Special Ed Procedural Safeguards

Special Education Rights of Parents and Children Under the Individuals with Disabilities Education Act, Part B, and the  California Education Code 

Notice of Procedural Safeguards 

Revised October 2016 

Note: The term school district 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. Federal and state laws are cited throughout  this notice using English abbreviations, which are explained in a glossary on the last page of  this notification. 

What is the Notice of Procedural Safeguards? 

This information provides you as parents, legal guardians, and surrogate parents of children  with disabilities from three (3) years of age through age twenty-one (21) and students who have  reached age eighteen (18), the age of majority, with an overview of your educational rights or  procedural safeguards. 

The Notice of Procedural Safeguards is required under the Individuals with Disabilities  Education Act (in English, referred to as IDEA) and must be provided to you: • When you ask for a copy 

• The first time your child is referred for a special education assessment • Each time you are given an assessment plan to evaluate your child 

• Upon receipt of the first state or due process complaint in a school year, and • When the decision is made to make a removal that constitutes a change of placement 

(20 USC 1415[d]; 34 CFR 300.504; EC 56301[d] [2], EC 56321, and 56341.1[g] [1]) 

What is the Individuals with Disabilities Education Act (IDEA)? 

IDEA is a federal law that requires school districts to provide a “free appropriate public  education” (in English, referred to as FAPE) to eligible children with disabilities. A free  appropriate public education means that special education and related services are to be  provided as described in an individualized education program (in English, known as IEP) and  under public supervision to your child at no cost to you. 

May I participate in decisions about my child’s education? 

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 team meetings about  the identification (eligibility), assessment, or educational placement of your child and other  matters relating to your child’s FAPE. (20 USC 1414[d] [1]B–[d][1][D]; 34 CFR 300.321; EC 56341[b], 56343[c]) 

The parent or guardian, or the local educational agency (LEA), has the right to participate in the  development of the IEP and to initiate their intent to electronically audiotape the proceedings of the IEP team meetings. At least 24 hours prior to the meeting, the parent or guardian shall notify  the members of the IEP team of their intent to record a meeting. If the parent or guardian does  not consent to the LEA audiotape recording an IEP meeting, the meeting shall not be recorded  on an audiotape recorder. 

Your rights include information about the availability of FAPE, including all program options, and  all available alternative programs, both public and nonpublic. (20 USC 1401[3], 1412[a][3]; 34  CFR 300.111; EC 56301, 56341.1[g][1], and 56506) 

Where can I get more help? 

When you have a concern about your child’s education, it is important that you contact your  child’s teacher or administrator to talk about your child and any problems you see. Staff in your  school district or special education local plan area (SELPA) may answer questions about your  child’s education, your rights, and procedural safeguards. Also, when you have a concern, this  informal conversation often solves the problem and helps to 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 CDE special education California Parent Organizations Web  page at http://www.cde.ca.gov/sp/se/qa/caprntorg.asp.  

Additional resources are listed at the end of this document to help you understand the  procedural safeguards. 

What if my child is deaf, hard of hearing, blind, visually impaired, or deaf-blind? 

The State Special Schools provide services to students who are deaf, hard of hearing, blind, visually impaired, or deaf-blind at each of its three facilities: the California Schools for the Deaf  in Fremont and Riverside and at the California School for the Blind in Fremont. Residential and  day school programs are offered to students from infancy to age 21 at both State Schools for  the Deaf. Such programs are offered to students aged five through 21 at the California School  for the Blind. The State Special Schools also offer assessment services and technical  assistance. For more information about the State Special Schools, please visit the California  Department of Education (CDE) Web site at http://www.cde.ca.gov/sp/ss/ or ask for more  information from the members of your child’s IEP team. 

Notice, Consent, Assessment, Surrogate Parent  Appointment, and Access to Records 

Prior Written Notice 

When is a notice needed? 

