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School Age
SECTION I: PRIOR WRITTEN NOTICE
When prior written notice must be
provided:
A school district/public agency must
provide parents with prior written notice each time it proposes or refuses to
initiate or change the identification, evaluation, or educational placement of
a child or the provision of a free appropriate public education (FAPE) to a
child.
For example, prior written notice must
be provided:
1. The first time a school
district/public agency proposes or refuses to conduct an initial
multidisciplinary evaluation ;
2. Each time a school
district/public agency proposes or refuses to conduct a reevaluation;
3. If the school
district/public agency refuses to provide an independent educational evaluation
at public expense;
4. If the school
district/public agency proposes or refuses to change a child's educational
placement, including any disciplinary exclusion which would constitute a change
in educational placement;
5. If the school
district/public agency proposes or refuses to make any significant change in a
child's Individualized Education Program (IEP) and the provision of an
appropriate program to a child.
What prior written notice must contain:
Prior written notices must be written
in language understandable to the general public and, if appropriate, in the
native language or other mode of communication of the parents. If necessary, the content of such notices
must be communicated orally in the native language or directly so that the
parents understand the content of the notices.
Prior written notice must contain:
1. A description of the action
proposed or refused by the school district, an explanation of why the school
district proposes or refuses to take the action, and a description of any
options the school district/public agency considered and the reasons why those
options were rejected;
2. A description of each
evaluation procedure, test, record, or report the school district/public agency
used as a basis for the proposal or refusal;
3. A description of any other
factors which are relevant to the school district/ public agency proposal or
refusal;
4. A full explanation of the
procedural safeguards available to the parent;
5. A statement that the
parents of a child with a disability have protection under procedural
safeguards and, if the notice is not an initial referral for evaluation, the
means by which a copy of a description of the procedural safeguards can be
obtained;
6. Sources parents may contact
to obtain assistance in understanding these provisions;
7. A statement informing
parents about the State complaint procedures, including a description of how to
file a complaint and the timelines under those procedures.
SECTION II:
PROCEDURAL SAFEGUARDS NOTICE
When a procedural safeguards notice must be provided:
(1) Upon
initial referral for evaluation;
(2) Upon each
notification of an IEP meeting;
(3) Upon
reevaluation of the child; and
(4) Upon
receipt of a request for due process under Impartial Due Process Hearings.
2.
Upon the parent registering a due
process complaint with respect to any matter relating to the identification,
evaluation, educational placement, or the provision of a free appropriate
public education to a child.
What a procedural safeguards notice must contain:
The procedural safeguards notice must
include a full explanation of available procedural safeguards, written in the
native language of the parents, unless it clearly is not feasible to do
so. It must be written in an easily
understandable manner, describing the procedural safeguards available relating
to:
1. Independent educational evaluation;
2. Prior written notice;
3. Parental consent;
4. Access
to educational records;
5. Opportunity to present complaints;
6. The child's placement while due process
proceedings are pending;
7. Procedures for students who are subject to
placement in an interim alternative educational setting;
8. Requirements for unilateral placement by
parents of children in private schools at public expense;
9. Mediation;
10. Due
process hearings, including requirements for disclosure of evaluation results
and recommendations;
11. State-level appeals (if applicable in that
State);
12. Civil actions;
13. Attorneys’
fees; and
14. State complaint
procedure
SECTION III: WHEN MUST PRIOR PARENTAL CONSENT BE OBTAINED
Parental consent must be obtained by
the school district/public agency prior to:
1. Conducting an initial
multidisciplinary evaluation of a student;
2. Conducting a re-evaluation of
a student, except that such consent need not be obtained if the school
district/public agency can demonstrate that it has taken reasonable measures to
obtain this consent and the parent has failed to respond;
3.
An initial placement in
special education.
SECTION IV: PARENTAL REFUSAL TO GIVE CONSENT
If a parent refuses to give
consent as described above, the school district/public agency may continue to
pursue the evaluation and/or placement through mediation or a due process
hearing if the school district/public agency believes that such an action is
necessary for the student to receive an appropriate educational program.
SECTION V: INDEPENDENT EDUCATIONAL EVALUATION
Parents
have the right to obtain an independent educational evaluation of their
child. An independent evaluation is an
evaluation by a qualified professional who is not an employee of the school
district/public agency responsible for the child. The parents may request an independent educational evaluation at
the school district's/ public agency expense if they disagree with an educational
evaluation completed by the school district.
