CALIFORNIA ASSOCIATION OF HEALTH AND EDUCATION LINKED PROFESSIONS CAHELP
DMSELPA 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 ....................................................................................................... 4 2.2 Procedural Safeguards ............................................................................................... 5 2.3 Age of Majority ........................................................................................................... 5 2.4 Parent Revokes Consent for Special Education and Related Services ....................... 6 3.0 P RIOR W RITTEN N OTICE .................................................................................................. 7 4.0 D UE P ROCESS P ROCEDURES ............................................................................................. 9 4.1 Stay Put ..................................................................................................................... 12 4.2 Due Process Complaints and General Liability ....................................................... 12 5.0 A PPENDICES ................................................................................................................... 15 6.0 L EGAL R EFERENCES ...................................................................................................... 15
1.0
Introduction
The Desert Mountain Special Education Local Plan Area (DMSELPA) is committed to the assessment, identification, and placement of students with exceptional needs in the appropriate and least restrictive environment. During these processes, parents are afforded their rights through procedural safeguards that are established in accordance with state and federal guidelines. A due process hearing can be initiated at any time during these processes by the parent, the student, or the school district. Hearings may be filed when a dispute exists between the parent and the education agency providing special education services regarding the student’s eligibility for special educatio n, need for assessment, and/or the student’s program or services. Alternative options and guidelines for filing are outlined in this chapter. If programs and services are not provided according to the Individualized Education Program (IEP), the parent may file a complaint with the California Department of Education (CDE) as outlined in DMSELPA Policy Chapter 8.
Each participating Local Education Agency (LEA) shall ensure that parents receive written notification of their procedural safeguards including their right to file a complaint
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for a due process hearing. A copy of the procedural safeguards shall be given to the parents and explained as needed:
1. Upon initial referral for evaluation;
2. Upon each notification of an IEP meeting;
3. Upon reevaluation of the child;
4. Upon receipt of the first state complaint;
5. Upon receipt of the first due process complaint;
6. In accordance with discipline procedures; and
7. Upon a request by a parent.
The notice of procedural safeguards shall be available in the primary language of parents whose primary language is not English, unless to do so is clearly not feasible. The written notice shall be in language easily understood by the general public and shall include the following:
1. The right to initiate a referral for a child to determine eligibility for special education services;
2. The right to obtain an independent educational assessment if there is a disagreement with a district assessment; and
3. The right to participate in the development of the IEP and to be informed of the availability of free appropriate public education and of all available alternative programs, both public and nonpublic.
Planning for the needs of non-English speaking parents shall include access to interpreters and translators, unless to do so clearly is not feasible.
2.0
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
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the federal and state procedural safeguards that were provided in the notice of parent rights pursuant to Section 56321.
(a) “Parent” means any of the
California Education Code § 56028.
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 behalf of a child, then that person or persons shall be determined to be the “parent” for purposes of this part, Article 1 (commencing
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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.
2.1
Surrogate Parents
Federal Regulation, 34 C.F.R. § 300.519 , and California Education Code § 56050 , mandate the appointment of a surrogate parent to ensure the educational rights of a child with exceptional needs 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 DMSELPA staff supports the utilization of surrogate parents. LEA staff will provide training for surrogate parent nominees. Individual LEAs will determine which students 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 special education students, 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 student. For example, the volunteer cannot be employed by any LEA or hold a position that might restrict or bias his/her ability to make decisions regarding the student’s educational needs. Once the prospective surrogate has gained sufficient knowledge, the LEA is free to appoint the parent to serve as a surrogate for students with exceptional needs within that LEA. The surrogate parent may represent the student in matters relating to identification, assessment, instructional planning and development, educational placement, reviewing and revising the individualized education program, and in all other
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matters relating to the provision of a free appropriate public education for the student.