This notice must be given when the school district 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. (20 USC 1415[b][3] and (4), 1415[c][1],  1414[b][1]; 34 CFR 300.503; EC 56329 and 56506[a]) 

The school district must inform you about proposed evaluations of your child in a written notice  or an assessment plan within fifteen (15) days of your written request for evaluation. The notice  must be understandable and in your native language or other mode of communication, unless it  is clearly not feasible to do so. (34 CFR 300.304; EC 56321) 

What will the notice tell me? 

The Prior Written Notice must include the following: 

1. A description of the actions proposed or refused by the school district 2. An explanation of why the action was proposed or refused 

3. A description of each assessment procedure, record, or report the agency used as a basis  for the action proposed or refused 

4. A statement that parents of a child with a disability have protection under the procedural  safeguards 

5. Sources for parents to contact to obtain assistance in understanding the provisions of this  part 

6. A description of other options that the IEP team considered and the reasons those options  were rejected; and 

7. A description of any other factors relevant to the action proposed or refused. (20 USC 1415[b][3] and [4], 1415[c][1], 1414[b][1]; 34 CFR 300.503) 

Parental Consent 

When is my approval required for assessment? 

You have the right to refer your child for special education services. You must give informed,  written consent before your child’s first special education assessment can proceed. The parent  has at least fifteen (15) days from the receipt of the proposed assessment plan to arrive at a  decision. The assessment may begin immediately upon receipt of the consent and must be  completed and an IEP developed within sixty (60) days of your consent.  

When is my approval required for services? 

You must give informed, written consent before your school district can provide your child with  special education and related services. 

What are the procedures when a parent does not provide consent? 

If you do not provide consent for an initial assessment or fail to respond to a request to provide  the consent, the school district may pursue the initial assessment by utilizing due process  procedures. If you refuse to consent to the initiation of services, the school district must not provide special  education and related services and shall not seek to provide services through due process  procedures. 

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 school district 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.  

In the case of reevaluations, the school district must document reasonable measures to obtain  your consent. If you fail to respond, the school district may proceed with the reevaluation without  your consent. (20 USC 1414[a][1][D] and 1414[c]; 34 CFR 300.300; EC 56506[e], 56321[c] and  [d], and 56346). 

When may I revoke consent? 

If at any time subsequent to the initial provision of special education and related services, the  parent of a child revokes consent in writing for the continued provision of special education and  related services, the public agency: 

1. May not continue to provide special education and related services to the child, but must  provide prior written notice in accordance with 34 CFR Section 300.503 before ceasing such  services 

2. May not use the procedures in subpart E of Part 300 34 CFR (including the mediation  procedures under 34 CFR Section 300.506 or the due process procedures under 34 CFR Sections 300.507 through 300.516) in order to obtain agreement or a ruling that the services  may be provided to the child 

3. 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  

4. Is not required to convene an IEP team meeting or develop an IEP under 34 CFR Sections  300.320 and 300.324 for the child for further provision of special education and related  services 

Please note, in accordance with 34 CFR Section 300.9 (c)(3), that if the parents revoke consent  in writing for their child’s receipt of special education services after the child is initially provided  special education and related services, the public agency 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. 

Surrogate Parent Appointment 

What if a parent cannot be identified or located?

School districts 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 school district  cannot discover the whereabouts of a parent. 

A surrogate parent may also be appointed if the child is an unaccompanied homeless youth, an  adjudicated dependent or ward of the court under the state Welfare and Institution Code, and is  referred to special education or already has an IEP. (20 USC 1415[b][2] ; 34 CFR 300.519; EC 56050; GC 7579.5 and 7579.6) 

Nondiscriminatory Assessment 

How is my child assessed for special education services? 

You have the right to have your child assessed in all areas of suspected disability. Materials and  procedures used for assessment and placement must not be racially, culturally, or sexually  discriminatory.  

Assessment materials must be provided and the test 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 so provide or administer.  

