Due Process Rights | Policy 7630

In accordance with the Individuals With Disabilities Education Act (IDEA) as well as Part 200 of the Regulations of the Commissioner of Education, a procedural safeguards notice must be provided to parents, as required by Section 1410(d)(l) of IDEA, upon:

a) Initial referral for evaluation for the provision of special education services;
b) Each notice of an individualized education program
(IEP) meeting;
c) Reevaluation of the child;
d) Registration of a request for a due process proceeding (mediation or an impartial hearing);
e) A decision to remove a child from his/her current educational placement for more than ten (10) cumulative or consecutive days in a given school year as the result of disciplinary action [20 United States Code (USC)1415(k)(4)(A)].

New York State Regulations also require the procedural safeguards notice to be provided to parents when:

a) The Committee on Special Education/Committee on Preschool Special Education notifies the parent of its recommendation;
b) The recommendation is reviewed by the Board of Education.

Individuals With Disabilities Education Act (IDEA) United States Code (U.S.C.) Sections 1400-1485 Education Law Sections 4401-4407
8 New York Code of Rules and Regulations
(NYCRR) Part 200

Adopted 01/19/99

NEW YORK STATE DUE PROCESS RIGHTS FOR PARENTS OF CHILDREN WITH DISABILITIES

YOUR RIGHTS AS A PARENT

You and your School District are vital members of a team that is responsible for developing an appropriate educational program for your child. According to the least restrictive environment (LRE) requirements of Federal and State law and regulation, a student may be removed from the general education environment only when the nature or severity of the disability is such that the student’s education cannot be satisfactorily achieved even with the use of supplementary supports and services in the general education setting.

You must be given opportunities for active participation in the discussion and decision making about your child’s needs for special education. A full explanation of the process Is m A Parent’s Guide to Special Education. The following information concerns due process rights — your legal rights under Federal and State laws to be involved and make sure that your child receives an appropriate education.

SECTION 1: YOUR CHILD’S EDUCATIONAL RECORDS

A. You have the right to ask for and read records about your child unless the District has been legally notified in writing that your rights have been terminated under State law (such as special cases of guardianship, separation and divorce). You have the right to ask for and receive explanations and interpretations of the records from your School District. You may also receive copies of your child’s educational records. The School District may charge a reasonable cost for copies of the records. However, if you cannot afford the fee, you still have the right to see, review and receive the records.

B. You have a right to ask for and read any of your child’s educational records:
1) Within a reasonable time.
2) In no case more than 45 days after you ask.
3) Before any meeting about your child’s individualized education program (IEP).
4) Before any due process hearing about your child’s special education needs.

C. Personal information about your child may not be released without your consent unless it is:
1) Given to school officials or teachers with a legitimate educational interest, State and local educational authorities, or certain individuals designated under Federal Law.
2) Used to meet a requirement under Federal Law.

SECTION 2: EVALUATIONS

A. Individual evaluation
An individual evaluation means any procedures, tests, or assessments, including observations, given individually to your child to find out whether he or she has a disability and/or to identify his/her special education needs. The term does not include basic tests given to groups of children in a school, grade or class. Parents have the right to a copy of the evaluation report and documentation of determination of eligibility.

B. Independent educational evaluation
An independent educational evaluation (IEE) of your child means a procedure, test or assessment done by a qualified examiner who does not work for the School District or other public agency responsible for the child’s education. You may get an IEE at District expense if you disagree with the evaluation arranged for by the School District. However, the District may challenge your request at an impartial hearing.
Independent evaluators must meet the same qualifications as School District evaluators and follow the accepted evaluation procedures. The School District can set policy regarding the criteria upon which an IEE can be reimbursed. Any policy set by the School District must always allow for exceptional circumstances.

C. You have the right to:
1) Receive, when you ask your School District, the names, addresses and telephone numbers of appropriate public and private agencies and other professional resources where IEE may be done. You do not have to choose from this list.
2) Request an IEE at District expense. The School District may ask for an impartial hearing to show that its evaluation is appropriate. However, if the impartial hearing officer (MO) finds that the District evaluation is appropriate, you have the right to obtain and submit to the Committee on Special Education (CSE) or Committee on Preschool Special Education (CSE) an IEE, but not at District expense.
3) Have the results of an independent IEE discussed by the Committee as part of its review and in the development of your child’ s IEP. The results of the IEE can be used as evidence at an impartial hearing.
4) Have an IEE at District expense if the MO asks for this evaluation as part of a hearing.

