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Special Education Handbook
2012-2013 |
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IV. Procedural Safeguards
A. PRIOR WRITTEN NOTICE
The District provides prior written notice as required by IDEA and Operating Standards. See Appendix A which summarizes the situations in which prior written notice is required. The District uses the form required by ODE-OEC Prior Written Notice PR-01.
(1) CONTENT OF PRIOR WRITTEN NOTICE
The prior written notice, in accordance with the IDEA regulations and the Operating Standards, includes the following information to ensure that parents are fully informed of the action being proposed or refused:
(a) A description of the action proposed or refused by the District;
(b) An explanation of why the District proposes or refuses to take this action;
(c) A description of other options that the IEP team considered and the reasons why those options were rejected;
(d) A description of each evaluation procedure, assessment, record or report that the District used as a basis for the proposed or refused action;
(e) A description of other factors that are relevant to the District’s proposal or refusal;
(f) A statement that the parents of a child with a disability have procedural safeguards and, if the notice is not an initial referral for evaluation, the means by which a copy of the description of procedural safeguards can be obtained; and
(g) Sources for parents to contact to obtain assistance in understanding the provisions of Ohio’s rule regarding procedural safeguards.
(2) COMMUNICATION OF THE PRIOR WRITTEN NOTICE
The District provides the notice in the native language of the parents or other mode of communication used by the parents unless it is clearly not feasible to do so.
If the native language or other mode of communication is not a written language, the District takes steps to have the notice translated orally or by other means to the parent in the parent’s native language or other mode of communication. The District takes steps to ensure that such parents understand the content of the notice and maintains written evidence that both requirements set forth in this paragraph, if applicable, have been met.
The District may provide the prior written notice, procedural safeguards notice and the notification of a due process complaint by e-mail if the parents choose to receive the notices electronically.
B. PROCEDURAL SAFEGUARDS NOTICE
Parents of a child with a disability are entitled to specific procedural safeguards under IDEA and the Operating Standards.
Whose IDEA Is This? A Parent’s Guide to the Individuals with Disabilities Education Improvement Act of 2004, developed by ODE-OEC, includes a full explanation of these procedural safeguards as required by IDEA and 3301-51-02, 3301-51-04 and 3301-51-05 of the Operating Standards.
The District provides parents with a copy of Whose IDEA Is This? at least once a year. This includes:
(1) Providing a copy to the parents of a child who transfers into the District from out-of-state; and
(2) Providing a copy to the parents of a child who transfers into the District from an in-state school if the sending District has not provided a copy to the parents during the current school year.
In addition, the District provides parents with a printed copy of this procedural safeguards notice in each of the following circumstances:
(1) The initial referral or parental request for evaluation;
(2) The receipt of the first due process complaint in a school year;
(3) A change in placement for disciplinary action; and
(4) When requested by the parents or the child who has reached the age of majority.
In providing Whose IDEA is This?, the District follows the procedures for communication that are described above under Prior Written Notice.
C. PARENTAL CONSENT
Consent means that the parents:
(a) Have been fully informed, in the parents’ native language or other mode of communication, of all information relevant to the activity for which consent is sought;
(b) Understand and agree in writing to the carrying out of the activity for which the consent was asked. The consent describes that activity and lists the records (if any) that will be released and to whom they will be released; and
(c) Understand that the granting of consent is voluntary and may be revoked at any time.
(1) ACTIONS REQUIRING INFORMED WRITTEN PARENTAL CONSENT
The District obtains written consent from the parents before:
(a) Conducting an initial evaluation to determine if a child is eligible for special education;
(b) Initially providing special education and related services;
(c) Conducting a reevaluation when assessments are needed;
(d) Making a change in placement on the continuum of alternative placement options (i.e., regular classes, special classes, special schools, home instruction and instruction in hospitals and institutions); and
(e) Releasing personally identifiable information about the child to any person other than a person authorized to obtain those records without parental consent pursuant to FERPA. For example, parental consent is obtained prior to releasing records to a representative of an agency that is likely to be responsible for providing or paying for transition services or for the purposes of billing Medicaid.
