleged action that forms the basis of the complaint.
BP 1001 – Procedural Safeguards
Page 8
Desert Mountain Charter Special Education Local Plan Area (DMCS) (rev. 11/16)
Policy – Category 1000 (Community Relations) BP 1001 – Procedural Safeguards
A parent, the Charter LEA, and/or a child who is emancipated, a ward, or dependent of the court may initiate due process hearing procedures whenever ( Title 20 of the United States Code § 1415(b); Education Code § 56501 ): • There is a proposal to initiate or change the identification, assessment, or educational placement of the child or the provision of FAPE to the child; • There is a refusal to initiate or change the identification, assessment, or educational placement of the child or the provision of FAPE to the child; • The parent refuses to consent to an assessment of his/her child; or • There is a disagreement between a parent and the Charter LEA regarding the availability of a program appropriate for the child, including the question of financial responsibility, as specified in Title 34 of the Code of Federal Regulations § 300.403(b) . NOTE: Pursuant to Title 20 of the United States Code § 1415(b) , as amended by P.L. 108-446, effective July 1, 2005, and Title 34 of the Code of Federal Regulations § 300.507 , the Charter LEA is mandated to adopt procedures (1) requiring either party (the Charter LEA or the parent/guardian) or their attorney to provide notice of the request for a due process hearing to the other party, and (2) containing the requirement that the party may not have a due process hearing until the notice specified in items #1-3 below has been filed. The CDE is required to develop a model form to assist parents in filing a complaint and due process complaint notice. Parties requesting a due process hearing shall file their request with the OAH which is the designated contracted agency and provide a copy of the request, at the same time, to the other party ( Education Code § 56502 ). The complaint must include: 1. The name of the child, the child’s address, and the name of the school the child is attending; 2. A description of the nature of the problem of the child relating to such proposed initiation or change concerning the identification, evaluation, or educational placement of the child or the provision of FAPE, including facts relating to such problem; and 3. A proposed resolution of the problem to the extent known and available to the party at the time ( Title 34 of the Code of Federal Regulations § 300.508(b) ).
BP 1001 – Procedural Safeguards
Page 9
Desert Mountain Charter Special Education Local Plan Area (DMCS) (rev. 11/16)
Policy – Category 1000 (Community Relations) BP 1001 – Procedural Safeguards
A due process complaint shall be deemed sufficient unless the party receiving it notifies OAH in writing that the complaint does not meet the requirements. This must be done within 15 days of receiving the complaint. Then, within five days of receipt of the notice of insufficiency, OAH must make a determination as to whether the complaint is sufficient or not ( Title 34 of the Code of Federal Regulations § 300.508(d)(1) ).
A party may amend a due process complaint for only two reasons: 1. The other party consents in writing to the amended complaint or
2. OAH grants permission for the amended complaint. Due process timelines start over with an amended complaint. Timelines for due process begin when the party named in the complaint receives the complaint from the filer. A response to a due process complaint must be sent to OAH within 10 days of receiving it. The response must address the issues raised in the complaint by the complainant ( Title 34 of the Code of Federal Regulations § 300.508(f) ). NOTE: The IDEA 2004 Reauthorization made significant changes to the (1) timelines for filing a due process complaint, (2) procedures for amending the complaints, and (3) rules regarding the sufficiency of the complaint notice, see Title 20 of the United States Code § 1415(b) and (f) . Title 20 of the United States Code § 1415(f)(3)(C), as amended, specifies that a due process complaint must be filed within two years of the date that the parent/guardian or Charter LEA knew or should have known about the situation that forms the basis of the complaint. However, federal regulations at Title 34 of the Code of Federal Regulations § 300.662 , set a different timeline and require a one-year statute of limitations for filing a complaint. As amended by AB 1662 (Ch. 653, Statutes of 2005), Education Code § 56500.2 reflects the federal regulations and states that a complaint must be filed within one year of the alleged violation. It is likely that federal regulations will be amended to clarify the inconsistency. In the meantime, Charter LEAs should consult with legal counsel as to the appropriate timeline. Title 20 of the United States Code § 1415(c)(1) requires the Charter LEA to provide the following notice upon receipt of the due process complaint. The due process procedure consists of a series of steps ending with a hearing if needed. • Step 1 – Resolution Mandatory ( Title 34 of the Code of Federal Regulations § 300.510 ) The Charter LEA is required to convene a meeting with the parents and relevant members of the IEP team who have specific knowledge of the facts identified in the complaint. The resolution session:
BP 1001 – Procedural Safeguards