2.2
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 DMSELPA procedural safeguards (DM 77). These are provided 1) when the student is being referred for an evaluation for special education services for the first time; 2) when a written notice of an IEP meeting is sent to the parent; 3) before the student is reassessed; 4) when the parent registers a complaint or requests for a mediation or hearing with the California Department of Education (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 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. A complete copy of the DMSELPA Notice to Parent/Guardian/Surrogate regarding parental procedural safeguards is available in both English and Spanish (DM 77 and DM 77s) and is available through the district special education office, DMSELPA and DMSELPA website.
2.3
Age of Majority
Title 34 of the California Code of Regulation § 300.520; California Education Code § 56041.5. 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 education 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 the parent under this part shall transfer to the individual with exceptional needs. The local education agency shall notify the individual and the parent of the transfer of rights.
IDEA requires that the student and parent be notified of the age of majority rule one year prior to the student reaching 18 years of age. At the time the student
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turns 18, he/she will be recognized as an adult under California Education Code and will be able to exercise parent rights as provided for by federal and state law. It may be impossible for a student with exceptional needs to exercise his/her rights. If this is the case, the student may designate another person to approve and execute school programs or the student’s parents can apply for a traditional or limited conservatorship.
2.4
Parent Revokes Consent for Special Education and Related Services
IDEA was amended December 31, 2008, to clarify and strengthen regulations in Title 34, Code of Federal Regulations, Part 300 , in the areas of parental consent for continued special education and related services. 34 C.F.R. § 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 provide the parent with prior written notice in accordance with 34 C.F.R. § 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, LEAs: • May discontinue the provision of special education and related services to the child, but must provide prior written notice in accordance with 34 C.F.R. § 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 34 C.F.R. § 300.506 or the due process procedures under 34 C.F.R. §§ 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 a free appropriate public education (FAPE) available to the child because of the failure to provide the child with further special education and related services • Is not required to convene an individualized education program (IEP) team meeting or develop an IEP under 34 C.F.R. §§ 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 LEA should provide a written response to the parent no more than 10 days from receipt of the
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parent’s letter. The LEA letter should contain the following in order to meet requirements for prior written notice:
• Date services will end. (It is recommended that special education and related services cease 10 school days from the date of the LEA’s prior written notice/letter to the parent.);
• List of services (i.e., placement, accommodations, modifications, and/or supports, including behavioral supports) the student will no longer receive;
• Date the student will be placed in general education. (Include a description of the general education placement and services to which the student will have access.); • Information that the student 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 student’s disability will not be taken into consideration when determining appropriate disciplinary action, nor will the studen t 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 LEA office. Inform the parent that this request will be treated as a request for an initial evaluation;
• A copy of the DMSELPA Procedural Safeguards/Parent Rights (DMSELPA Form DM 77) together with the prior written notice;
• Contact information for the LEA office and the California Department of Education (CDE).
The LEA should document this action by sending the prior written notice to the parent(s) by U.S. Mail and Certified Mail, Return Receipt Requested.
3.0
Prior Written Notice
Prior Written Notice (PWN) is a procedural obligation that acts as a safeguard to ensure that a student’s (and parent’s) right to a free appropriate public education 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 LEA. PWN is often referred to as a 300.503 letter pursuant to 34 C.F.R. § 300.50 3, which requires a LEA to provide written notice whenever it proposes or refuses to begin or
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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 an oral agreement or refusal. It can be a separate letter or documented in the IEP notes.
2. It is addressed to the parent or guardian.
3. It proposes or refuses a change in a student’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.
7. A description of other relevant factors
[ 34 C.F.R. 300.503(b) and E.C. 56500.4(b) ]
PWN must be provided to the parents of a student whenever the LEA:
•
Proposes to initiate or change; or
• Refuses to initiate or change: the identification, evaluation, educational placement of the child, or the provision of FAPE to the child.
Additionally, under California law, parents have the right to receive PWN in their native language when the LEA initiates or refuses the request to a chang e in the student’s identification, assessment, or educational placement in special education.