No single procedure can be the sole criterion for determining eligibility and developing FAPE for  your child. (20 USC 1414[b][1]–[3], 1412[a][6][B]; 34 CFR 300.304; EC 56001[j] and 56320) 

Independent Educational Assessments 

May my child be tested independently at the district’s expense? 

If you disagree with the results of the assessment conducted by the school district, you have the  right to ask for and obtain an independent educational assessment for your child from a person  qualified to conduct the assessment at public expense.  

The parent is entitled to only one independent educational evaluation at public expense each  time the public agency conducts an evaluation with which the parent disagrees. 

The school district must respond to your request for an independent educational assessment  and provide you information about where to obtain an independent educational assessment. 

If the school district believes that the district’s assessment is appropriate and disagrees that an  independent assessment is necessary, the school district must request a due process hearing  to prove that its assessment was appropriate. If the district prevails, you still have the  right to an independent assessment but not at public expense. The IEP team must consider  independent assessments.  

District assessment procedures allow in-class observation of students. If the school district  observes your child in his or her classroom during an assessment, or if the school district would  have been allowed to observe your child, an individual conducting an independent educational  assessment must also be allowed to observe your child in the classroom. 

If the school district proposes a new school setting for your child and an independent  educational assessment is being conducted, the independent assessor must be allowed to first observe the proposed new setting. (20 USC 1415[b][1] and [d][2][A]; 34 CFR 300.502; EC 56329[b] and [c])

Access to Educational Records 

May I examine my child’s educational records? 

You have a right to inspect and review all of your child’s education records without unnecessary  delay, including prior to a meeting about your child’s IEP or before a due process hearing. The  school district must provide you access to records and copies, if requested, within five (5)  business days after the request has been made orally or in writing. (EC 49060, 56043[n],  56501[b][3], and 56504) 

How Disputes Are Resolved 

Due Process Hearing 

When is a due process hearing available? 

You have the right to request an impartial due process hearing regarding the identification,  assessment, and educational placement of your child or the provision of FAPE. The request for  a due process hearing must be filed within two years from the date you knew or should have  known about the alleged action that forms the basis of the due process complaint. (20 USC 1415[b][6]; 34 CFR 300.507; EC 56501 and 56505[l]) 

Mediation and Alternative Dispute Resolution 

May I request mediation or an alternative way to resolve the dispute? 

A request for mediation may be made either before or after a request for a due process hearing  is made. 

You may ask the school district to resolve disputes through mediation or alternative dispute  resolution (ADR), which is less adversarial than a due process hearing. The ADR and mediation  are voluntary methods of resolving a dispute and may not be used to delay your right to a due  process hearing. 

What is a pre-hearing mediation conference? 

You may seek resolution through mediation prior to filing a request for a due process hearing.  The conference is an informal proceeding conducted in a nonadversarial manner to resolve  issues relating to the identification, assessment, or educational placement of a child or to a  FAPE.  

At the prehearing mediation conference, the parent or the school district may be accompanied  and advised by nonattorney representatives and may consult with an attorney prior to or following the conference. However, requesting or participating in a prehearing mediation  conference is not a prerequisite to requesting a due process hearing.  

All requests for a prehearing mediation conference shall be filed with the Superintendent. The  party initiating a prehearing mediation conference by filing a written request with the  Superintendent shall provide the other party to the mediation with a copy of the request at the  same time the request is filed.  

The prehearing mediation conference shall be scheduled within fifteen (15) days of receipt by  the Superintendent of the request for mediation and shall be completed within thirty (30) days  after receipt of the request for mediation unless both parties agree to extend the time. If a  resolution is reached, the parties shall execute a legally binding written agreement that sets  forth the resolution. All discussions during the mediation process shall be confidential. All  prehearing mediation conferences shall be scheduled in a timely manner and held at a time and  place reasonably convenient to the parties. If the issues fail to be resolved to the satisfaction of  all parties, the party who requested the mediation conference has the option of filing for a due  process hearing. (EC 56500.3 and 56503) 

Due Process Rights 

What are my due process rights? 