Page 10
Desert Mountain Charter Special Education Local Plan Area (DMCS) (rev. 11/16)
Policy – Category 1000 (Community Relations) BP 1001 – Procedural Safeguards
a. Must take place within 15 days of the LEA receiving notice of the parent’s complaint ( Title 34 of the Code of Federal Regulations § 300.510(a)(1) ); b. Must include a LEA representative who has decision-making authority ( Title 34 of the Code of Federal Regulations § 300.510(a)(1)(i) ); c. May not include an attorney for the Charter LEA unless the parent is accompanied by an attorney ( Title 34 of the Code of Federal Regulations § 300.510(a)(1)(ii) ); and d. Must provide the parents with the opportunity to discuss the complaint and the facts that form the basis of the complaint, and the LEA must be allowed the opportunity to resolve issues in the complaint ( Title 34 of the Code of Federal Regulations § 300.510(a)(2) ). Resolution session may be confidential or non-confidential. The parties decide which type of meeting they prefer at the beginning of the resolution session. If an agreement is reached during resolution, either party has three business days to void the agreement. There is no requirement for a resolution session when the Charter LEA files a due process complaint. • Step 2 – Mediation: Voluntary and Confidential If the complaint is not settled during the resolution session the next step is voluntary mediation. The mediator is an administrative law judge (ALJ) assigned by the OAH who is a neutral participant, skilled in methods of facilitating effective communication between the parties. As a mediator, the ALJ’s role is to manage the communication between the parties in order to settle the issues in the complaint. If the parties reach an agreement during mediation, it is binding, and the due process complaint is withdrawn. Any discussions or agreement reached during mediation are confidential and protected by law from being revealed to any other party. • Step 3 – Due Process Hearing If resolution and/or mediation are not successful in settling the complaint, the case moves to a due process hearing before a different ALJ. A telephonic pre-hearing conference will be scheduled with both parties before the first date of hearing to discuss the issues, documents, witnesses, and the length of days for the hearing.
BP 1001 – Procedural Safeguards
Page 11
Desert Mountain Charter Special Education Local Plan Area (DMCS) (rev. 11/16)
Policy – Category 1000 (Community Relations) BP 1001 – Procedural Safeguards
The ALJ from the OAH is in charge of the hearing just like a judge is in a trial. The ALJ rules on all procedural matters, facilitates the hearing, listens to the evidence and arguments of the parties, and writes a final decision, which is binding. The due process timeline is 45 calendar days from the receipt of a complaint for a due process hearing. The timeline does not include time used by a postponement requested by a party or granted by the OAH, or time used by the resolution session. Expedited hearings, which involve student discipline, must be held within 20 school days of receipt of the complaint and a written decision must be issued within 10 school days after the hearing. A party has the right to appeal the OAH decision to a state or federal court of competent jurisdiction within 90 days of the receipt of the decision, but no later. The hearing is digitally recorded and either party may request a written verbatim transcript of the hearing. Stay-Put The stay-put or status quo provision of the IDEA acts as an automatic preliminary injunction, preventing a party from unilaterally changing the child’s program or placement pending the resolution of the due process complaint or judicial action concerning the child’s program or placement. Stay-put is only in effect during due process ( Title 34 of the Code of Federal Regulations § 300.518(a) ). Due Process Complaints and General Liability The Charter LEA has the primary responsibility for ensuring that FAPE is available to children in the Charter LEA who are eligible for special education. The DMCS holds no jurisdiction, financially or decision making, over any due process complaints filed against its member Charter LEAs. If named as an individual in a due process complaint filing, the member Charter LEA agrees to dismiss the DMCS as a named participant and shall inform other parties of the DMCS’ role and responsibilities in terms of liability and due process filings. The DMCS Risk Pool Insurance Fund developed by member LEAs, provides revenue costs in designated areas which include Legal/Due Process/Fair Hearing expenditures for the DMCS and Charter LEA legal counsel related to compliance findings and due process hearings when approved procedures have been followed. NOTE: Legal assistance and representation for participating LEAs are coordinated by the Due Process Program Manager. All contacts with SELPA- retained attorneys or legal consultants shall be made only after approval of the Program Manager for Due Process. Any Charter LEA initiating contact with a
6.1
6.2
BP 1001 – Procedural Safeguards
Page 12
Desert Mountain Charter Special Education Local Plan Area (DMCS) (rev. 11/16)
Policy – Category 1000 (Community Relations) BP 1001 – Procedural Safeguards
legal advisor without prior approval will bear the cost of the billable time by the legal advisor.
