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DINF Web Posted on December 15, 1997


Individuals with Disabilities Education Act Amendments of 1995

Appendix A:

Proposal to Improve Notice Requirements


Under current law, parents must receive prior written notice whenever a school district proposes or refuses to initiate or change the identification, evaluation, educational placement or the provision of a free appropriate public education to a child with disabilities. This would also be the case under our proposal. However, we propose to simplify the contents of that notice, while ensuring that parents receive more specific information about the procedural safeguards of Part B when they need that information and whenever they ask for it.

Under our proposal, parents would get a basic notice which includes the same information as is currently required, with two exceptions. First, the notice would inform parents that detailed information about access to educational records will be provided to parents whenever they ask for it, rather than including pages of details on this topic in every notice. Second, the basic notice would summarize procedural safeguards relating to due process hearings, state-level reviews (if applicable in the state), civil actions and attorneys' fees, and inform parents that a full explanation of these procedural safeguards will be provided whenever parents request it and whenever a hearing is initiated.

Below are samples of both the basic notice and the more specific notice on procedural safeguards that we envision under our proposal. No state or school district would be required to use these notices; but they are examples of what a clear and useful notice might look like under our proposal.[1]


1It should be noted that the sample notices below reflect these proposals for a new notice system for a state with a state-level hearing process using the procedural safeguards of current law. (This means, for example, that mediation, which would be covered under our proposal, is not mentioned.)

Your Rights as a Parent of a Child with a Disability

(One Tier)

Your Right to Receive Written Notice

Your school district must provide you with prior written notice each time it proposes or refuses to initiate or change the identification, evaluation, or educational placement of your child or the provision of a free appropriate public education to the child.

The notice must include:

  1. A full explanation of all of the procedural safeguards available to you.

  2. A description of the action proposed or refused by the district, an explanation of why the agency proposes or refuses to take the action, and a description of any options the district considered and the reasons why those options were rejected.

  3. A description of each evaluation procedure, test, record, or report the district uses as a basis for the proposal or refusal; and

  4. A description of any other factors which are relevant to the district's proposal or refusal.

The notice must be written in language that the general public can understand, and provided in your native language or other mode of communication, unless it is clearly not feasible to do so.

Your Right to Consent

Your district must obtain your consent before conducting a pre-placement evaluation or initial placement of your child in a program providing special education and related services. Except for pre-placement evaluation and initial placement, consent may not be required as a condition of any benefit to you or your child. Your State may require parental consent for other services and activities, if it establishes and implements effective procedures to ensure that a parent's refusal to consent does not result in a failure to provide the child with a free appropriate public education.

When your district obtains your consent: you must be fully informed of all information relevant to the activity for which consent is sought, in your native language or other mode of communication; you must understand and agree in writing to the carrying out of the activity for which your consent is sought, and the consent must describe that activity and list the records (if any) that will be released and to whom; and you must understand that the granting of consent is voluntary on your part and may be revoked at any time.

Your Right to Obtain an Independent Educational Evaluation

As explained here, you have the right to obtain an independent educational evaluation of your child.

You have the right to an independent educational evaluation, conducted by a qualified examiner who is not employed by your district, at public expense, if you disagree with an evaluation obtained by your district. However, your district may initiate a due process hearing to show that its evaluation is appropriate. If the final decision is that the evaluation is appropriate, you still have the right to an independent educational evaluation, but not at public expense. If the parent obtains an independent educational evaluation at private expense, the results of the evaluation must be considered by your district in any decision made with respect to the provision of a free appropriate public education to your child, and may be presented as evidence at a due process hearing regarding your child.

If a hearing officer requests an independent educational evaluation as part of a hearing, the cost of the evaluation must be at public expense.

Your district must provide you, on request, information about where an independent educational evaluation may be obtained.

Whenever an independent 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.

INITIATING A HEARING

You or your district may initiate a hearing regarding the district's proposal or refusal to initiate or change the identification, evaluation, or educational placement of your child or the provision of a free appropriate public education to your child. The State educational agency is responsible for conducting the hearing.

The Hearing Officer

A hearing may not be conducted by an employee of a public agency involved in the education or care of your child, or by any person having a personal or professional interest that would conflict with his or her objectivity in the hearing. (A person who otherwise qualifies to conduct a hearing is not an employee of an agency solely because he or she is paid by the agency to serve as a hearing officer.) The State educational agency must keep a list of persons who serve as hearing officers, including a statement of the qualifications of each of those persons.

Hearing Rights

You and the district have the right to:

  1. Be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities. Your district must inform you of any free or low-cost legal and other relevant services available in the area if you request the information or you or the district initiate a due process hearing.

  2. Present evidence and confront, cross-examine, and compel the attendance of witnesses.

  3. Prohibit the introduction of any evidence at the hearing that has not been disclosed to that party at least five days before the hearing.