The school district/public agency must respond to the request within a
reasonable time. However, the school
district/public agency may initiate a due process hearing to show that its
evaluation is appropriate. If the
hearing officer decides that the evaluation is appropriate, the school
district/public agency will not have to pay for the independent evaluation.
Parents may, of course, get an independent educational evaluation at their own
expense. If a parent requests an
independent educational evaluation, the school district/public agency may ask
for the parent's reason why he or she objects to the public evaluation.
However, the explanation by the parent may not be required and the public
agency may not unreasonably delay either providing the independent educational
evaluation at public expense or initiating a due process hearing to defend the
public evaluation.
If parents obtain an independent
educational evaluation at their expense, the results of the evaluation must be
considered by the school district/public agency in any decision made with
respect to the provision of a free appropriate public education to the child,
and may be presented as evidence at a due-process hearing regarding the child.
If a hearing officer requests an
independent educational evaluation as part of a hearing, the cost of the
evaluation must be at public expense.
The school district/public agency will
provide, on request, information about where an independent educational evaluation
may be obtained.
Whenever an independent
evaluation is conducted at public expense, the criteria under which the
evaluation is obtained, including the location of the evaluation and the
qualifications of the examiner, must be the same as the criteria which the
school district/public agency uses when it initiates an evaluation, to the
extent those criteria are consistent with the parent’s right to an independent
educational evaluation.
SECTION VI: DISPUTE RESOLUTION SYSTEMS
When disputes arise, parents have the
following formal systems available to them for dispute resolution.
1. MEDIATION
Mediation
is a voluntary process in which parents and school districts/ public agency
involved in a dispute regarding special education agree to obtain the
assistance of a qualified impartial mediator.
Mediation must be available, at a minimum, whenever a due process
hearing is requested. This system can
be accessed regardless of whether an impartial due process hearing has been
requested. Essential requirements for mediation are described below. The Pennsylvania Department of Education's
Bureau of Special Education maintains a list of individuals who are qualified
mediators and knowledgeable in laws and regulations relating to the provision
of special education and related services. Parents can receive information
regarding Pennsylvania's mediation services by contacting the number listed in
the "Resources for Parents".
Mediation services are provided at no cost to the
parent,
including the costs of meetings with disinterested parties if the parties are
required to obtain these services.
• Each session
in the mediation process shall be scheduled in a timely manner and held in a
location that is convenient to the parties.
• Discussions
occurring during the mediation session shall be confidential, and no part of
the mediation conference shall be recorded Discussions occurring during
mediation may not be used in any due process hearings or civil hearings that
may occur at a later date.
• Parties
involved in the mediation may be required to sign a confidentiality pledge
prior to the start of the mediation process.
• The mediator
may not be called as a witness in future proceedings.
• An agreement
reached by the parties to the dispute in the mediation process shall be set
forth in a written mediation agreement.
• When the
mediation conference results in a resolution of the dispute, each party shall
receive an executed copy of the agreement at the conclusion of the mediation
conference.
• Mediation
may not be used to deny or delay a party's right to an impartial due-process
hearing. The parents or the school
district/public agency may immediately proceed to an impartial due process
hearing.
• An
individual who serves as a mediator may not be an employee of any LEA or any
state agency, an SEA who is providing direct services to the child, and must
not have a personal conflict of interest.
• The
Mediation Agreement shall be enforceable by the Department of Education.
2. PRE-HEARING
CONFERENCES AND IMPARTIAL DUE PROCESS HEARINGS
PRE-HEARING
CONFERENCES: Although not a federal requirement, Pennsylvania state
laws regarding special education allow parents to request a Pre-Hearing
Conference before a formal due process request. The Pre-Hearing Conference is intended as an opportunity for the
parent and school district/public agency to try to resolve disagreements about
a student's identification, evaluation, program, and/or educational
placement. It also gives the parties an
opportunity to understand the reason for the other's position. In many cases, disputes are resolved by this
process. Because a Pre-Hearing
Conference is optional, a parent or school district/public agency may waive the
right to a Pre-Hearing Conference and proceed to an Impartial Due Process
Hearing. If a Pre-Hearing Conference is
held, the following general requirements apply.