BP 1001 – Procedural Safeguards
Page 13
Desert Mountain Charter Special Education Local Plan Area (DMCS) (rev. 11/16)
Policy – Category 1000 (Community Relations) BP 1001 – Procedural Safeguards
7.0
Prior Written Notice Prior Written Notice (PWN) is a procedural obligation that acts as a safeguard to ensure that a child’s (and parent’s) right to FAPE is not violated. PWN provides parents with written notification of decisions affecting the child and gives the parent the opportunity to object to those decisions before action is taken by the Charter LEA. PWN is often referred to as a § 300.503 letter pursuant to Title 34 of the Code of Federal Regulations § 300.503 , which requires a Charter LEA to provide written notice whenever it proposes or refuses to begin or change the identification, evaluation, or educational placement of a child or the provision of FAPE. PWN consists of these components: 1. It is a written document, not a verbal agreement or refusal to a request. It can be a separate letter or documented in the IEP notes; 2. It is addressed to the parent or guardian; and 3. It proposes or refuses a change in a child’s program or assessment. A PWN has seven required components: 1. A description of the action proposed or refused; 2. An explanation of why the action is proposed or refused; 3. A description as to the basis of the actions; 4. A reference to the procedural protections under IDEA; 5. A reference of sources to contact to provide assistance in understanding procedural protection; 6. A description of other options considered and why those options were rejected; and 7. A description of other relevant factors. ( Title 34 of the Code of Federal Regulations § 300.503(b) and Education Code § 56500.4(b) ) PWN must be provided to the parents of a child whenever the Charter LEA: 1. Proposes to initiate or change or
BP 1001 – Procedural Safeguards
Page 14
Desert Mountain Charter Special Education Local Plan Area (DMCS) (rev. 11/16)
Policy – Category 1000 (Community Relations) BP 1001 – Procedural Safeguards
2. Refuses to initiate or change the identification, evaluation, educational placement of the child, or the provision of FAPE to the child. Children with disabilities and their parents shall be provided written notice of their rights in language easily understood by the general public and in the primary language of the parent or other mode of communication used by the parent, unless to do so is clearly not feasible. The PWN is received when the Charter LEA initiates or refuses the request to a change in the child’s identification, assessment, or the provision of FAPE to the child. The notice shall include, but not be limited to, those rights prescribed by Education Code § 56341 ( Education Code § 56341; Title 34 of the Code of Federal Regulations § 300.503 ). If the native language or other mode of communication of the parent is not a written language, the Charter LEA shall take steps to ensure that ( Title 34 of the Code of Federal Regulations § 300.503 ): 1. The notice is translated orally or by other means to the parent in his/her native language or other mode of communication; 2. The parent understands the contents of the notice; and 3. There is written evidence that items 1 and 2 have been satisfied. PWN must be given when: 1. Assessment: The Charter LEA must send PWN regarding its refusal to assess or reassess; 2. Request for independent educational evaluation (IEE); 3. Parental request for a change to the IEP; 4. Parental unilateral placement of a child outside the LEA and there is a request for reimbursement; 5. A change in placement; 6. A change in location resulting in a change of placement; 7. A change in a service provider; 8. Parent revocation of consent for special education services; and/or 9. Child exits from special education:
BP 1001 – Procedural Safeguards
Page 15
Desert Mountain Charter Special Education Local Plan Area (DMCS) (rev. 11/16)
Policy – Category 1000 (Community Relations) BP 1001 – Procedural Safeguards
a. b.