The District uses the ODE-OEC required Consent for Evaluation PR-05 form to obtain written parental consent for evaluation and reevaluation and the required IEP PR-07 form to obtain written parental consent for the initial provision of special education and related services and for making a change in placement.
The District does not obtain written parental consent when reviewing existing data as part of an evaluation or reevaluation or when administering a test or evaluation that is given to all children, unless consent is required of all parents.
(2) CHANGE IN PLACEMENT
Once the District receives the initial parental consent for special education and related services, the District must obtain consent only for a change in placement. A “change of placement” means a change from one option on the continuum of alternative placements to another (instruction in regular classes, special schools, home instruction and instruction in hospitals and institutions).
If the District cannot obtain parental consent, it may file a due process complaint requesting a due process hearing or engage in conflict resolution to obtain agreement or a ruling that the placement may be changed.
(3) PARENTS’ FAILURE TO RESPOND OR REFUSAL TO PROVIDE CONSENT
The District makes “reasonable efforts” to contact parents and obtain written parental consent that may include:
(a) Written correspondence;
(b) Phone calls;
(c) Electronic mail communications, to include but not limited to e-mail and password-protected parent pages; and/or
(d) Visits to the home or parents’ places of employment.
The District documents its attempts. If the parents fail to respond or refuse to provide consent, the District proceeds as follows:
(4) INITIAL EVALUATION
If the parents fail to respond to the District’s efforts to obtain consent or refuse consent for the initial evaluation, the District may:
(a) Request a due process hearing and engage in conflict resolution (e.g., resolution meeting and/or mediation) to convince the parents to provide their consent; or
(b) Decide not to pursue the initial evaluation and provide the parents with prior written notice.
If the child is being home schooled or has been placed in a private school at the parents’ expense, the District cannot file a due process complaint or request the parents to participate in a resolution meeting and/or mediation.
(5) REEVALUATION
If the parents fail to respond to the District’s efforts to obtain consent for a reevaluation when assessments are needed, the District proceeds with the reevaluation.
If the parents expressly refuse consent for a reevaluation when assessments are needed, the District may:
(a) Agree with the parents that a reevaluation is unnecessary;
b) Conduct a reevaluation by utilizing data and/or documentation that the District already possesses;
(c) Request a due process hearing and engage in conflict resolution (e.g., resolution meeting and/or mediation) to convince the parents to provide their consent; or
(d) Decide not to pursue having the child reevaluated.
The District continues to provide FAPE to the child if the District agrees with the parents that a reevaluation is unnecessary.
(6) INITIAL PROVISION OF SPECIAL EDUCATION AND RELATED SERVICES
If the parents do not attend the IEP meeting to develop the IEP for the initial provision of services, the District attempts to obtain written parental consent through other methods such as calling the parents, corresponding with the parents and or visiting the parents.
If the parents expressly refuse consent, as evidenced by their signatures on the IEP indicating that consent is not given, the District maintains a copy of the signed IEP showing that the District offered FAPE.
If the parents fail to respond or refuse consent, the District provides the parents with prior written notice and continues to provide the child with appropriate interventions in the regular education classroom. The District may not request a due process hearing or engage in conflict resolution to obtain agreement or a ruling that services may be provided to the child.
The District does not use the parents’ refusal to consent to one service or activity to deny the parents or the child any other service, benefit or activity in the District, except in those instances in which IDEA authorizes that denial.
(7) REVOCATION OF CONSENT
The parents may revoke consent for and remove the child from special education and related services. Once the District receives written revocation of consent, it provides the parents with prior written notice and continues to provide the child with appropriate interventions through the regular education environment.
The District is not required to amend the child’s education records to remove any references to the child’s receipt of special education and related services because of the revocation of consent.