PWN must be given when:
1. Assessment - The LEA must send PWN regarding its refusal to assess or reassess
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2. Request for Independent Educational Evaluation (IEE)
3. Parental request for a change to the IEP
4. Parental unilateral placement of a student outside the public school district and 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
9. Student exits from special education
a. Graduation
b. 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.
4.0
Due Process Procedures
Due process, under the IDEA, is the main vehicle for resolving disputes between parents of children with disabilities and LEAs concerning identification, evaluation, placement or provision of FAPE. 34 C.F.R. § 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, or educational placement or provision of FAPE. 34 C.F.R. § 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 34 C.F.R. § 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. The party initiating the due process complaint must provide a copy of the complaint to the other as well as the Office of Administrative Hearings (OAH). The complaint must include the following:
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1. The name of the student, the student’s address and the name of the school the student is attending.
2. A description of the nature of the problem of the student 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.
3. A proposed resolution of the problem to the extent known and available to the party at the time. 34 C.F.R. § 300.508(b)
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 [ 34 C.F.R. § 300.508(d)(1)]. This must be done within 15 days of receiving the complaint [ 34 C.F.R. § 300.508(d)(1) ]. 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.
A party may amend a due process complaint only for two reasons:
1. The other party consents in writing to the amended complaint.
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.
The response to a due process complaint must be sent within 10 days of receiving it. The response must address the issues raised in the complaint. 34 C.F.R. § 300.508(f)
The due process procedure consists of a series of steps ending with a hearing if needed.
• Step 1 - Resolution [ 34 C.F.R. § 300.510 ] Mandatory
The 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:
a. must take place within 15 days of the LEA receiving notice of t he parent’s complaint [ 34 C.F.R. § 300.510(a)(1) ]
b. must include a district representative who has decision-making authority [ 34 C.F.R. § 300.510(a)(1)(i) ]
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c. may not include an attorney for the LEA unless the parent is accompanied by an attorney [ 34 C.F.R. § 300.510(a)(1)(ii) ]
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 it [ 34 C.F.R. § 300.510(a)(2) ]
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 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 OAH who is a neutral participant, skilled in methods of facilitating effective communication b etween 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 agreement reached or discussions during mediation are confidential and protected by law from being revealed in any other place.
•
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 length of days for the hearing. The ALJ from OAH is in charge of the hearing just like a judge is in a trial. The ALJ rules on all procedural matters, rules 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 OAH, or time used by the resolution session. Expedited hearings, which involve student discipline, must be held within 20 school days of the receipt of the complaint, and a written decision must be issued within 10 school days after the hearing.
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A party has the right to appeal the 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 recorded and either party may request a written verbatim transcript of the hearing.
4.1
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 student’s program or placement pending the resolution of the due process complaint or judicial action concerning the student’s program or placement. Stay -put is only in effect during due process. 34 C.F.R § 300.518(a)
4.2
Due Process Complaints and General Liability
The LEA has the primary responsibility for ensuring that a free appropriate public education (FAPE) is available to students in the LEA who are eligible for special education. The DMSELPA holds no jurisdiction, financially or decision making, over any due process complaints filed against its member LEAs. If named as an individual in a due process complaint filing, the member LEAs agree to dismiss the DMSELPA as a named participant and shall inform other parties of the DMSELPA role and responsibilities in terms of liability and due process filings.
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Due Process Hearing Deadlines Complaint: Filed by student or district 34 C.F.R. § 300.5081
10 DAYS AFTER RECEIPT OF COMPLAINT 1. Response: District’s response to allegations due. § 300.508 2. PWN: If district has not given parent Prior Written Notice (“PWN”) under § 300.503 , it must do so now. § 300.508 15 DAYS AFTER RECEIPT OF COMPLAINT 1. NOI and Motion to Dismiss: Notice of Insufficiency (“NOI”) due. § 300.508 2. Resolution Meeting Offered: Parents, relevant members of IEP team, and decision-maker must attend, but no district attorney unless parent brings attorney. Alternatively, parties may agree in writing to waive resolution meeting and mediate instead. § 300.510 a) Settlement: If a resolution is reached, parties must draft agreement, but either party may void it within three business days. § 300.501 11 DAYS BEFORE HEARING (i.e., “more than 10 days before the proceeding begins”) 1. Statutory Offer: May be provided to opposing counsel. If parties litigate and parent receives less than the statutory offer, parent is not entitled to attorney’s fees accrued after the statutory offer. 20 USC § 1415 (i)(3)(D) & (F); § 300.518
