PROCEDURAL SAFEGUARDS NOTICE PARENTAL RIGHTS FOR PRIVATE SCHOOL SPECIAL EDUCATION STUDENTS INTRODUCTION This ntice prvides an verview f the parental special educatin rights, smetimes called prcedural safeguards that are prvided t the parents f students wh have been vluntarily enrlled in private schls. These same prcedural safeguards are applicable fr students with disabilities wh have reached the age f 18. CHILD FIND IDEA requires that all children with disabilities, including thse students vluntarily enrlled in and attending a private schls are identified, lcated and evaluated fr special educatin and related services. INDIVIDUAL SERVICE PLAN When a private schl student is identified as a child with a disability eligible t receive IDEA services, the district must develp and implement an Independent Services Plan ( ISP ). The ISP generally serves the same functins as a public schl student s IEP, but is subject t less prcedural safeguards than an IEP. On a frm that is very similar t the schl district s frm fr IEPs, a services plan describes the special educatin and/r related services that a parentally placed child with a disability will receive frm the schl district. The services must be prvided by persnnel meeting the same standards as persnnel prviding services in the public schl. The services plan describes the specific special educatin and/r related services t be prvided t the child in light f the services the schl district has determined will be available t private schl children with disabilities. T the extent apprpriate, the services plan includes IEP elements at sectin 34 C.F.R. 300.347. The elements in each child s services plan may vary depending n the services t be prvided. Mst services plans will include the fllwing: the child s present level f educatinal perfrmance; annual gals, including benchmarks r shrt-term bjectives; a statement f the special educatin, related services, r supplementary aids and services; a statement f the prgram mdificatins r supprts; an explanatin f the extent, if any, t which the child will nt participate with nndisabled children in the regular educatin envirnment; the prjected date fr beginning the services and mdificatins, and the amunt, anticipated frequency, lcatin and duratin f the services and mdificatins; and a statement f hw the child s prgress tward the annual gals will be measured and hw the parents will be regularly infrmed f their child s prgress and the 1
extent t which the prgress is sufficient t enable the child t achieve the gals by the end f the year. Other IEP elements at 34 C.F.R. 300.347 may be included, depending n the services the schl district will prvide t the child (e.g., transitin services). PRIOR WRITTEN NOTICE When a district prpses t initiate r change, r refuses t initiate r change, the identificatin, placement r evaluatin f a student, the district must serve a prir written ntice n the parent. The district must serve this ntice n the parent within a reasnable time, and in n case less than 14 calendar days befre the prpsed effective date f the change r evaluatin. If the ntice nly includes a refusal f a request, the ntice must be served n the parent within 14 calendar days f the date the request was made. The prir written ntice must include the fllwing statements: 1. A descriptin f what the district prpses t d r refuses t d; 2. An explanatin f why the district prpses r refuses t take the actin; 3. A descriptin f any ther ptins the district cnsidered and the reasns why thse ptins were rejected; 4. A descriptin f each evaluatin prcedure, assessment, recrd, r reprt the district used as a basis fr its prpsal r refusal; 5. A descriptin f any ther factrs affecting and relevant t the district s prpsal r refusal; 6. A statement that yu are prtected by prcedural safeguards; 7. If the prir written ntice was given fr any reasn except an initial referral fr evaluatin, then the prir written ntice must include: a. a descriptin f the prcedural safeguards, and b. a statement that the district will prceed with its prpsal unless yu bject in writing within 14 calendar days after yu receive the ntice; and 8. Surces yu may cntact fr help in understanding these prcedural safeguards. If the prir written ntice was prvided due t a student s initial placement and prvisin f services, the prir written ntice must als include the fllwing statements: 1. The district will nt prceed with the initial placement withut yur cnsent; and 2. Yu may request a cnciliatin cnference if: a. yu refuse t prvide cnsent fr an initial evaluatin; b. refuse t prvide cnsent fr an initial placement; c. bject in writing t any prpsal; r d. the district refuses yur request regarding identificatin and evaluatin. PARENTAL CONSENT 2
1. The district must btain yur cnsent befre cnducting an initial evaluatin f the student. Yur cnsent fr an initial evaluatin des nt authrize the district t begin prviding the student with special educatin and related services. 2. Giving yur infrmed cnsent means that yu have been fully infrmed f the infrmatin relevant t the activity fr which yur written cnsent is sught. Yur cnsent is vluntary and may be revked in writing at any time. Hwever, the revcatin f yur cnsent des nt negate any actin that has ccurred after yur cnsent was given but befre yur cnsent was revked. 3. Yur cnsent is required befre the district begins t prvide special educatin and related services t the student. If yu refuse t cnsent t the initial prvisin f services t the student, the district may nt verride yur refusal, and the district will nt be cnsidered in vilatin f the law fr a failure t prvide the student with special educatin and related services fr which the district requested yur cnsent. 