SECTION 3: NOTICE AND PARENT CONSENT

There are many times when the School District must notify you of its proposed action and ask for your written consent to carry out this action.

A. Consent means that:
1) You have been told in the language you speak, or other kind of communication that you understand, all the information about:
a. The activity for which your permission is asked,
b. The records that will be released, and
c. To whom they will be given.
2) You understand and agree in writing to the activity for which your permission is needed.
3) Your permission is given freely and may be changed at any time.

B. Your consent upon initial evaluation, recommendation of placement or reevaluation
Your consent will be requested if:
1) Your child will be evaluated for the first time by the Committee to decide if he/she has a disability and needs special education.
2) Your child is recommend to receive special education services and programs for the first time.
3) Your child is being provided twelve-month special education services and/or programs during July and August for the first time.
4) Your child needs a new test or assessment as part of a reevaluation. However, if you do not respond to the School District’s request, the District may go forward with the reevaluation.

C. Notice:
Notice is a written statement provided to you in the language you speak or other kind of communication that you understand unless it is clearly not possible to do so. If the language you speak at home or other kind of communication you understand is not a written language, the District must take steps to make sure that the notice is translated orally or by other means so that you understand the notice. You have the right to ask for an interpreter, translator or reader for the meetings. The School District must keep written records that these steps have been taken.

D. Notice must include:
1) A description of the action offered or refused by the CPSE or CSE.
2) An explanation of why the School District will or will not take action.
3) A description of any options the School District considered, the reasons why those choices where refused and the reasons why the suggested choice(s) was selected.
4) A description of each evaluation, procedure, test, record or report the School District used as a reason to offer or refuse an action.
5) A description of any other facets that are relevant to the District’s decision.
6) A statement that the parents have protection under the procedural safeguards and, if this notice is not an initial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained.
7) Sources for parents to contact to get assistance in understanding the special education process and their rights.
8) A description of any other information discussed by the CSE/CPSE which affected its recommendation.
9) A statement of your right to ask the school physician to be at the meeting of the CSE (this does not apply to parents of preschool children). You must do this in writing at least 72 hours before the meeting.
10) A statement that a parent may make a written referral to the CSE any matter that the parent disagrees with the recommendation of a Subcommittee.
11) A copy of the school’s policy about psychotropic drugs if the recommend placement is for your child to attend a school which uses such drugs.
12) Information on community support services if your child is at risk of a residential school placement.
13) For students age 18 who are in residential placement, information that the student will no longer be eligible for special education at the end of the school year in which the student turns 21 or upon receiving a high school diploma, and that the parent may consent to have the student’s name forwarded to an appropriate agency to determine need for adult services.
14) For students age 15 who receive special education services or programs 100% of the school day with intensive management needs or severe disabilities and who may need adult services, information that the student will no longer be eligible for special education at the end of the school year in which the student turns 21 or upon receipt of a high school diploma.
15) For students for whom a meeting will be held to consider transition services, a statement that indicates the purpose of the meeting and that the student will be invited and lists any other agencies that will be invited to send a representative.

If you are a parent of a preschool child, the notice must include:

16) A description of what you will need to do to select an approved preschool program to conduct an evaluation of your preschool child.
17) A list which describes approved preschool programs in your county and bordering counties that are approved to conduct an evaluation.
18) A statement of your child’s pendency rights.

E. You have the right to:
1) Receive notice of meetings at least five days prior to the CSE/CPSE meeting. This notice will tell you the date, time, location and names and titles of the persons attending the meeting. If the meeting time or place is not good for you, you may call the School District to make a change that is good for both of you. You may bring anyone who has knowledge or special expertise about your child to the meeting to assist your participation in the development of recommendations for your child.

2)Receive notice when the Board of Education either arranges to provide the services for your child recommend by the CPSE/CSE or sends the recommendation back to the Committee for reconsideration.