10 DAYS BEFORE HEARING 1. Hearing Brief: Optional per pre-hearing order but no more than 10 pages.
5 BUSINESS DAYS BEFORE THE HEARING 1. NPW and List of Doc Evidence Notice of Potential Witnesses (“NPW”) and List of Documentary Evidence must be served on opposing party. § 300.512 5 CALENDAR DAYS BEFORE HEARING 1. Amended Complaint: A party may amend if: (1) the other party consents in writing or (2) the hearing officer grants permission to amend but no less than five days before the hearing. § 300.508(d)
90 DAYS FROM DATE OF DECISION 1. An aggrieved party may appeal the decision to state or federal court. § 300.515
1 All further statutory references are to 34 Code of Federal Regulations unless otherwise noted.
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5.0
Appendices
A. DMSELPA Form DM 77 Notice of Procedural Safeguards
B. Prior Written Notice (PWN) Template and Sample Letters
C. Surrogate Parents in California
D. Frequently Asked Questions (FAQs) – Mediation and Due Process
E. Due Process Flow Chart
6.0
Legal References
•
California Education Code o
§ 56041.5, § 56050, § 56500.1, § 5600.4(b), § 56028
• Title 34 of the Code of Federal Regulations (CFR) o
§ 300.300(b)(4), § 300.320, § 300.324, § 300.501, § 300.503, 300.503(b), §§ 300.507 – 300.516, § 300.518(a), § 300.519, § 300.520
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Appendix A: SELPA Form DM 77
Notice of Procedural Safeguards (Parents’ Rights)
NOTICE OF PROCEDURAL SAFEGUARDS The Individuals with Disabilities Education Act (IDEA) Part B
This information provides parents, legal guardians, and surrogate parents of children with disabilities from three years of age through age 21 an overview of their educational rights, sometimes called procedural safeguards . This information is your Notice of Procedural Safeguards as required under the Individuals with Disabilities Education Act (IDEA). This notice is also provided for students who are entitled to these rights at age 18. (NOTE: The term LEA (local education agency) is used throughout this document to describe any public education agency responsible for providing your child's special education program. The term assessment is used to mean evaluation or testing.) Introduction: The IDEA is a Federal law that requires LEAs to provide a free appropriate public education (FAPE) to eligible children with disabilities. "A free appropriate public education" means special education and related services provided as described in an individualized education program (IEP) and under public supervision, to your child at no cost to you. When you have a concern about your child's education, it is important that you call or contact your child's teacher or administrators to talk about your child and any problems you see. Staff in your LEA or special education local plan area (SELPA) can answer questions about your child's education, your rights and procedural safeguards. When you have a concern, it is this informal conversation that often solves the problem and helps maintain open communication. You may also want to contact one of the California parent organizations (Family Empowerment Centers and Parent Training Institutes), which were developed to increase collaboration between parents and educators to improve the educational system. Contact information for these organizations is found on the California Department of Education Parent Organizations web page (http://www.cde.ca.gov/sp/se/aq/caprntorg.asp). Prior Written Notice: The LEA must inform you about proposed evaluations of your child in a written notice or an assessment plan within 15 days of your written request for evaluation that is understandable and in your native language or other mode of communication unless it is clearly not feasible to do so. This notice must be given when the LEA proposes or refuses to initiate a change in the identification, assessment, or educational placement of your child with special needs or the provision of a free appropriate public education. If you refuse consent for the initial or continued placement and receipt of special education and related services for your child, the LEA is not required to develop an IEP and is not considered to be in violation of the requirement to make available a free and appropriate public education. You may only revoke consent in writing and the LEA must then provide you written notice that services for your child will be discontinued. The LEA must also provide reasonable written prior notice that your child will be aging out (reaching age 22)
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Appendix A: SELPA Form DM 77
Notice of Procedural Safeguards (Parents’ Rights)
or graduating from high school with a regular high school diploma because graduation from high school constitutes a change in placement.