Graduation;
No longer eligible. The elements of PWN may be included in the IEP notes during an IEP meeting. A separate PWN document is not required when the PWN elements are included in the IEP. 8.0 Appendices A. Notice of Procedural Safeguards/Parents’ Rights (DM 77) B. Prior Written Notice Template and Sample Letters C. Surrogate Parents in California (url:
https://www.cde.ca.gov/sp/se/sr/documents/surrogateparents.pdf) D. Frequently Asked Questions (FAQs): Mediation and Due Process E. Flow Chart: Due Process
9.0
Legal References
• California Education Code o § 56028, § 56041.5, § 56050, § 56195.8, § 56321, § 56321.5, § 56341, §§ 56501 – 56506 • Title 34 of the Code of Federal Regulations (CFR) o § 300.300(b)(1), (2), (4), § 300.503, § 300.503(b), § 300.504, § 300.506, § 300.507, § 300.508(b), § 300.508(d)(1), § 300.508(f), § 300.510, § 300.511, § 300.516, § 300.518(a), § 300.519, § 300.520, § 300.324
• Title 20 of the United States Code (USC) o §§ 1400 – 1482 • Government Code o §§ 7579.5 – 7579.6 • Title 5 of the California Code of Regulations (CCR) o §§ 3080 - 3089
BP 1001 – Procedural Safeguards
Page 16
Desert Mountain Charter Special Education Local Plan Area (DMCS) (rev. 11/16)
Appendix A: Notice of Procedural Safeguards Parents’ Rights (SELPA form DM 77)
A copy of the Notice of Procedural Safeguards is available in for download on the CAHELP website. • English: https://www.cahelp.org/parents_students/parent_resources/parent_rights • Spanish: https://www.cahelp.org/parents_students/parent_resources/spanish_prights
BP 1001 – Procedural Safeguards
Page 17
Desert Mountain Charter Special Education Local Plan Area (DMCS) (rev. 11/16)
Appendix B: Prior Written Notice Template Includes Sample PWN Letters
BP 1001 – Procedural Safeguards
Page 18
Desert Mountain Charter Special Education Local Plan Area (DMCS) (rev. 11/16)
Appendix B: Sample PWN 2 Independent Educational Evaluation (IEE)
Date Parent/Guardian
Address Line 1 Address Line 2 Subject: Assessment/Proposal to Initiate or Change the Identification - Jane Doe (DOB: 01/00/00) Dear Parent/Guardian, Pursuant to 34 Code of Federal Regulations (C.F.R.) Section 300.503, the LEA is required to provide written notice to you whenever it proposes to begin or change the identification, evaluation, or educational placement of your child or the provision of FAPE to your child. The LEA is proposing to conduct an evaluation to determine eligibility for special education for your child, Jane Doe, Date of Birth: 01/00/00. The evaluation process starts with a review of information that the LEA already knows about Jane. Following this review, the evaluation team may need to collect additional information in order to determine eligibility for special education and related services. Your consent will be required before the LEA can conduct additional assessments or place Jane in a special education program. As you know, the LEA Teacher Assistance Team (TAT) has been working with you and Jane’s teacher to increase her reading ability. The LEA considered strategies used during the TAT intervention process, which included such things as specific practice on sound-letter relationships, phonemic awareness, and part-to-whole decoding. However, in spite of our joint efforts, Jane has not been making adequate progress in acquiring basic reading skills. The proposed special education evaluation for Jane will begin with a review of what the LEA knows about her current reading status, learning modes, and general aptitude. We have considered waiting until April in order to give Jane more time to catch on; however, we feel that waiting would likely place her further behind. Your written permission must be given before the LEA can assess your child to determine eligibility. You have the right to be familiar with the assessment procedures and types of tests that may be given to your child. After the assessment is completed, you will be notified in writing of a meeting to discuss the results of the evaluation and to make recommendations. Your input is vital to this discussion, and you will be included in the decisions regarding any special education eligibility. If your child is found eligible for special education services, a full range of program options will be discussed.