If you are a parent of a preschool child:

3) Receive before the meeting of the CPSE:
a. A notice of your right to address the CPSE in person or in writing.
b. A summary of your child’s evaluation report.
c. The written documentation to be used by the CPSE, if you ask for it.
4) Receive a statement of why it recommended a program different from the one you wanted if you do not agree with the recommendation of the CPSE and indicate that, if you do not agree with the placement, no further action will be taken by the CPSE without your consent.
5) Receive notice:
a. The Board of Education (BOE) stops the special education services and programs being given to your preschool child because you have moved out of the School District.
b. If the BOE decides that another county has responsibility for your preschool child because you moved to a different county within the same School District.

SECTION 4: PLACING YOUR CHILD IN A PRIVATE SCHOOL

1) You have the right to a free appropriate public education for your child.
2) If you place your child in a private school, you are responsible for the cost unless you can prove at an impartial hearing that the School District did not or is unable to provide your child with an appropriate education and that the school you choose is appropriate to meet your child’s educational needs.
3) If you plan to place your child in a private school and have the School District pay, you must:
a. Inform the School District at the most recent IEP meeting you attend that you are rejecting the placement proposed by the School District, state your concerns and that you will be place your child at a private school at public expense, or
b. Provide the School District with written notice 10 business days prior to placing your child in the private school. You must provide the information stated above.
4) If the School District gave you written notice that it wants to evaluate your child before you remove him/her from the public school, you must make your child available for the evaluation if you wish to seek payment of the cost of the private school.
5) If you do not inform the School District, make your child available for the evaluation, or if there are other unreasonable actions on your part, it could result in an impartial hearing officer or court reducing or denying the reimbursement of costs of the private school for your child.

SECTION 5: DUE PROCESS RIGHTS

A. Opportunity to present complaints
You have the right to submit a complaint to the New York State Education Department if you believe that your School District has violated procedures under State or Federal special education laws and regulations. You must make your complaint in writing and send it to:

Manager, Special Education Policy & Quality Assurance Office of Vocational and Educational Services for Individuals With Disabilities
One Commerce Plaza, Room 1624
Albany, NY 12234

A determination must be made within 60 days of receipt of the complaint.

If you disagree with the findings, you may appeal to:

Ms. Judith Heumann, Assistant Secretary United States Department of Education
Office for Special Education and Rehabilitative Services
330 C Street, SW
Washington, DC 20202-2500

B. Special education mediation
Special education mediation is a voluntary process which all school districts must offer parents as a way to work out disagreements with the recommendations of the CPSE/CSE. You and a person chosen by the BOE meet with an independent mediator who helps in reaching agreement about the recommendation for your child. Mediation is at no cost to you. If you decide to use mediation, you must ask for it by writing to the BOE. If you decide not to use mediation, you may be called by some one from the Community Dispute Resolution Center (CDRC) to talk about the benefits of mediation.

C. You have the right to:
1) Mediation as another choice to work out disagreements.
2) Mediation run by a mediator from a CDRC.
3) Mediation held in a timely manner and at a location that is good for you and the District.
4) Have any agreements made during mediation written down. Written agreements may be presented as part of the record at an impartial hearing.
5) Have discussions that occur during the mediation process be confidential and not used as evidence in any impartial hearing or civil proceedings. Parties to the mediation process may be required to sign a confidentiality pledge prior to the mediation.
6) Ask for an impartial hearing at any time.

D. Impartial due process hearings
An impartial hearing is a legal process in which disagreements between you and the School District are decided by an impartial hearing officer (MO) appointed by the BOE.

1) Your request for an impartial hearing” must:
a. Be made in writing to the BOE.
b. Describe the facts relating to your concerns and a proposed solution.
c. State your child’s name and address.
d. Name the school your child attends.

* A form is attached that may be used to request an impartial hearing or mediation.
2) If you do not give the information stated above, it may result in a reduction of an award of attorneys’ fees by a court.
3) An impartial hearing may be initiated by you or the BOE if the CPSE/CSE proposes or refuses to start, continue or change the identification, evaluation or educational placement of your child or the provision of a free appropriate public education (FAPE) to your child,
4) For school-age children, the School District must begin an impartial hearing when you do not give consent to an initial evaluation, to the initial placement of your child in special education programs and services or the initial placement of your child in a twelve-month service or program. The District must also begin an impartial hearing if you refuse to consent to a new test as part of a reevaluation.
5) For three- and four-year-old children, the School District may not begin a hearing if you refuse to give consent to initial evaluation, initial placement in special education or initial placement of your child in a twelve-month special education service and/or program.
6) The impartial hearing is at no cost to you. However, you must pay your own attorney’s fees. Upon your request, the School District will give you the names, addresses and telephone numbers of appropriate agencies and professionals who offer free or low-cost legal aid and other services.

