KANSAS STATE DEPARTMENT OF EDUCATION
PARENT RIGHTS IN SPECIAL EDUCATION
(Procedural Safeguards)
Revised 10/04/2005
Both you and the school share in your child’s education. If you or the school has issues or concerns about your child’s education, you and your child’s teacher should openly discuss the issues. We urge you to be actively involved in your child’s education.
As parents of children who are, or may be, exceptional, you have certain rights or procedural safeguards under federal and state laws. These rights are listed in this statement of Parent Rights in Special Education. This list of your rights must be given to you in your native language or in a communication method you can understand. If you would like a more detailed explanation of these rights, please contact the principal at your child's school, a school administrator, the special education director, or the Kansas State Department of Education (KSDE), 120 SE 10th Avenue, Topeka, KS 66612; phone (800) 203-9462. Copies of these rights in Braille, audiotape, and other languages are available from your school upon request. For more information about your rights, you may ask for a copy of the Guide to Special Education from Families Together, Inc. (785) 233-4777 or (800) 264-6343, or the Kansas State Department of Education (800) 203-9462.
OPPORTUNITY TO EXAMINE RECORDS
As the parent of a child with an exceptionality, you must be afforded an opportunity to--
· Inspect and review all education records with respect to:
· Identification (process to determine eligibility);
· Evaluation (nature and scope of assessment procedures);
· Placement (educational placement of your child); and
· FAPE (the provision of a free appropriate public education to your child).
INDEPENDENT EDUCATIONAL EVALUATION
You have the right to get an independent educational evaluation of your child if you disagree with the school’s evaluation. The school must provide you, upon request for an independent evaluation, information about where an independent educational evaluation may be obtained, and the criteria applicable for independent educational evaluations.
1. What is an independent evaluation?
An "independent educational evaluation" means an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for your child's education.
2. What does "public expense" mean?
"Public expense" means that the school either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to you.
3. What if you request an independent evaluation at public expense?
If you request an independent educational evaluation at public expense, the school must, without unnecessary delay, either:
· ask for a due process hearing to show that its evaluation was appropriate; or
· ensure that an independent educational evaluation is provided at public expense, unless the school demonstrates in a due process hearing that the evaluation which you obtained did not meet the criteria applicable for independent educational evaluations.
If the final decision of the due process hearing is that the school’s evaluation is appropriate, you still have the right to an independent educational evaluation, but it will not be paid for by the school.
If you request an independent educational evaluation, the school may ask for the reason(s) why you object to the school's evaluation. However, your explanation is not required and the school may not unreasonably delay either providing the independent educational evaluation at public expense or asking for a due process hearing to defend its evaluation.
4. What if you obtain an independent educational evaluation at your expense?
If you obtain an independent educational evaluation at private expense, the results of the evaluation
must be considered by the school, if it meets the applicable criteria, in any decision made with respect to the provision of a free appropriate public education to the child; and may be presented as evidence at a due process hearing regarding your child.
5. What if a hearing officer requests an independent educational evaluation?
If a hearing officer requests an independent educational evaluation as part of a hearing, the cost of the evaluation must be at public expense. 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 the school uses when it conducts an evaluation, to the extent the criteria are consistent with your right to an independent educational evaluation. Except for the criteria, a school may not impose conditions or timelines related to obtaining an independent educational evaluation at public expense.
PRIOR NOTICE BY THE SCHOOL
1. How will I be informed of proposed actions regarding my child's special education needs?
Your school will inform you of actions being proposed about your child by giving you written notice.
Written notice must be given before the school--
Proposes or Refuses to initiate or change the:
· Identification (process to determine eligibility);
· Evaluation (nature and scope of assessment procedures);
· Educational Placement (educational placement of your child including graduation); or
· FAPE (the provision of a free appropriate public education to your child).
2. What must be included in the content of the notice?
Written notice must include:
· A description of the action proposed or refused by the school;
· An explanation of why the school proposed or refused to take the action;
· A description of any other options the school considered and the reasons why those options were rejected;
· A description of each evaluation procedure, assessment, record, or report the school used as a basis for the action proposed or refused;
· A description of any other factors that are relevant to the school’s proposal or refusal;
· A statement that you have protection under these Parent Rights (procedural safeguards), and how you may get a copy of them; and
· Sources for you to contact to obtain assistance in understanding your rights.
If the school is proposing an action concerning your child, you must be given written notice about the proposed action a reasonable time before the action is taken. If the school refuses to take some action requested by you, you must be given written notice of the refusal within a reasonable time after the decision is made to deny your request. The school must take steps to be sure that you understand the information in any notice given to you.
3. Must the Written Notice be in understandable language?
Written notice must be in language understandable to the general public and in your native language or other principal mode of communication, unless it is clearly not feasible to do so. If this is not a written language, the school must take steps to ensure that the notice is translated orally or by other means into your native language or other mode of communication. If your language is not a written language, the school district must assure that you understand the notice, and it must document that you understand the notice.
4. When will the school take the action described in the notice?
After you have received the written notice, you have the opportunity to consider the actions proposed or refused by the school. You may agree or disagree with the school's proposal or refusal. You can allow the school to start the proposed action by giving consent in writing.