The Notice of Procedural Safeguards must be given to you (Education Code section 56301(d)(2)):
• Upon initial referral for special education
Once each year
•
When you request them
•
Your request for an evaluation
•
• The first occurrence of mediation or a due process hearing
• Decision made to make a removal that constitutes a change of placement Parent Participation: You have the right to refer your child for special education services. You must be given opportunities to participate in any decision-making meeting regarding your child's special education program. You have the right to participate in IEP meetings about the identification (eligibility), assessment, and educational placement of your child and other matters relating to your child's free appropriate public education. You also have the right to participate in the development of the IEP and to be informed of the availability of free appropriate public education including all program options and of all available alternative programs, both public and nonpublic. You have the right to record electronically the proceedings of the IEP team on an audiotape recorder. The law requires that you notify the LEA at least 24 hours prior to meeting if you intend to record the proceedings. If the LEA initiates the notice of intent to audio record a meeting and you object or refuse to attend the meeting because it will be audio recorded, the meeting shall not be audio recorded. Surrogate Parents: LEAs must ensure that an individual is assigned to act as a surrogate parent for the parents of a child with a disability when a parent cannot be identified, and the LEA cannot discover the whereabouts of a parent. A surrogate parent may be appointed if the child is an unaccompanied homeless youth, adjudicated dependent, or ward of the court under the State Welfare and Institution Code and the child is referred to special education or already has an IEP (34 CFR 300.519; EC 56050; GC 7579.5 and 7579.6) . Parent Consent: You must give informed, written consent before your child's first special education assessment can proceed and before the LEA can provide your child's special education program. You have 15 days from the receipt of the proposed assessment plan to arrive at a decision. The assessment may begin immediately upon receipt of your consent and
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Appendix A: SELPA Form DM 77
Notice of Procedural Safeguards (Parents’ Rights)
must be completed, and an IEP developed within 60 days of your consent. In the case of reevaluations, the LEA must document reasonable attempts to obtain parental consent. If the parents do not respond to these attempts, the LEA may proceed with the reevaluation without consent (34 CFR 300.300; EC 56506(e) and (d), and 56346). If you do not provide consent for an initial assessment or fail to respond to a request to provide consent, the LEA may pursue the initial assessment by utilizing due process procedures. If you refuse to consent to the initiation of services, the LEA will not provide special education and related services and will not seek to provide services through due process. If you consent in writing to the special education and related services for your child but do not consent to all of the components of the IEP, those components of the program to which you have consented must be implemented without delay. If the LEA determines that the proposed special education program component to which you do not consent is necessary to provide a free appropriate public education to your child, a due process hearing must be initiated. If a due process hearing is held, the hearing decision shall be final and binding. Consent to Bill California Medi-Cal: Release/Exchange Information for Health-Related Special Education and Related Services . LEAs may submit claims to California Medi-Cal for covered services provided to Medi-Cal eligible children enrolled in special education programs. The Medi-Cal program is a way for LEAs and/or County Offices of Education (COEs) to receive Federal funds to help pay for health-related special education and related services. Your consent is voluntary and can be revoked at any time. If you do revoke consent, the revocation is not retroactive. Consent will not result in denial or limitation of community- based services provided outside the school. If you refuse to consent for the LEA and/or COE to access California Medi-Cal to pay for health-related special education and/or related services, the LEA and/or COE is still responsible to ensure that all required special education and related services are provided at no cost to you. As a parent, you need to know that:
You may refuse to sign consent.
•
• Information about your family and child is strictly confidential.