BP 1001 – Procedural Safeguards
Page 19
Desert Mountain Charter Special Education Local Plan Area (DMCS) (rev. 11/16)
Appendix B: Sample PWN 2 Independent Educational Evaluation (IEE)
PRIOR WRITTEN NOTICE Re: Assessment/Proposal to Initiate or Change Identification – Jane Doe Page 2
If you disagree with the LEA’s proposal to initiate or change the identification of your child, or if you have other questions about your rights under the IDEA, please consult the enclosed IDEA procedural safeguards. You may also contact the following agencies for assistance: California Department of Education
1430 N. Street, Suite 2401 Sacramento, CA 95814-5901 and/or Desert Mountain Special Education Local Plan Area (DMSELPA) 17800 Highway 18 Apple Valley, CA 92307 We look forward to working with you and Jane. Sincerely,
Name Title/Position ENCLOSUREs: Notice of Parental Rights and Procedural Safeguards, Transition Summary of Performance
BP 1001 – Procedural Safeguards
Page 20
Desert Mountain Charter Special Education Local Plan Area (DMCS) (rev. 11/16)
Appendix B: Sample PWN 2 Independent Educational Evaluation (IEE)
Date Parent/Guardian
Address Line 1 Address Line 2 Subject: LEA Independent Educational Evaluation (IEE) dated xx/xx/xxxx – Johnny Doe (DOB 01/11/00) Dear Parent/Guardian, This letter is in response to your letter that I received on xx/xx/xxxx, in which you stated you disagreed with the (insert LEA’s name) assessment on xx/xx/xxxx of an initial evaluation of a Multidisciplinary Psycho-educational Evaluation on your child, Johnny Doe , date of birth: 01/11/00 . Please consider this, the LEA’s response to your request under 34 Code of Federal Regulations (C.F.R.) Sections 300.502 and California Education Code Section 56329(b). Under California Education Code Section 56329(c), the LEA will be exercising its right to a due process hearing pursuant to Chapter 5 (commencing with Section 56500) to show that its assessment is appropriate. The LEA is refusing your request for an Independent Educational Evaluation (IEE) based on the fact that the LEA evaluation was comprehensive and appropriate. The assessment included all the components of a comprehensive evaluation required by state regulations, including information provided by the parent or primary caregiver (if the student is younger than 18 years of age). Information regarding Johnny’s current classroom performance (observations and assessments), and the observations of his/her teachers and other providers of instructional or educational services were also included. Johnny’s primary language, racial, and ethnic background were considered prior to selection and interpretation of evaluation procedures and measures. All assessment procedures measure a limited sample of a person’s total repertoire. The selected measures should only be interpreted within the limits of their measured validity. Summary of assessment(s) including results of the child’s progress in the general education curriculum and instructional implications were reviewed to ensure progress. Additionally, educational history was based on a review of Johnny’s records and parent information. Developmental information was provided through a social and developmental form that was completed by Parent/Guardian. Tests/inventories completed: 1. Wide Range Assessment of Memory and Learning – 2nd Edition, (WRAML-2) 2. Woodcock-Johnson Tests of Achievement – 3rd Edition, (WJ-III) 3. Test of Auditory Processing Skills – 3rd Edition, (TAPS-III)
BP 1001 – Procedural Safeguards
Page 21
Desert Mountain Charter Special Education Local Plan Area (DMCS) (rev. 11/16)
Appendix B: Sample PWN 2 Independent Educational Evaluation (IEE)