If a parent has provided written revocation of consent, the District does not file a due process complaint or engage in conflict resolution to attempt to obtain agreement or a ruling that special education and related services may be provided to the child.
D. INDEPENDENT EDUCATIONAL EVALUATION
Parents who disagree with an evaluation that was completed or obtained by the District may request an independent educational evaluation at public expense. Parents are entitled to request only one independent educational evaluation at public expense each time the District conducts an evaluation with which the parents disagree.
(1) INDEPENDENT EDUCATIONAL EVALUATION AT PUBLIC EXPENSE
If the parents request an independent educational evaluation at public expense, the District either:
(a) Ensures that an independent evaluation is provided at public expense; or
(b) Files a due process complaint requesting a hearing to show that the District’s evaluation is appropriate.
If the District files a due process complaint and the final decision is that the District’s evaluation is appropriate, the parent still has the right for an independent educational evaluation, but not at the public expense.
(2) PARENT INITIATED EVALUATIONS
If a parent obtains an independent educational evaluation at public expense or shares with the District an evaluation obtained at private expense, the District considers that evaluation, if it meets District criteria, in any decision made with respect to the provision of FAPE to the child.
(3) DISTRICT CRITERIA
If an independent educational evaluation is 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 District uses when it initiates an evaluation, to the extent those criteria are consistent with the parent’s right to an independent educational evaluation. Except for the above-mentioned criteria, the District does not impose conditions or time lines related to obtaining an independent educational evaluation at public expense.
E. CONFLICT RESOLUTION
(1) ADMINISTRATIVE REVIEWS
Within 20 days of receipt of a complaint from a child’s parents or another educational agency, the District’s superintendent, or the superintendent’s designee, conducts a review, may hold an administrative hearing and notifies all parties of the decision in writing.
(a) All parties have the right to invite others, including legal counsel, to participate in the review.
(b) The review is conducted at a time and place convenient to all parties.
(c) Every effort is made to resolve any disagreements at the administrative review.
(2) MEDIATION
At its discretion, the District participates in the resolution of disputes with other parties through the voluntary mediation processes available through ODE-OEC.
(3) IMPARTIAL DUE PROCESS HEARING/RESOLUTION MEETINGS
Due process complaints filed against the District proceed in the manner set forth in 3301-51-05(K) of the Operating Standards.
The District convenes a resolution meeting before the initiation of a due process hearing. The resolution meeting:
(a) Occurs within 15 days of the receipt of notice of the parents’ due process complaint;
(b) Includes a representative of the District who has decision-making authority on behalf of the District;
(c) Does not include the District’s attorney unless the parents are accompanied by an attorney;
(d) Provides an opportunity for the parents to discuss their due process complaint and the facts the complaint is based on; and
(e) Provides the District an opportunity to resolve the dispute.
The District does not hold a resolution meeting if the parents and the District agree in writing to waive the meeting or agree to use the mediation process. Also, if the District files the due process complaint, it is not required to hold a resolution meeting.
The District, if it is the child’s school district of residence, is responsible for conducting the impartial due process hearing utilizing the hearing officer appointed by ODE-OEC. The District follows the procedures required by 3301-51-05(K)(10)–(15) of the Operating Standards when conducting a hearing at a time and place that is reasonably convenient to the parents and the child involved.
If the parents request to inspect and review any education records relating to their child, the District replies without unnecessary delay and makes the records available before the hearing.
The District provides the parents with one copy of the written, or at the option of the parents, an electronic verbatim record of the hearing and findings of fact and decision at no cost. The decision is final except that any party to the hearing may appeal the decision to ODE-OEC.
The District pays for the costs incurred for the hearing except for expert testimony, outside medical evaluations, witness fees, subpoena fees and cost of counsel requested by the other party to the hearing and compensates the hearing officer as provided in 3301-51-05(K)(16)(d) of the Operating Standards. If the hearing was requested by another agency, the District shares the costs of the hearing except for the costs identified in the preceding sentence.