You have a right to: 

1. Have a fair and impartial administrative hearing at the state level before a person who is  knowledgeable of the laws governing special education and administrative hearings (20  USC 1415[f][1][A], 1415[f][3][A]-[D]; 34 CFR 300.511; EC 56501[b][4]) 

2. Be accompanied and advised by an attorney and/or individuals who have knowledge about  children with disabilities (EC 56505 [e][1]) 

3. Present evidence, written arguments, and oral arguments (EC 56505[e][2]) 4. Confront, cross-examine, and require witnesses to be present  

(EC 56505[e][3]) 

5. Receive a written or, at the option of the parent, an electronic verbatim record of the  hearing, including findings of fact and decisions (EC 56505[e][4]) 

6. Have your child present at the hearing (EC 56501[c][1])  

7. Have the hearing be open or closed to the public (EC 56501[c][2]) 

8. Receive a copy of all documents, including assessments completed by that date and  recommendations, and a list of witnesses and their general area of testimony within five (5)  business days before a hearing (EC 56505[e][7] and 56043[v]) 

9. Be informed by the other parties of the issues and their proposed resolution of the issues at  least ten (10) calendar days prior to the hearing (EC 56505[e][6]) 

10. Have an interpreter provided (CCR 3082[d]) 

11. Request an extension of the hearing timeline (EC 56505[f][3])  

12. Have a mediation conference at any point during the due process hearing (EC 56501[b][2]), and 

13. Receive notice from the other party at least ten days prior to the hearing that the other party  intends to be represented by an attorney (EC 56507[a]). (20 USC 1415[e]; 34 CFR 300.506,  300.508, 300.512 and 300.515)

Filing a Written Due Process Complaint 

How do I request a due process hearing? 

You need to file a written request for a due process hearing. You or your representative needs  to submit the following information in your request: 

1. Name of the child 

2. Address of the residence of the child 

3. Name of the school the child is attending 

4. In the case of a homeless child, available contact information for the child and the name of  the school the child is attending, and 

5. A description of the nature of the problem, including facts relating to the problem(s) and a  proposed resolution of the problem(s) 

Federal and state laws require that either party filing for a due process hearing must provide a  copy of the written request to the other party. (20 USC 1415[b][7], 1415[c][2]; 34 CFR 300.508;  EC 56502[c][1]) 

Prior to filing for a due process hearing, the school district shall be provided the opportunity to  resolve the matter by convening a resolution session, which is a meeting between the parents  and the relevant members of the IEP team who have specific knowledge of the facts identified in  the due process hearing request. (20 USC 1415[f][1][B]; 34 CFR 300.510) 

What does a resolution session include? 

Resolution sessions shall be convened within fifteen (15) days of receiving notice of the parents’ due process hearing request. The sessions shall include a representative of the  school district who has decision-making authority and not include an attorney of the school  district unless the parent is accompanied by an attorney. The parent of the child may discuss  the due process hearing issue and the facts that form the basis of the due process hearing  request.  

The resolution session is not required if the parent and the school district agree in writing to  waive the meeting. If the school district has not resolved the due process hearing issue within  thirty (30) days, the due process hearing may occur. If a resolution is reached, the parties shall  execute a legally binding agreement. (20 USC 1415[f][1][B]; 34 CFR 300.510) 

Does my child’s placement change during the proceedings? 

The child involved in any administrative or judicial proceeding must remain in the current  educational placement unless you and the school district agree on another arrangement.  If you are applying for initial admission of your child to a public school, your child will be placed  in a public school program with your consent until all proceedings are completed. (20 USC 1415[j]; 34 CFR 300.518; EC 56505[d])

May the decision be appealed? 

The hearing decision is final and binding on both parties. Either party may appeal the hearing  decision by filing a civil action in state or federal court within 90 days of the final decision. (20  USC 1415[i][2] and [3][A], 1415[l]; 34 CFR 300.516; EC 56505[h] and [k], EC 56043[w]) 

Who pays for my attorneys’ fees? 