• Your rights are protected under Title 34 of the Code of Federal Regulations 300.154 ; Family Education Rights Privacy Act of 1974 (FERPA); Title 20 of the United States Code Section 1232(g) ; and Title 34 of the Code of Federal Regulations Section 99 . • Your consent is good for one year unless you withdraw your consent before that time. Your consent can be renewed annually at the IEP team meeting.
BP 1001 – Procedural Safeguards
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Desert Mountain Special Education Local Plan Area (DMSELPA) (rev. 03/13)
Appendix A: SELPA Form DM 77
Notice of Procedural Safeguards (Parents’ Rights)
Furthermore, as a public agency, the LEA may access your public benefits or insurance to pay for related services required under Part B of the IDEA for a free appropriate public education. For related services required to provide FAPE to an eligible student, the LEA: • May not require you to sign up for or enroll in public benefits or insurance programs (Medi-Cal) in order for your child to receive FAPE under Part B of the IDEA (34 CFR 300.154(d)(2)(i)) . • May not require you to incur an out-of-pocket expense such as the payment of a deductible or co-pay amount incurred in filing a claim for services and reimbursement through Medi- Cal (34 CFR 300.154(d)(2)(ii)) . • May not use your child’s benefits under Medi -Cal if that use would: ❖ Decrease available lifetime coverage or any other insured benefit; ❖ Result in the family paying for services that would otherwise be covered by the public benefits or insurance program (Medi-Cal) and are required for your child outside of the time your child is in school; ❖ Increase premiums or lead to the discontinuation of public benefits or insurance (Medi-Cal); and/or ❖ Risk loss of eligibility for home and community-based waivers, based on aggregate health related expenditures. Parental Revocation of Consent after Consenting to Initial Provision of Services: You may only revoke your consent in writing and this action cannot be retroactive. Once you revoke consent to the initial provision of services, the LEA will provide prior written notice before ceasing the services. If in the future you seek re-enrollment in special education for your child, the assessment will be treated as an initial evaluation. The LEA may not use the procedures in subpart E of Part 300, 34 C FR (including the mediation procedures under 34 CFR 300.506 or the due process procedures under 34 CFR 300.507 through 300.516 ) to obtain agreement or a ruling that the services may be provided to your child. The LEA will not be in violation of the requirement to make a free appropriate public education available to your child because of the failure to provide the child with further special education and related services. The LEA is not required to convene an IEP team meeting or develop an IEP under 34 CFR 300.320 and 300.324 for your child for further provision of special education and related services. In accordance with 34 CFR 300.9(c)(3) , if you revoke consent in writing for your child’s receipt of special educ ation services after your child is initially provided special education and related services, the LEA is not required to amend your child’s education records to remove any references to your child’s receipt of special education and related services because of the revocation of consent.
Child Participation/Right:
BP 1001 – Procedural Safeguards
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Desert Mountain Special Education Local Plan Area (DMSELPA) (rev. 03/13)
Appendix A: SELPA Form DM 77
Notice of Procedural Safeguards (Parents’ Rights)
As part of the participation of an individual with exceptional needs in the development of an individualized education program, as required by Federal law, your child has the right to meet with his/her IEP team at any time, to provide confidential input to any representative of his/her IEP team (EC 56341.5(d)) . Age of Majority: When your child reaches the age of 18, all rights under Part B of the IDEA will transfer to your child. The only exception will be if your child is determined to be incompetent under State law. Nondiscriminatory Evaluations: You have the right to have your child assessed in all areas of suspected disability. Evaluations are conducted prior to an initial placement, triennially, but not more frequently than once per year unless the parent and the school agree otherwise. Materials and procedures used for evaluations and placement must not be racially, culturally, or sexually discriminatory. Tests must be administered in your child's native language or mode of communication and in the form, most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally, unless it is clearly not feasible to do so. No single procedure can be the sole criteria for determining an appropriate educational program for your child. Access to Educational Records and Other Rights Related to Records: You have a right to inspect and review all of your child's education records without unnecessary delay before any meeting about your child's IEP or before any due process hearing. The LEA