4. Yur cnsent is required befre a district cnducts a reevaluatin f the student. The reevaluatin may ccur withut yur cnsent if the district has taken reasnable steps t get yur cnsent and yu have failed t respnd. 5. Yu have a right t bject in writing t any actin the district prpses. Hwever, the manner in which a private schl parent challenges a district s decisin r prpsal varies accrding t the nature f the decisin r prpsal. 6. Generally, yur cnsent is required befre a district may disclse persnally identifiably infrmatin regarding the student r the student s educatinal recrds, but this infrmatin may be disclsed t individuals within the district wh have a legitimate educatinal interest in the infrmatin r are prviding services t the student under the IDEA. This infrmatin may als be disclsed in accrdance with the Family Educatinal Rights and Privacy Act ( FERPA ), the Minnesta Gvernment Data Practices Act, the Individuals with Disabilities Educatin Act ( IDEA ), r ther law. ACCESS TO STUDENT S EDUCATION RECORDS If yu want t review the student s educatin recrds, the district must give yu access t the recrds. The district must allw yu t review the recrds withut unnecessary delay, and befre any meeting regarding an ISP r any due prcess hearing abut the student. Yur right t inspect and review educatin recrds includes the right t: 1. An explanatin r interpretatin f the student s recrds frm the district upn reasnable request; 2. Have yur representative inspect and review the recrds n yur behalf; and 3. Request the district prvide cpies f the student s educatin recrds t yu. 3
The district may nt charge a fee t search r retrieve the student s educatin recrds. Hwever, if yu request cpies, the district may charge a reasnable fee fr the cpies, unless charging that fee wuld prevent yu frm exercising yur right t inspect and review the educatin recrds. If yu request 100 r fewer cpies f black and white, letter r legal size paper cpies, the district may nt charge mre than $.25 per cpy. The district must keep a recrd f persns accessing the student s special educatin recrds. This recrd must include the persns, except the parents and district emplyees, wh are given access t the student s educatin recrds. This recrd f access must include the name f the persn wh accessed the recrds, the date f access, and the purpse f the persn s access t the student s educatin recrds. Yu may specifically request a cpy f all recrds cncerning IEP health-related services disclsed by the district t a third party. INDEPENDENT EDUCATIONAL EVALUATIONS An independent educatinal evaluatin ( IEE ) is an evaluatin by a qualified persn wh is nt an emplyee f the district. Yu may ask fr an IEE at schl district expense nce the district evaluates the student and yu disagree with the district s evaluatin. A hearing fficer may als rder an independent evaluatin f the student at schl district expense during the pendency f a due prcess hearing. Upn yur request fr an IEE, the district must prvide yu with infrmatin abut where an IEE may be btained and the applicable district criteria fr an IEE. When yu request an IEE, the district must, withut delay, ensure that either the IEE is prvided at public expense r request a hearing t determine the apprpriateness f the district s evaluatin. If the district requests a hearing and the hearing fficer determines the district s evaluatin is apprpriate, yu still have the right t an independent evaluatin, but nt at public expense. If yu btain an IEE at yur wn expense, the results f the evaluatin must be cnsidered by the district and may be presented as evidence at a due prcess hearing regarding the student. WRITTEN COMPLAINTS The parent f a vluntarily placed private schl student may file a cmplaint with the Minnesta Department f Educatin ( MDE ) t challenge any aspect f a district s prvisin f special educatin and related services t the private schl student as well as the district s prvisin f a free apprpriate educatin t the student. A cmplaint sent t MDE must: 1. Be in writing and be signed by the individual r rganizatin filing the cmplaint; 2. Allege vilatins f special educatin law r rules that have ccurred within tw years f the date the cmplainant knew r shuld have knwn abut the alleged actin that frms the basis f the cmplaint. 3. State the facts upn which the allegatin is based; and 4. Include the name, address, and telephne number f the cmplainant. The cmplaint must be sent t: 4
Minnesta Department Educatin Divisin f Cmpliance and Assistance Due Prcess Supervisr 1500 West Highway 36 Rseville, MN 55113-4266 (T) 651-582-8689 (F) 651-582-8725 MDE will issue a written decisin within 60 days. The final cmplaint decisin may be appealed t the Minnesta Curt f Appeals within 60 days f the date the decisin is issued. MEDIATION AND IMPARTIAL DUE PROCESS HEARINGS The parents f vluntarily placed private schl students have very limited rights in regards t due prcess hearings and ther dispute reslutin prceedings. A due prcess hearing may nly be requested abut matters relating t child find and their child s evaluatin and eligibility determinatin. Parents may nt request mediatin r a due prcess hearing abut ther matters relating t parentally-placed private schl children, including the prvisin f services in the child s services plan. Due prcess des nt apply because there is n individual right t special educatin services fr a child attending a private schl identificatin and/r evaluatin f a disabled student under IDEA. Impartial due prcess hearings must be requested in writing within tw years f the date yu r the district knew r shuld have knwn abut the alleged actin that frms the basis f the cmplaint. A request fr a hearing must be sent t MDE and t the invlved schl district. The MDE will appint an impartial hearing fficer t cnduct the due prcess hearing. If the MDE is the prvider f services t the student, the MDE will request the Office f Administrative Hearings t appint a qualified hearing fficer. Request fr Due Prcess Hearing The request fr a due prcess hearing must include: 1. The name f the student; 2. The address f the student; 3. The name f the schl the student is attending; 4. A descriptin f the nature f the prblem(s) f the student causing yu t request the hearing, including facts relating t such prblem(s); and 5. A prpsed reslutin f the prblem t the extent knwn t yu. The requesting party may nt have a due prcess hearing until the requesting party submits a request that cmplies with these requirements. 5