In any action or proceeding regarding the due process hearing, the court, in its discretion, may  award reasonable attorneys’ fees as part of the costs to you as parent of a child with a disability  if you are the prevailing party in the hearing. Reasonable attorneys’ fees may also be made  following the conclusion of the administrative hearing, with the agreement of the parties. (20  USC 1415[i][3][B]–[G]; 34 CFR 300.517; EC 56507[b]) 

Fees may be reduced if any of the following conditions prevail: 

1. The court finds that you unreasonably delayed the final resolution of the controversy 2. The attorneys’ hourly fees exceed the prevailing rate in the community  for similar services by attorneys of reasonably comparable skill, reputation, and experience 3. The time spent and legal services provided were excessive, or 

4. Your attorney did not provide to the school district the appropriate information in the due  process request notice. 

Attorneys’ fees will not be reduced, however, if the court finds that the State or the school  district unreasonably delayed the final resolution of the action or proceeding or that there was a  violation of this section of law. (20 USC 1415[i][3][B]-[G]; 34 CFR 300.517) 

Attorneys’ fees relating to any meeting of the IEP team may not be awarded unless an IEP team  meeting is convened as a result of a due process hearing proceeding or judicial action.  Attorneys’ fees may also be denied if you reject a reasonable settlement offer made by the  district/public agency ten (10) days before the hearing begins and the hearing decision is not  more favorable than the offer of settlement. (20 USC 1415[i][3][B]–[G]; 34 CFR 300.517) 

To obtain more information or to file for mediation or a due process hearing,  contact: 

Office of Administrative Hearings 

Attention: Special Education Division 

2349 Gateway Oaks Drive, Suite 200 

Sacramento, CA 95833-4231 

(916) 263-0880 

FAX (916) 263-0890

School Discipline and Placement Procedures 

for Students with Disabilities 

School Discipline and Alternative Interim Educational Settings 

May my child be suspended or expelled? 

School personnel may consider any unique circumstances on a case-by-case basis when  determining whether a change in placement is appropriate for a child with a disability who  violates a code of student conduct from his or her setting to: 

• An appropriate interim alternative education setting, another setting, or suspension for  not more than ten (10) consecutive school days, and 

• Additional removals of not more than ten (10) consecutive school days in the same  school year for separate incidents of misconduct 

What occurs after a removal of more than ten (10) days? 

After a child with a disability has been removed from his or her current placement for ten (10)  school days in the same school year, during any subsequent days of removal the public agency  must provide services to enable the child to continue to participate in the general education  curriculum and progress toward meeting the goals set out in the child’s IEP. Also, a child will  receive, as appropriate, a functional behavioral assessment and behavioral intervention  services and modifications, which are designed to address the behavior violation so that it does  not recur. 

If a child exceeds ten (10) days in such a placement, an IEP team meeting must be held to  determine whether the child’s misconduct is caused by the disability. This IEP team meeting  must take place immediately, if possible, or within ten (10) days of the school district’s decision  to take this type of disciplinary action.  

As a parent you will be invited to participate as a member of this IEP team. The school district  may be required to develop an assessment plan to address the misconduct or, if your child has  a behavior intervention plan, review and modify the plan as necessary.  

What happens if the IEP team determines that the misconduct is not caused by  the disability? 

If the IEP team concludes that the misconduct was not a manifestation of the child’s disability,  the school district may take disciplinary action, such as expulsion, in the same manner as it  would for a child without a disability. (20 USC 1415[k][1] and [7]; 34 CFR 300.530) 

If you disagree with the IEP team’s decision, you may request an expedited due process  hearing, which must occur within twenty (20) school days of the date on which you requested  the hearing. (20 USC 1415[k][2]; 34 CFR 300.531[c]) 

Regardless of the setting the school district must continue to provide FAPE for your child.  Alternative educational settings must allow the child to continue to participate in the general curriculum and ensure continuation of services and modifications detailed in the IEP. (34 CFR 300.530; EC 48915.5[b]) 

Children Attending Private School 

May students who are parentally placed in private schools participate in publicly  funded special education programs? 