  4. Obtain a written or electronic verbatim record of the hearing.

  5. Obtain written findings of fact and decisions.

You have the right to have your child present, and to open the hearing to the public. The hearing must be conducted at a time and place which is reasonably convenient to you and your child.

The Hearing Decision

A final hearing decision must be reached and mailed to the district and you within 45 days after the receipt of a request for a hearing, unless the hearing officer grants a specific extension at the request of either party. The decision in a due process hearing is final, unless the district or you appeal the decision by filing a civil action in State or Federal court. You must be given a full explanation of your specific rights in appeals to court whenever the district or you initiate a hearing or upon your request.

Your Child's Program and Placement While You are Waiting for the Hearing and Court Decisions

During the pendency of any administrative or judicial proceeding regarding a complaint, unless you and your district agree otherwise, your child must remain in his or her present educational placement.

If the hearing involves an application for initial admission to public school, your child, with your consent, must be placed in the public school program until the completion of all the proceedings.

If your child brings a firearm to school, your child may be placed in an interim alternative educational setting, in accordance with State law, for up to 45 calendar days. If you initiate a due process hearing during this time, your child remains in this interim placement during the hearing and any subsequent authorized administrative or court proceeding, unless you and the district can agree on an interim placement for your child. However, your child's placement cannot be changed until the IEP team is convened and determines the interim placement for your child. The participants on the team making this interim placement determination must include you, your child's teacher, an agency representative qualified to provide or supervise the provision of special education, and your child, if determined appropriate.

Attorneys' Fees

The court may award reasonable attorneys' fees to you if you are the prevailing party in the due process proceedings.

Access to Records

Your district must permit you to inspect and review any education records relating to your child's educational identification, evaluation, program or placement. The district must comply with your request without unnecessary delay and before any meeting regarding an individualized education program or hearing relating to the identification, evaluation, or placement of your child, and in no case more than 45 days after the request has been made. You have additional specific rights regarding access to your child's educational records and the accuracy of those records; your school district must provide you with a written explanation of those rights upon your request.

Your Due Process Rights as the Parent of a Child with a Disability

(One Tier)

INITIATING A HEARING

You or your district may initiate a hearing regarding the district's proposal or refusal to initiate or change the identification, evaluation, or educational placement of your child or the provision of a free appropriate public education to your child. The State educational agency is responsible for conducting the hearing.

The Hearing Officer

A hearing may not be conducted by an employee of a public agency involved in the education or care of your child, or by any person having a personal or professional interest which would conflict with his or her objectivity in the hearing. (A person who otherwise qualifies to conduct a hearing is not an employee of an agency solely because he or she is paid by the agency to serve as a hearing officer.)

The State educational agency must keep a list of the persons who serve as hearing officers. The list must include a statement of the qualifications of each of those persons.

Hearing Rights

You and the district have the right to:

  1. Be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities. Your district must inform you of any free or low-cost legal and other relevant services available in the area if you request the information or you or the district initiate a due process hearing.

  2. Present evidence and confront, cross-examine, and compel the attendance of witnesses.

  3. Prohibit the introduction of any evidence at the hearing that has not been disclosed to you or the district at least five days before the hearing.

  4. Obtain a written or electronic verbatim record of the hearing.

  5. Obtain written findings of fact and decisions.

You have the right to have your child present, and to open the hearing to the public. The hearing must be conducted at a time and place which is reasonably convenient to you and your child.

The Hearing Decision

A final hearing decision must be mailed to the district and to you within 45 days after the receipt of a request for a hearing, unless the hearing officer grants a specific extension at the request of either party.

The hearing officer's decision is final, unless the district or you appeals the decision by filing a civil action in State or Federal court.

Civil Action

The district and you each have the right to appeal the review decision by filing a civil action in State or Federal Court.

Your Child's Program and Placement While You are Waiting for the Hearing and Court Decisions

During the pendency of the hearing or civil action, unless you and your district agree otherwise, your child must remain in his or her present educational placement.

If the hearing involves an application for initial admission to public school, your child, with your consent, must be placed in the public school program until the completion of all of the proceedings.

If your child brings a firearm to school, your child may be placed in an interim alternative educational setting, in accordance with State law, for up to 45 calendar days. If you initiate a due process hearing during this time, your child remains in this interim placement during the hearing and any subsequent authorized administrative or court proceeding, unless you and the district can agree on an interim placement for your child. However, your child's placement cannot be changed until the IEP team is convened and determines the interim placement for your child. The participants on the team making this interim placement determination must include you, your child's teacher, an agency representative qualified to provide or supervise the provision of special education, and your child, if determined appropriate.

Attorneys' Fees

The court may award reasonable attorneys' fees to you if you are the prevailing party in the due process proceeding.



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