• The
Pre-Hearing Conference will be scheduled within 10 days from the date the
school district/public agency receives a parent's request.
• The
pre-hearing conference will be chaired by the superintendent, early
intervention representatives, or their designees.
• If an
agreement is reached, the agreement will be implemented. If agreement is not reached, an impartial
due process hearing will be arranged if requested.
IMPARTIAL
DUE PROCESS HEARINGS
• A parent or
school district/public agency may initiate a hearing regarding the school
district’s/ public agency proposal or refusal to initiate or change the
identification, evaluation, or educational placement of the student or the
provision of a FAPE.
• Parents
requesting a due process hearing must notify the school district/public agency,
in writing, of the nature of the problem with the school district's/ public
agency proposed or refused initiation or change of a child’s educational
placement, evaluation, or identification or the provision of FAPE, and any
proposed resolution of the problem to the extent known and available. This notice is mandatory and the failure to
provide it to the school district/public agency can diminish or extinguish a
claim for attorney's fees and costs if the parents are represented by Legal
Counsel.
• The hearing
will be conducted by the school district responsible for the student's
education.
• The school
district/public agency must inform the parents of any free or low cost legal
and other pertinent services available in the area if the parents request the
information, or if the agency or parent initiates a due process hearing.
• A hearing
may not be conducted by a person who is an employee of a public agency which is
involved in the education or care of the student, or by any person having a
personal or professional interest which would conflict with his or her
objectivity in the hearing. (A person
who otherwise qualifies to conduct a hearing is not an employee of the agency
solely because he or she is paid by the agency to serve as a hearing officer.)
• Each school
district/public agency shall keep a list of the persons who serve as hearing
officers. The list must include a
statement of the qualifications of each of those persons. School districts/ public agency shall
provide parents with information as to the availability of the lists and shall
make copies of the list upon request.
• A hearing
shall be held within 30 days after a parent or school district’s initial
request for a hearing.
• The school
district/public agency shall ensure that a final hearing decision is reached
and mailed to the parties within 45 days after the receipt of a request for a
hearing, unless the hearing officer grants a specific extension at the request
of either party.
• The decision
of the hearing officer shall include findings of fact, discussion and
conclusion of law. Although technical rules of evidence shall not be followed,
the decision shall be based solely upon the substantial evidence presented at
the hearing.
• The decision
made in a due-process hearing is final, unless a party to the hearing appeals
the decision under the procedures for impartial administrative appeal described
below.
DISCLOSURE
OF EVALUATIONS AND RECOMMENDATIONS
At least five business
days prior to a hearing, each party must disclose to all other parties, all
evaluations completed by that date and recommendations based on the offering
party's evaluations that the party intends to use at the hearing.
If
the evaluation or recommendations are not provided to the other party within
five business days, a hearing officer may prohibit the information to be
introduced without the consent of the other party.
DUE
PROCESS HEARING RIGHTS
Any party to a hearing has the right to:
1. Be represented by legal counsel and
accompanied and advised by individuals with special knowledge or training with
respect to the problems of children with disabilities;
2. Present evidence and confront,
cross-examine, and compel the attendance of witnesses;
3. Prohibit the introduction of any evidence
at the hearing that has not been disclosed to that party at least five business
days before the hearing;
4. Obtain a written or, at the option of the
parents, electronic, verbatim record of the hearing at no cost to parents;
5. Obtain written, or at the option of the
parents, electronic, findings of fact and decisions at no cost to parents.
8. Each hearing must be conducted at a time
and place that is reasonably convenient to the parents and child.
9.
With regard to a disciplinary removal,
an expedited hearing may be requested:
(a) Whenever a parent requests a hearing to dispute a district’s
determination that a child’s behavior was not a manifestation of the child’s
disability;
(b) Whenever a parent requests a hearing to dispute a disciplinary
exclusion that constitutes a change in educational placement;
(c) Whenever a parent requests a hearing to dispute a 45-day interim
alternative educational setting ordered by school personnel; and,
(d) Whenever a school district requests an expedited hearing to
maintain that it is dangerous for a child to remain in the current placement;
(e) If an expedited hearing is conducted, the hearing officer’s
decision shall be mailed within 45 days of the public agency’s receipt of the
request for the hearing without exceptions or extensions.