Any further appeals or actions proceed in accordance with 3301-51-05 of the Operating Standards.
F. CHILD’S STATUS DURING DUE PROCESS PROCEEDINGS/CODE OF CONDUCT VIOLATIONS
(1) CHILD’S STATUS DURING DUE PROCESS PROCEEDINGS
The District ensures that a child remains in the current educational placement during the pendency of any administrative or judicial proceeding regarding a due process complaint, unless the state or the District and the parents of the child agree otherwise. If the state level review officer agrees with the child’s parents that a change in placement is appropriate, that placement is treated as an agreement between the state and the parents.
If the complaint involves an application for initial admission to the District, the child, with the consent of the parents, is placed in the District until the completion of all proceedings.
If the complaint involves an application for services from a child who is transitioning from Part C to Part B, the District provides those special education and related services that are not in dispute, if the child is found eligible for special education and related services under Part B and the parent consents to the initial provision of special education and related services.
(2) DISCIPLINARY PROCEEDINGS
The District may consider any unique circumstances on a case-by-case basis when determining whether a change in placement, consistent with the other requirements of 3301-51-05 of the Operating Standards, is appropriate for a child with a disability who violates a code of student conduct.
(a) Changes in placement less than 10 consecutive school days
The District may remove a child with a disability who violates a code of student conduct from the child's current placement to an appropriate interim alternative educational setting, another setting, or suspension, for not more than 10 consecutive school days (to the extent those alternatives are applied to children without disabilities), and for additional removals of not more than 10 consecutive school days in that same school year for separate incidents of misconduct (as long as those removals do not constitute a change of placement).
The District considers on a case-by-case basis whether a pattern of removals constitutes a change of placement. A change in placement occurs if:
(1) The removal is for more than 10 consecutive school days, or
(2) The child has been subjected to a series of removals that constitute a pattern:
(a) Because the series of removals totals more than 10 school days in a school year;
(b) Because the child’s behavior is substantially similar to the child’s behavior in previous incidents that resulted in the series of removals; and
(c) Because of such additional factors as the length of each removal, the total amount of time the child has been removed and the proximity of the removals to one another.
(b) Services during removal from current placement
The District provides services to a child removed from the child’s current placement as follows:
(1) If the child has been removed from the child’s current placement for 10 school days or less in the school year, services are provided only to the extent that services are provided to a child without disabilities who is similarly removed;
(2) After a child with a disability has been removed from the child’s current placement for 10 school days in the same year (under circumstances in which the current removal is for not more than 10 consecutive days and is not a change in placement), the District provides services, as determined by school personnel in consultation with at least one of the child’s teachers, so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP;
(3) If the removal is a change in placement, the child’s IEP team determines appropriate services; and
(4) If a child with a disability is removed from the child’s current placement for either more than 10 consecutive days for behavior that is determined not to be a manifestation of the child’s disability or under circumstances that constitute special circumstances, as defined below, the District ensures that the child:
(a) Continues to receive educational services so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP; and
(b) Receives, as appropriate, a functional behavioral assessment and behavioral intervention services and modifications that are designed to address the behavior violation so that it does not recur.
(c) Manifestation determination
Within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct, the school district, the parent and relevant members of the child's IEP team (as determined by the parent and the school district) must review all relevant information in the child's file, including the child's IEP, any teacher observations and any relevant information provided by the parents to determine if the conduct was a manifestation of the child’s disability. The District determines that the conduct is a manifestation of the child’s disability:
(1) If the conduct in question was caused by, or had a direct and substantial relationship to, the child's disability; or
(2) If the conduct in question was the direct result of the school district's failure to implement the IEP.
If the District, parents and relevant members of the IEP team determine that the conduct in question was the direct result of the school district’s failure to implement the IEP, the District takes immediate steps to remedy those deficiencies.