4. Beery-Buktenica Developmental Test of Visual-Motor Integration – 5th Edition, (VMI-5) 5. Test of Visual-Perceptual Skills – 3rd Edition, (TVPS-3) PRIOR WRITTEN NOTICE Re: Independent Educational Evaluation (IEE) Page 2 6. Connors’ 3-Parent Short 7. Connors’ 3-Teachers Short 8. The Attention Deficit Disorder Evaluation Scale – 3rd Edition: Home Version, (ADDES-3 HV) 9. The Attention Deficit Disorder Evaluation Scale – 3rd Edition: School Version, (ADDES-3 SV) 10. Behavior Assessment System for Children, 2nd Edition – (BASC-2) The LEA psychologist who assessed your child has 13 years of experience and is qualified to complete psycho-educational evaluations per California Department of Education. Your statement that your child is failing to make expected progress toward the initial IEP goals is premature as the goals are expected to be met by the next annual IEP, which does not take place until (Date of Next Annual IEP) and the fact that on (Date IEP Meeting) an IEP was held to adjust his academic placement based on a review of his progress at the time. You have protections under state and federal procedural safeguard provisions. Please refer to the enclosed Notice of Procedural Safeguards for an explanation of these rights. For further information about your rights or the proposed action and/or referral, contact (Contact Person Name) at (760) 000-0000 , 12345 School Lane, Anytown, CA 90000 . Sincerely, 11. Parent Rating Scales-Adolescent: (PRS-A [Ages 12-21]) 12. Teacher Rating Scales-Adolescent (TRS-A [Ages 12-21])
Name Title/Position
ENCLOSURE: NOTICE OF PARENTAL RIGHTS AND PROCEDURAL SAFEGUARDS
BP 1001 – Procedural Safeguards
Page 22
Desert Mountain Charter Special Education Local Plan Area (DMCS) (rev. 11/16)
Appendix B: Sample PWN 4 Unilateral Placement and Reimbursement
Date Parent/Guardian
Address Line 1 Address Line 2 Subject: Parent Request to Initiate or Change Identification – Johnny Doe (DOB 01/11/00) Dear Parent/Guardian, The LEA is in receipt of your letter dated February 1, 2008 , requesting that a one-to-one-aide be assigned to your child Johnny Doe , date of birth: 01/00/00. Please consider this the LEA’s response to your request under 34 Code of Federal Regulations (C.F.R.) Section 300.300 and 300.503. The LEA is denying your request to assign a one-to-one aide to Johnny at this time. Based on the information below, we believe that Johnny does not require a one-to-one aide in order to benefit from his educational program. In reaching this decision, the LEA considered the following information: Special Circumstances Instructional Assistance (SCIA) Evaluation conducted in November of 2007, a SCIA Evaluation Report dated 12/2/07, Johnny ’s first semester report card and progress report, his IEP dated 10/31/07, as well as his triennial psycho-educational report dated 5/31/07. Also, during the 12/14/07 IEP meeting, the team considered assigning a classroom aide during Johnny ’s math and science courses, which are the only courses he is having difficulty. The team discussed the possible reasons for Johnny ’s difficulty in these classes: failure to turn in homework and missing quizzes due to asthma attacks and leaving school early to visit his grandparents. The team added a goal for homework completion and an accommodation to permit Johnny to take quizzes he misses due to asthma attacks. Therefore, the team determined that the new goal and accommodation would address his difficulties in math and science, whereas adding an aide to these classes would likely cause Johnny to revert to his negative behaviors that he displayed last year and increase his dependence on an adult to socialize and communicate appropriately with his peers. The LEA also considered that when an aide was assigned to Johnny last school year, his negative behaviors increased (inappropriately touching classmates and yelling out answers during classroom instruction). Johnny was overly dependent upon his aide for initiating games and conversations with his peers and resisted volunteering in class. Since the beginning of the school year, when he started (School Name) without an aide, Johnny initiates games and conversations with only one verbal prompt by the recess aide and appropriately raises his hand during class to respond to questions with the teacher and classroom aide using only 2 visual prompts.