ADMINISTRATIVE
APPEAL – IMPARTIAL REVIEW
Any party
aggrieved by the findings and decision in the hearing may appeal to a
three-person panel appointed by the Pennsylvania Department of Education. If there is an appeal, the Appellate Panel
Officers will do the following:
1. Examine the entire hearing record.
2. Ensure that the procedures at the hearing
were consistent with the requirements of due process.
3. Seek additional evidence if necessary. If a hearing is held to receive additional
evidence, the hearing rights described above apply.
4. Afford the parties an opportunity for oral
or written argument, or both, at the discretion of the reviewing official(s).
5. Make an independent decision on completion
of the review.
6. Provide the
parents a written or, at their option, an electronic copy of the findings of
fact and decision.
Each review
involving oral arguments must be conducted at a time and place that is
reasonably convenient to the parents and child.
The State
Educational Agency shall insure that a final decision is reached in an
administrative review and mailed to the parties within 30 days after the
receipt of a request for a review, unless the reviewing official grants a
specific extension at the request of either party. The decision made by the reviewing official is final, unless a
party brings a civil action under the procedures described below.
CIVIL
ACTION
Any party aggrieved by the findings and decision made
in an administrative review has the right to bring a civil action in State or
Federal Court. The action may be brought in any State court of competent
jurisdiction or in a district court of the United States without regard to the
amount in controversy.
CHILD'S
STATUS DURING PROCEEDINGS
During the pendency of any administrative or judicial
proceeding regarding a due process complaint, unless the parents
and school district/public agency agree otherwise, the student must remain in
his or her present educational placement.
If the decision of an Appellate Hearing Officer agrees with the child's
parents that a change of placement is appropriate, that placement must be
treated as an agreement between the school district/public agency and the
parents.
If the
hearing involves an application for initial admission to public school, the
child, with parental consent, must be placed in the public school program until
completion of all the proceedings whichever occurs first, unless the parent and
the school district/public agency agree otherwise.
If a parent
requests a hearing or an appeal regarding a disciplinary action (weapons,
illegal drugs) to challenge the interim alternative educational setting or the
manifestation determination the child must remain in the interim alternative
educational setting pending the decision of the hearing officer or until the
expiration of not more than 45 days,
AWARD
OF ATTORNEY'S FEES
In any
action or proceeding brought under Part B of the Individuals with Disabilities
Education Act, the court may award reasonable attorneys' fees to the parents or
guardians of a child or youth with disabilities who is the prevailing party.
PROHIBITION
OF ATTORNEY'S FEES
The federal
laws and regulations impose certain requirements upon parents and in some
circumstances may limit attorney fee awards. Parents should consult with their legal counsel regarding these
matters. The following are the federal
regulations regarding this issue:
Prior to a due
process hearing, parents must provide written notice to the school district
regarding their problem with the school district's proposed or refused
initiation or change of a child’s educational placement, evaluation,
identification or the provision of FAPE.
In this notice,
parents must also state facts relating to such problem and a proposed
resolution of the problem to the extent known and available to the parents at
the time. This notice is mandatory, and
failure to provide it to the school can diminish or extinguish a claim for
attorney's fees and costs if the parents are represented by Legal Counsel.
.
Attorneys' fees may not be awarded and related costs may not be
reimbursed in any action or proceeding for services performed subsequent to the
time of a written offer of settlement to a parent if:
(A) The offer is made within the time
prescribed by Rule 68 of the Federal Rules of Civil Procedure or, in the case
of an administrative proceeding, at any time more than 10 days before the
proceeding begins;
(B) The offer is not accepted within 10
days; and
(C) The court or Administrative Hearing
Officer finds that the relief finally obtained by the parents is not more
favorable to the parents than the offer of settlement.
Attorneys' fees may not be awarded relating to any
meeting of the IEP team unless the meeting is convened as a result of an
administrative proceeding or judicial action, or at the discretion of the
State, for a mediation described in Sec. 300.506 that is conducted prior to the
filing of a request for due process under Sections: 300.507 or 300.520-300.528.
An award of attorneys' fees and related costs may be
made to a parent who is the prevailing party and who was substantially
justified in rejecting the settlement offer.