must provide you access to records and copies if requested, within five days after the request has been made orally or in writing ( Education Code sections 49060, 56043(n), 56501(b)(3), and 56504) . Independent Educational Evaluation: If you disagree with the results of the evaluation conducted by the LEA, you have the right to ask for and obtain an independent educational evaluation (IEE) for your child from a person qualified to conduct the evaluation at public expense. You are entitled to only one independent educational evaluation at public expense each time the LEA conducts an evaluation with which you disagree. The LEA must respond to your request for an independent educational evaluation and provide you information upon request about where to obtain an independent educational evaluation. If the LEA disagrees that an independent evaluation is necessary, the LEA must request a due process hearing to prove that its evaluation was appropriate. If the LEA prevails, you still have the right to an independent evaluation but not at public expense. The IEP team must consider the results and recommendations of independent evaluations. LEA evaluation procedures allow in- class observation of students. If the LEA observes your child in his or her classroom during an evaluation or if the LEA would have been allowed to observe your child, an individual conducting an independent educational evaluation must also be allowed to
BP 1001 – Procedural Safeguards
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Desert Mountain Special Education Local Plan Area (DMSELPA) (rev. 03/13)
Appendix A: SELPA Form DM 77
Notice of Procedural Safeguards (Parents’ Rights)
observe your child in the classroom. If the LEA proposes a new school setting for your child and an independent educational evaluation is being conducted, the independent evaluator must be allowed to first observe the proposed new setting (Title 34 of the Code of Federal Regulations section 300.502; Education Code section 56329(b) and (c)) . Local Mediation/Alternative Dispute Resolution: LEAs have the opportunity to resolve parent concerns and complaints at the local level through individual Uniform Complaint Process/Procedures which are described in the LEA’s board policy or charter petition. Alternate Dispute Resolution (ADR) is another voluntary method of resolving a dispute at the local level and is requested by the parent or LEA. It provides the opportunity for both the parent and LEA to meet at a convenient location and time to resolve concerns. It is facilitated by a trained ADR Coordinator. A request to schedule an ADR session is made to the Desert Mountain Special Education Local Plan Area (DMSELPA), office of the Program Manager for Due Process. A request for Mediation Only is made by the parent or LEA to the Office of Administrative Hearings (OAH) before a due process complaint is filed. Mediation Only is a voluntary process and all discussion during a mediation session is confidential. Attorneys or advocates are not in attendance during a Mediation Only session. An Administrative Law Judge (ALJ) from OAH is assigned to facilitate this confidential process. The Uniform Complaint Process, ADR, and Mediation Only are voluntary methods of resolving a dispute and may not delay a parent’s right to a due process hearing. All three methods are less adversarial and allow all parties to resolve the concerns in a timely manner. The mandatory early resolution session (ERS) and mediation are the first two steps in the three-step process initiated when a parent files a due process complaint with OAH. Attorneys and advocates are invited to attend both the ERS and Mediation session when a due process complaint has been filed. Due Process Hearing: You have the right to request an impartial due process hearing regarding the identification, evaluation, educational placement, or the provision of a free appropriate public education for your child. The request for a due process hearing must be filed within two years from the date you knew or had reason to know of the facts that are the basis for the hearing request (Title 34 of the Code of Federal Regulations section 300.507 ; Education Code sections 56501 and 56505(l)) . There is an exception to this timeline if you were prevented from requesting a hearing earlier because the LEA misrepresented that it had resolved the problem or withheld information that should have been provided to you. Requests for a hearing are to be sent to the Special Education Headquarters, Office of Administrative Hearings, 2349 Gateway Drive, Suite 200, Sacramento, CA 95833- 4231. Requests must include the student’s name; residential address; the name of the student’s school; in the case of a homeless child, available contact information and the name of the school the child is attending; and a description of the problem, facts about the problem, and a proposed resolution. A due process hearing may not take place until
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Desert Mountain Special Education Local Plan Area (DMSELPA) (rev. 03/13)
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