(1) If the conduct was a manifestation of the child’s disability, the IEP team either:
(a) Starts to conduct a functional behavioral assessment within 10 days of the manifestation determination and complete the assessment as soon as practicable, unless the school district had conducted a functional behavioral assessment before the behavior that resulted in the change of placement occurred, and implemented a behavioral intervention plan for the child; or
(b) If a behavioral intervention plan already has been developed, within 10 days of the manifestation determination, reviews the behavioral intervention plan and the implementation of the plan, and modifies it, as necessary, to address the behavior subject to disciplinary action; and
(2) Returns the child to the placement from which the child was removed, unless the parent and the District agree to a change of placement as part of the modification of the behavioral intervention plan.
(d) Special circumstances.
The District may remove a child to an interim alternative educational setting for not more than 45 school days without regard to whether the behavior is determined to be a manifestation of the child's disability, if the child:
(1) Carries a weapon to or possesses a weapon at school, on school premises, or to or at a school function under the jurisdiction of ODE or a school district;
(2) Knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school, on school premises, or at a school function under the jurisdiction of ODE or a school district; or
(3) Has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of ODE or a school district.
The District defines the terms controlled substance, weapon, illegal drug and serious bodily injury in accord with 3301-51-05(K)(20)(h)(i) of the Operating Standards.
On the date on which the decision is made to make a removal that constitutes a change of placement of a child with a disability because of a violation of a code of student conduct, the school district must notify the parents of that decision and provide the parents with the procedural safeguards notice described in Section B above.
(e) Expedited Due Process Hearing
The District or the parents may submit a due process complaint requesting an expedited due process hearing to appeal a decision made during disciplinary procedures.
(1) The District may request an expedited due process hearing if it believes that maintaining the current placement of a child is substantially likely to result in injury to the child or to others.
(2) The parents may request an expedited due process hearing to appeal decisions regarding placement for disciplinary removals or the manifestation determination.
The District is responsible for conducting the expedited due process hearing utilizing the hearing officer appointed by ODE-OEC. The District follows the procedures that apply for other due process hearings except that the expedited due process hearing must occur within 20 school days after the date the due process complaint is filed and no extensions of time shall be granted. The hearing officer then must make a determination within 10 school days after the hearing. The District follows the expedited time lines and the procedures set forth in 3301-51-05(K)(22)(c)-(d) of the Operating Standards.
G. TRANSFER OF PARENTAL RIGHTS AT AGE OF MAJORITY/STUDENT NOTIFICATION
Once a child reaches the age of majority, the District sends all required notices to both the student and parent, unless the student has been determined incompetent under state law. If a child with a disability is incarcerated in an adult or juvenile correctional institution, prior written notices are provided to both the parents and the student.
One year before the child’s 18th birthday, the District notifies both the parents and the child of the parental rights that will transfer to the child upon reaching the age of majority (age 18) and provides the child with a copy of Whose IDEA Is This? The District documents this notice on the child’s IEP PR-07 form.
Once the child turns 18, the District obtains informed written consent, as required by the Operating Standards, from the student, unless the student has been determined incompetent under state law.
H. SURROGATE PARENTS
The District ensures that the rights of a child are protected when:
(1) No parent, as defined in 3301-51-01 of the Operating Standards, can be identified;
(2) The District, after making reasonable efforts, cannot locate a parent;
(3) The child is a ward of the state; or
(4) The child is an unaccompanied homeless youth as defined by 3301-51-05(E)(1)(d) of the Operating Standards.
(4) The child is an unaccompanied homeless youth as defined by 3301-51-05(E)(1)(d) of the Operating Standards.
One way in which the District protects the rights of such children is through the assignment of surrogate parents where appropriate. The District has a method for determining when a child needs a surrogate parent and for assigning a surrogate parent to the child, and complies with the requirements of 3301-51-05(E) of the Operating Standards regarding surrogate parents.
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