The court reduces, accordingly, the amount of the
attorneys' fees if the court finds that--
(1) The parent, during the course of the action or proceeding,
unreasonably protracted the final resolution or the controversy;
(2) The amount of the attorneys' fees otherwise authorized to be awarded
unreasonably exceeds the hourly rate prevailing in the community for similar
services by attorneys of reasonably comparable skill, reputation, and
experience;
(3) The time spent and legal services furnished were excessive
considering the nature of the action or proceeding; or
(4) The attorney representing the parent did not provide to the school
district the appropriate information in the due process complaint.
These reductions do not apply in any action or
proceeding if the court finds that the State or local agency unreasonably
protracted the final resolution of the action or proceeding.
SECTION VII: PARENTAL CLAIMS FOR
TUITION REIMBURSEMENT
If
the parents of a child with a disability, who previously received special
education and related services under the authority of a school district/public
agency, enroll the child in a private preschool, elementary, or secondary
school without the consent of or referral by the school district/public agency,
a court or a hearing officer may require the agency to reimburse the parents
for the cost of that enrollment if the court or hearing officer finds that the
school district/public agency had not made FAPE available to the child in a
timely manner prior to that enrollment and that the private placement is
appropriate. A parental placement may be found to be appropriate by a hearing
officer or a court even if it does not meet the State standards that apply to
education provided by the SEA and LEAs.
Parental claims for tuition
reimbursement can be reduced or denied entirely:
1. If a parent does not advise
the school district/public agency at the last IEP team meeting prior to
withdrawal of their child from school or at least ten business days prior to
withdrawal of their child from school
a. That they are rejecting the school
district/ public agency program and placement offer;
b. Their concerns with that offer; and
c. Their intent to enroll the child in a
private school at public expense.
OR
2. If prior to withdrawal, the
school district/public agency notifies the parents of its intent to evaluate
with its reasons therefore, and the parents refuse to make their child
available for such evaluation.
OR
3.
If the court finds the
parents acted unreasonably.
The cost of reimbursement may not be reduced or denied
for failure to provide the notice if:
·
The parent is illiterate
and cannot write in English;
·
Complying with items 1-3
above would likely result in physical or serious emotional harm to the child;
·
The school/ public
agency prevented the parent from providing the notice; or
·
The parents had not
received notice of the notice requirement.
SECTION VIII:
RIGHTS REGARDING DISCIPLINE AND SUSPENSION
There are
special rules in Pennsylvania for excluding children with disabilities for
disciplinary reasons. When a student is excluded from school for more than 10
school days in a row or 15 total school days in any one school year, this will
be considered a pattern, deemed a change in placement, and requires a prior
written notice. The exclusion of a
child with mental retardation for any amount of time is considered a change in
placement and requires prior written notice.
If parents do not agree with the change in placement on the NORA, the
child remains in the existing placement until due process is completed, unless
school officials take further action and go to court.
Changes in
the new Individuals with Disabilities Education Act allow school officials to
change a child’s placement for up to 45 calendar days to an interim alternative
placement without parental permission in school situations involving possession
of a weapon, possession, or use of illegal drugs or the sale of a controlled
substance. In the new 45-day
educational placement, the child must be able to receive the services in the
IEP and continue to participate in the general curriculum. The new placement must also offer services
to deal with the child’s problem behavior so it does not occur again.
When a
child’s placement is changed for disciplinary reasons, the IEP team (including
the parents) must meet to review the IEP to decide if it is appropriate and if
it contains an appropriate plan, which addresses the child’s problem
behaviors. If no plan is included in
the IEP, a functional behavioral assessment must be done and a behavior plan
developed. A functional behavioral
assessment takes a look at the child’s behavior in the setting where the
problems are occurring and analyzes what is happening to trigger and reinforce
the inappropriate behaviors. It then outlines steps to reduce problem behaviors
and replace them with appropriate ones.
If a plan already exists, it must be reviewed and, if necessary,
changed.
In addition, a “manifestation determination”
must be conducted by the IEP team to decide if the child’s behavior was caused
by the child’s disability or is a “manifestation” of the disability. In order to determine that a behavior was
not a manifestation of the disability, the team must decide that the current
IEP and placement are appropriate and have been put into place; that the child
was able to understand the consequences of the behavior; and that the child
could have controlled the behavior.