E. At an impartial due process hearing, both parties have the right to:
1) Have and be advised by an attorney and/or by individuals with special knowledge or training about the education of students with disabilities.
2) Present evidence and testimony, and question, cross-examine and require the attendance of witnesses.
3) Receive information, including evaluations and recommendations, at least five business days before the hearing and to stop such information from being presented that was not exchanged between both parties on time.
4) Receive at your option, a written or electronic word-for-word record of the hearing.
5) Receive at your option, the written or electronic word-for-word findings of fact and the decision of the MO. After leaving out personal information, copies of the decision are provided to the State Education Department (SED) and the Commissioner’s Advisory Panel (CAP) for Special Education Services and made available to the public.

F. You have the right to:
1) Have the hearing open to the public.
2) Have your child present during the hearing.
3) Have an interpreter, if necessary, at no cost to you.

G. Timelines and convenience of hearings
In an impartial hearing you have the right to:
1) Receive a copy of the written or electronic word-for-word findings of fact and the decision of the impartial hearing officer not later than 45 calendar days after the receipt of a request for a hearing for a school-age child, or 30 calendar days for a preschool child. However, the IHO may extend the time for a specific period at the request of you or the School District.
2) Have an impartial hearing conducted at a time and place that is reasonably convenient for you and your child.

H. Impartial hearing officer
An IHO must be a qualified individual certified by the Commissioner of Education to conduct impartial hearings. An IHO must be selected on a rotational basis from a list maintained by the School District that includes their names and backgrounds.

I. Others Who May be Involved:
1) Guardian ad litem: A guardian ad litem is someone who may be appointed by an IHO if he/she feels that:
a. Your interests are not the same as or are in conflict with those of your child.
b. The interests of your child would be best protected by someone else.

In the event a guardian ad litem is assigned, the IHO must make sure that your due process rights are protected throughout the hearing.

2) Surrogate parents: Each school district must try every reasonable way to notify the parents of the child who has been referred to or is in need of special education and related services. The BOE must appoint a surrogate parent to speak for the child from the list kept by the Board if:

a. The School District, after reasonable efforts, cannot find the parent.
b. The child’s parents or guardian are not known.
c. The child is a ward of the State.

The person selected as a surrogate parent:

a. Can speak for the child in all matters.
b. As much as possible, should be of same racial, cultural and language background as the child, and be generally familiar with the educational choices for students with disabilities.
c. Must be committed to learn about the child and the child’s needs.
d. Must have the information and skills to speak for the child.
e. Cannot have any interests which conflict with the interests of the child he or she represents.
f. Cannot be an officer, agent or employee of the School District, the SED or the public agency which is involved in the education or care of the child.

J. Administrative appeal; impartial review
The decision made by the impartial hearing officer must be obeyed by you and the School District unless you or the School District ask for a review of the decision of the IHO (called an appeal) by the State Review Officer (SRO). An appeal must be in writing and be received by the SRO within 30 calendar days after you and the School District receive the decision of the IHO.

K. The State Review Officer (SRO) must:
1) Make an independent decision after a complete review of the hearing record.
2) Make sure that steps taken at the hearing agree with due process requirements and get more evidence, if necessary.
3) Direct that a hearing be held if the SRO decides that more spoken evidence is necessary. If a hearing is held, all the parent rights listed under impartial hearings continue. A review involving spoken arguments must be held at a time and place that is reasonably convenient to the parents and child involved.
4) Make a final decision within 30 calendar days after receiving the request for a review. The SRO may extend the time beyond the 30 days at the request of you or the School District. The extension must be for a specific time.
5) Mail copies of the written findings of fact and the decision to you or your attorney and the BOE within the
30- day period. The written findings of fact and the decision of the SRO are sent to the Commissioner’s Advisory Panel and made available to the public.

L. Civil action
The decision of the SRO is final unless either you or the School District seeks review of the SRO’s decision in either State Supreme Court or Federal Districts Courts within four months from the date of the SRO’s decision.