BP 1001 – Procedural Safeguards
Page 23
Desert Mountain Charter Special Education Local Plan Area (DMCS) (rev. 11/16)
Appendix B: Sample PWN 4 Unilateral Placement and Reimbursement
If you disagree with the LEA’s proposal to initiate or change the identification of your child, or if you have other questions about your rights under the IDEA, please consult the enclosed IDEA procedural safeguards. You may also contact the following agencies for assistance: PRIOR WRITTEN NOTICE Re: Parent Request to Initiate or Change IEP Page 2 California Department of Education
1430 N. Street, Suite 2401 Sacramento, CA 95814-5901 and/or Desert Mountain Special Education Local Plan Area (DMSELPA) 17800 Highway 18 Apple Valley, CA 92307 Sincerely,
Name Title/Position
ENCLOSURE: NOTICE OF PARENTAL RIGHTS AND PROCEDURAL SAFEGUARDS
BP 1001 – Procedural Safeguards
Page 24
Desert Mountain Charter Special Education Local Plan Area (DMCS) (rev. 11/16)
Page 1 Page 2 Page 3 Page 4 Page 5 Page 6 Page 7 Page 8 Page 9 Page 10 Page 11 Page 12 Page 13 Page 14 Page 15 Page 16 Page 17 Page 18 Page 19 Page 20 Page 21 Page 22 Page 23 Page 24 Page 25 Page 26 Page 27 Page 28 Page 29 Page 30 Page 31 Page 32 Page 33 Page 34 Page 35 Page 36 Page 37 Page 38 Page 39 Page 40 Page 41 Page 42 Page 43 Page 44 Page 45 Page 46 Page 47 Page 48 Page 49 Page 50 Page 51 Page 52 Page 53 Page 54 Page 55 Page 56 Page 57 Page 58 Page 59 Page 60 Page 61 Page 62 Page 63 Page 64 Page 65 Page 66 Page 67 Page 68 Page 69 Page 70 Page 71 Page 72 Page 73 Page 74 Page 75 Page 76 Page 77 Page 78 Page 79 Page 80 Page 81 Page 82 Page 83 Page 84 Page 85 Page 86 Page 87 Page 88 Page 89 Page 90 Page 91 Page 92 Page 93 Page 94 Page 95 Page 96 Page 97 Page 98 Page 99 Page 100 Page 101 Page 102 Page 103 Page 104 Page 105 Page 106 Page 107 Page 108 Page 109 Page 110 Page 111 Page 112 Page 113 Page 114 Page 115 Page 116 Page 117 Page 118 Page 119 Page 120 Page 121 Page 122 Page 123 Page 124 Page 125 Page 126 Page 127 Page 128 Page 129 Page 130 Page 131 Page 132 Page 133 Page 134 Page 135 Page 136 Page 137 Page 138-139 Page 140 Page 141 Page 142 Page 143 Page 144 Page 145 Page 146 Page 147 Page 148 Page 149 Page 150 Page 151 Page 152 Page 153 Page 154 Page 155 Page 156 Page 157 Page 158 Page 159 Page 160 Page 161 Page 162 Page 163 Page 164 Page 165 Page 166 Page 167 Page 168 Page 169 Page 170 Page 171 Page 172 Page 173 Page 174 Page 175 Page 176 Page 177 Page 178 Page 179 Page 180 Page 181 Page 182 Page 183 Page 184 Page 185 Page 186 Page 187 Page 188 Page 189 Page 190 Page 191 Page 192 Page 193 Page 194 Page 195 Page 196 Page 197 Page 198 Page 199 Page 200 Page 201Made with FlippingBook - professional solution for displaying marketing and sales documents online