Children with disabilities cannot be punished for behaviors that are
related to, or are manifestations of, their disabilities.
If the IEP
team decides that the child’s behavior was not related to the disability, the
child’s placement may be changed for disciplinary reasons. Parents have the right to ask for a due
process hearing to challenge this decision.
During the hearing, and any appeals, the child stays in the current
placement unless the incident involved drugs or weapons, in which case the
child stays in the interim alternative placement for up to 45 calendar days or
to the end of due process, whichever occurs first. School officials and parents may ask for an expedited hearing on
a due process hearing if they believe that the child is a danger to self or
others in the current placement.
Anytime a
child is given a disciplinary change in placement, or anytime a placement is
changed for possession of weapons or drugs, school officials must still provide
a free appropriate public education (including all services necessary to enable
the child to appropriately progress in the general curriculum and appropriately
advance toward achieving the goals identified on the child’s IEP).
The law now
contains certain protections for not yet eligible children who face
disciplinary procedures. If school
officials “knew or should have known” that a child was disabled, because of
written requests from the parents for an evaluation; because teachers or other
school personnel have expressed concerns about the behavior or performance of
the child; or because the child’s performance or behavior “demonstrates” a need
for special services, the child is entitled to the protections given to
children who already have been identified as eligible.
Nothing in special education law is to
be construed to prohibit a school district/public agency from reporting a crime
committed by an eligible student to appropriate authorities or to prevent State
law enforcement and judicial authorities from exercising their responsibilities
with regard to the application of Federal and State law to crimes committed by
an eligible student. A school
district/public agency reporting a crime committed by an eligible student shall
ensure that copies of the special education and disciplinary records of the
student are transmitted for consideration by the appropriate authorities to
whom it reports the crime. A school
district/public agency reporting a crime may transmit copies of the child's
special education and disciplinary records, only to the extent that the
transmission is permitted by the Family Education Rights and Privacy Act. (See Section X: Rights Pertaining To Education Records).
SECTION IX: SURROGATE PARENTS
Each school district/public agency
shall ensure that an individual is assigned to act as a surrogate of a student
when no parent or person acting as a parent can be identified or the public
agency, after reasonable efforts, cannot locate parents. The school district/agency must have a
method for determining whether or not a student needs a surrogate parent, and
for assigning a surrogate parent to the student.
The school district/public agency may
select a surrogate parent in any way permitted under State law, but must ensure
that a person selected as a surrogate is not an employee of a school
district/public agency which is involved in the education or care of the
student, has no interest that conflicts with the interest of the student he or
she represents, and has knowledge and skills that ensure adequate
representation of the student. (An
individual is not disqualified as an agency employee from appointment as a
surrogate parent solely because he or she is paid by the agency to serve as a
surrogate parent. Determinations are
made on an individual case-by-case basis).
The surrogate parent may represent the
student in all matters relating to the identification, evaluation, and
educational placement of the student, and the provision of a free appropriate public
education to the student.
SECTION X: RIGHTS PERTAINING TO EDUCATION RECORDS
The school district/public agency must
permit parents to inspect and review all education records relating to their
child with respect to the identification, evaluation, and educational placement
of the child, and the provision of a free appropriate public education to the
child, which are collected, maintained, or used by the school district/public
agency. The school district/public
agency must comply with a request without unnecessary delay and before any
meeting regarding an individualized education program or hearing relating to
the identification, evaluation, or placement of the child, and in no case more
than 45 days after the request has been made.
The parents right to inspect and review
education records under this section includes:
1. The right to a response
from the participating agency to a reasonable request for explanations and
interpretations of the records;
2. The right to have a
representative inspect and review the records; and
3. The right to request that
the school district/agency provide copies of the records containing the
information if failure to provide those copies would effectively prevent the
parents from exercising their rights to inspect and review the records.
The school district/public agency may
presume that the parents have authority to inspect and review records relating
to their child unless the agency has been advised that the parent does not have
the authority under applicable State law governing such matters as
guardianship, separation, and divorce.
If any education record includes
information on more than one child, the parents have the right to inspect and
review only the information relating to their child or to be informed of that
specific information.
The school district/public agency must
provide parents, on request, a list of the types and locations of education
records collected, maintained, or used by the agency.