M. Pendency: Where your child will stay during due process proceedings.
1) Preschool child
Your preschool child will stay in the placement he/she is in now during all proceedings, unless you and the BOE or the Commissioner of Education agree in writing to other arrangements. This is called pendency. Additionally,
a. Your preschool child with a disability may not remain in an approved preschool special education program for which he or she is too old unless the preschool special education program also has an approved school-age special education program.
b. If your preschool child received early intervention services, he or she may continue to receive preschool special education services in an approved preschool program, if appropriate, until all the actions are finished.
c. If your preschool child is currently not receiving special education services and programs, he/she may receive special education services and programs until all actions are finished if you and the BOE or the Commissioner of Education agree.
2) School-age child
Your school-age child will stay in the school placement he/she is in now during all proceedings, unless you and the School District agree in writing to other arrangements. If the disagreement involves initial admission to public school, you have the right to have your school-age child placed in a public school program with your consent until all proceedings are over. If the due process proceeding concerns consent for an initial evaluation, your child will not be evaluated while the proceeding is pending.

N. Attorneys’ fees
A court may award reasonable attorneys’ fees to the parents or guardian of a child with a disability if they are the party who wins the hearing. Attorney’s fees may be lowered if you unreasonably delay an agreement or a decision in the case; if the fees, time spent or services of your attorney exceed reasonable rates; or if you failed to provide the information required under Section 5D in your request for a hearing. Attorneys’ fees may not be awarded for mediation held before you asked for a hearing or for CSEJCPSE meetings unless they were the result of a due process proceeding or court action. Attorneys’ fees may not be awarded if a written offer of settlement is made by the School District within 10 days prior to the proceeding, you do not accept the offer within 10 days and the court or hearing officer finds that the decision is not more favorable to the parents than the offer of settlement. However, attorneys’ fees will not be reduced if a court finds that the State or School District unreasonably delayed the final resolution of the action or proceeding or there was a violation of your child’s due process rights.

SECTION 6: DISCIPLINARY PROCEDURES

A. When can your child’s placement be changed?
1) If your child violates the school’s discipline code, the school may change your child’s placement to an interim alternative educational setting, another setting or suspend your child for not more than 10 school days in a school year to the same extent as a child without a disability. The CSE will decide the nature of the setting.
2) The School District may change your child’s placement to an interim alternative educational setting for up to 45 days if:
a. Your child brings a weapon to school or to a school activity; or
b. Your child knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or at a school activity.

The CSE will decide the nature of the setting.

3) The School District may get an order from an MO to change your child’s educational placement to an interim alternative educational setting for up to 45 days if there is substantial evidence that your child or others are likely to be injured if your child stays in the current placement. The MO will decide the nature of the setting.
a. Your child will remain in the interim alternative educational setting pending the decision of the MO or until the 45 days expire unless you and the School District otherwise agree.
4) Upon expiration of the time your child may remain in the interim alternative educational setting, your child will return to his/her previous educational placement unless the School District requests an IHO to order another placement or you and the District agree to another placement.
5) If you challenge the interim alternative setting before an IHO, your child’s pendency placement remains the interim alternative educational setting until the duration of the interim alternative educational setting expires.

B. Suspensions of more than 10 days during the school year
1) If your child is suspended for more than 10 cumulative or consecutive days during a school year, you will be invited to participate in a meeting with the CSE and other qualified personnel. This meeting will be to:
a. Decide whether your child’s behavior which lead to the disciplinary action is related to his/her disability (also called a manifestation determination) and
b. Review or develop a behavioral intervention plan to address your child’s behavior.
2) If the CSE decides that the behavior is related to your child’s disability, your child will be returned to the same classes he/she attended prior to the disciplinary action. (Unless an interim alternative educational setting has been ordered in cases of drugs, weapons or by an order from an IHO.) Also, you and the School District may agree to a change in the program or placement.
3) If the CSE decides that the behavior is not related to your child’s disability, the school may discipline your child for that behavior as they would any other student in the school, but must continue to provide a FAPE and IEP services.

C. You have the right:
1) To be notified of the proposed disciplinary action and to have alternate instruction for your child in accordance with Section 3214 of Education Law.
2) To continue a FAPE and IEP services for your child during any period of discipline that exceeds ten (10) days.
3) To mediation or an impartial hearing if you disagree with the CSE’s manifestation determination or placement recommendation during the period of suspension.
4) To an expedited hearing to challenge a CSE decision that your child’s behavior was not a manifestation of his/her disability.

Form: Request for Due Process Proceeding