Children who are enrolled by their parents in private schools may participate in publicly funded  special education programs. The school district must consult with private schools and with  parents to determine the services that will be offered to private school students. Although school  districts have a clear responsibility to offer FAPE to students with disabilities, those children,  when placed by their parent in private schools, do not have the right to receive some  or all of the special education and related services necessary to provide FAPE. (20 USC 1415[a][10][A]; 34 CFR 300.137 and 300.138; EC 56173)  

If a parent of an individual with exceptional needs who previously received special education  and related services under the authority of the school district enrolls the child in a private  elementary school or secondary school without the consent of or referral by the local  educational agency, the school district is not required to provide special education if the district  has made FAPE available. A court or a due process hearing officer may require the school  district to reimburse the parent or guardian for the cost of special education and the private  school only if the court or due process hearing officer finds that the school district had not made  FAPE available to the child in a timely manner prior to that enrollment in the private elementary  school or secondary school and that the private placement is appropriate. (20 USC 1412[a][10][C]; 34 CFR 300.148; EC 56175)  

When may reimbursement be reduced or denied? 

The court or hearing officer may reduce or deny reimbursement if you did not make your child  available for an assessment upon notice from the school district before removing your child from  public school. You may also be denied reimbursement if you did not inform the school district  that you were rejecting the special education placement proposed by the school district,  including stating your concerns and intent to enroll your child in a private school at public  expense. 

Your notice to the school district must be given either: 

• At the most recent IEP team meeting you attended before removing your child from the  public school, or  

• In writing to the school district at least ten (10) business days (including holidays) before  removing your child from the public school. (20 USC 1412[a][10][C]; 34 CFR 300.148;  EC 56176) 

When may reimbursement not be reduced or denied?

A court or hearing officer must not reduce or deny reimbursement to you if you failed to provide  written notice to the school district for any of the following reasons: 

• The school prevented you from providing notice 

• You had not received a copy of this Notice of Procedural Safeguards or otherwise been  informed of the requirement to notify the district 

• Providing notice would likely have resulted in physical harm to your child • Illiteracy and inability to write in English prevented you from providing notice, or  • Providing notice would likely have resulted in serious emotional harm to your child (20 USC 1412[a] [10] [C]; 34 CFR 300.148; EC 56177) 

State Complaint Procedures 

When may I file a state compliance complaint? 

You may file a state compliance complaint when you believe that a school district has violated  federal or state special education laws or regulations. Your written complaint must specify at  least one alleged violation of federal and state special education laws. The violation must have  occurred not more than one year prior to the date the complaint is received by the California  Department of Education (CDE). When filing a complaint, you must forward a copy of the  complaint to the school district at the same time you file a state compliance complaint with the  CDE. (34 CFR 300.151–153; 5 CCR 4600) 

Complaints alleging violations of federal and state special education laws or regulations may be  mailed to: 

California Department of Education 

Special Education Division 

Procedural Safeguards Referral Service 

1430 N Street, Suite 2401 

Sacramento, CA 95814 

For complaints involving issues not covered by federal or state special education laws or  regulations, consult your district’s uniform complaint procedures. 

To obtain more information about dispute resolution, including how to file a complaint, contact  the CDE, Special Education Division, Procedural Safeguards Referral Service, by telephone at  (800) 926-0648; by fax at 916-327-3704; or by visiting the CDE Web site at http://www.cde.ca.gov/sp/se

Glossary of Abbreviations Used in This Notification ADR Alternative Dispute Resolution 

CFR: Code of Federal Regulations 

EC California Education Code 

FAPE Free Appropriate Public Education 

IDEA Individuals with Disabilities Education Act 

IEP Individualized Education Program 

OAH: Office of Administrative Hearings 

SELPA: Special Education Local Plan Area 

USC: United States Code

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