Reslutin Sessin When yu request a hearing, the district must arrange fr a reslutin sessin t ccur within 15 days after receiving the hearing request. The reslutin sessin is an pprtunity fr yu t discuss yur cmplaint with the district and gives the district an pprtunity t reslve the cmplaint. The reslutin sessin must include yu and relevant members f the special educatin evaluatin team. If an agreement is reached during the reslutin sessin, yu and the district must execute a legally binding agreement stating the reslutin. Either party may vid the agreement within three business days f signing the agreement. The requirement fr this reslutin sessin may nly be waived if (1) bth yu and the district agree t mediatin; r (2) bth yu and the district agree t waive the reslutin sessin requirement in writing. If yu d nt attend a reslutin meeting r mediatin, yu are nt entitled t a hearing. Disclsure f Additinal Evidence Befre a Hearing At least five business days befre a hearing, yu and the district must disclse t each ther any evidence that yu intend t use at the hearing, including, but nt limited t, all evaluatins f the student cmpleted by that date as well as any recmmendatins based n thse evaluatins. A hearing fficer may refuse t allw yu t intrduce any undisclsed evidence at the hearing unless the ther party cnsents. All evidence must be limited t the specific issues described in the request fr a due prcess hearing. Yur Rights During Hearing Bth yu and the district have the right t: 1. Be accmpanied and advised by an attrney and by individuals with special knwledge r training with respect t the prblems f students with disabilities; 2. Present evidence; 3. Cnfrnt, crss-examine, and cmpel the attendance f witnesses; 4. Prhibit the intrductin f any evidence at the hearing that has nt been disclsed at least five business days befre the hearing, including, but nt limited t, evaluatin data and recmmendatins based n that data; 5. Receive a written cpy f the hearing transcript, r at yur discretin, an electrnic, verbatim recrd f the hearing; and 6. Receive a written cpy f the hearing fficer s findings f fact and decisin, r at yur discretin, an electrnic versin f the findings f fact and decisin. As a parent, yu have the right t: 1. Have the student wh is the subject f the hearing present; 2. Open the hearing t the public; and 3. Ntice f the time, date, and place f the hearing frm the hearing fficer at least ten calendar days in advance f the hearing. 6
Hearing Prcess The hearing must be held at a lcatin within the district in which the student s private schl is lcated. The burden f prf at the hearing is n the party requesting the due prcess hearing. The hearing fficer will make a written decisin based nly n evidence received and intrduced in the recrd at the hearing nt mre than 45 calendar days frm the expiratin f the reslutin perid. Extensins may be available under sme circumstances if the requesting party can shw gd cause. Attrneys Fees fr Hearings Yu may be able t recver yur attrneys fees if yu prevail in a due prcess hearing r further civil actin. A petitin fr fees must be filed in a curt f cmpetent jurisdictin. A judge may make an award f attrneys fees based n prevailing rates in yur cmmunity. The curt may reduce an award f attrneys fees if it finds that yu unreasnably delayed the settlement r decisin in the case. If the district prevails and a curt agrees that yur request fr a hearing was fr any imprper purpse, such as t harass the district, yu may be required t pay the district s attrneys fees. CIVIL ACTION The independent hearing fficer s decisin is final unless yu r the district files a civil actin. If yu r the district disagrees with the findings r decisins made by a hearing fficer, either party may file a curt actin. The actin may be brught in a federal district curt r the Minnesta Curt f Appeals. Different standards f review apply in each curt. An appeal t the state Curt f Appeals must be made within 60 days f the date f the decisin. An appeal t a federal district curt must be made within 90 days f the date f the decisin. FOR MORE INFORMATION If yu need help in understanding this ntice r anything abut the student s educatin, please cntact the administratin at the student s schl, the district s special educatin directr, r the persn r the agencies listed belw. As indicated abve, this ntice is a general verview f private schl parental special educatin rights as f Nvember 2005, and is nt intended t address a parent s specific rights in a particular factual situatin. If yu have any questins r wuld like further infrmatin, please cntact: Name Phne Fr additinal assistance, yu may cntact any f the grups listed belw: ARC Minnesta Minnesta Disabilities Law Center 7
www.arcminnesta.cm http://www.mndlc.rg/ (651) 523-0823 (612) 332-1441 (800) 582-5256 (800) 292-4150 (612) 332-4668 (TTY) PACER Minnesta Department f Educatin http://www.pacer.rg/ http://www.educatin.state.mn.us (952) 838-9000 (651) 582-8689 (800) 537-2237 (651) 582-8201 (TTY) (952) 838-0190 (TTY) RRM: 189863 8