COPY OF PARENT RIGHTS (PROCEDURAL SAFEGUARDS)
A copy of the Parent Rights (procedural safeguards) must be given to you at least one time per year. However a copy of the Parent Rights notification must also be given to you--
· Upon initial referral or parental request for evaluation;
· Upon receipt of your first request for a due process hearing;
· Upon a disciplinary removal of your child from school that would constitute a change of placement; and
· Upon your request.
PARENT CONSENT
1. What does consent mean?
Consent means that--
· You have been fully informed of all information relevant to the activity for which your consent is sought, in your native language or other mode of communication;
· You understand and agree in writing to the carrying out of this activity for which your consent is sought, and the consent describes that activity and lists the records (if any) that will be released and to whom; and
· You understand that the granting of consent is voluntary on your part and may be revoked at any time. If you revoke consent, that revocation is not retroactive (i.e., it does not reverse an action that has occurred after the consent was given but before consent was revoked).
Consent is immediate. This means, after you have given your written consent, the school district must start the activity as soon as possible.
2. When must the school obtain my consent?
Your consent is required--
· Before your child is evaluated for the first time to determine whether your child is eligible for special education; [Consent for initial evaluation may not be construed as consent for initial placement.]
· Before your child's special education and related services start for the first time;
· Before your child is tested as part of a reevaluation. Informed parental consent need not be obtained for reevaluation if the school can demonstrate that it has taken reasonable measures to obtain your consent, and you have failed to respond. Reasonable measures include records of telephone calls made or attempted and the results of those calls; copies of correspondence sent to the parents and any responses received; and records of visits made to the parents' home and the results of those visits.
· According to state law, you must also give written consent when the school proposes to change the amount of a service by 25% or more, or to change your child’s placement for more than 25% of the school day. Your refusal to consent to these types of proposed changes will not result in a failure to provide your child with a free and appropriate public education.
Your consent is not required before--
· School officials review existing data as part of an evaluation or a reevaluation; or
· School officials administer a test or other assessment that is administered to all children unless, before administration of that test or assessment, consent is required of parents of all children.
3. Can I refuse consent?
Yes. If you refuse consent for initial evaluation or re-evaluation the school can ask you to go to mediation on the issue or, when authorized by law, it can start a due process hearing to decide the issue. The school may not use mediation or due process to override parent refusal to consent to the initial provision of special education and related services. If you refuse consent for a change in the amount of service by 25%, or to change placement for more than 25% of the school day, the public agency must initiate mediation and/or a due process hearing to ensure that your refusal to consent does not result in a failure to provide your child with a free, appropriate, public education.
4. Can I withdraw my consent after it has been given?
Yes. You have the right to change your mind. Giving consent is voluntary. You can revoke (withdraw) your consent at any time by writing the school or the special education director. Revoking consent does not negate an action that has occurred after the consent was given and before the consent was revoked. Again, if you revoke consent, the school can ask you to go to mediation on the issue or it can start a due process hearing to decide the issue.
5. What are the limitations on my consent?
The school must ensure that your refusal to consent to one service or activity does not deny you or your child from receiving other services, benefits, or activities provided by the school.
VOLUNTARY MEDIATION
1. What is mediation?
Mediation is a way to discuss and resolve disagreements between you and the school with the help of a trained, impartial third person.
2. When must mediation be available?
Each school must ensure that it has established procedures to allow parties to disputes to resolve the disputes through a mediation process that, at a minimum, must be available whenever a due process hearing is requested regarding a 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. In no case will a parent’s right to a due process hearing be delayed or denied if a parent refuses to participate in mediation, or does not attend a meeting to have the benefits of mediation explained to them.
3. How does mediation occur?
The school must ensure that the mediation process--
· Is voluntary on the part of the parties;
· Is not used to deny or delay your right to a due process hearing or to deny any other rights that you have under the Individuals with Disabilities Education Act (IDEA); and
· Is conducted by a qualified and impartial mediator who is trained in effective mediation techniques.
4. Will a meeting to encourage mediation be required?
· Yes, when parents elect not to mediate, they may be required to meet at a time and location convenient to the parents with a Families Together advocate or an appropriate alternate dispute resolution entity.
· At this meeting the Families Together advocate, or other alternate dispute resolution representative, will explain the benefits of mediation and encourage the parents to use the process.
5. What are the qualifications of an impartial mediator?
An individual who serves as a mediator may not be an employee of --
· Any school, even if different from your school; or
· State agency that receives a subgrant under the IDEA; or
· A state education agency that is providing direct services to a child who is the subject of the mediation process.
In addition, an impartial mediator--
· Must not have a personal or professional conflict of interest; and
· Is not an employee of a school or state agency solely because he or she is paid by the agency to serve as a mediator.
6. How are mediators appointed?
The Kansas State Department of Education (KSDE) maintains a list of individuals who are qualified mediators and knowledgeable in laws and regulations relating to the provision of special education and related services. Mediators are selected on a random basis from a list of qualified mediators. The Kansas State Department of Education bears the cost of the mediation process, including the cost of meetings. The mediation sessions are scheduled in a timely manner and held in a location that is convenient to the parties to the dispute.
7. What happens if agreement is reached?
An agreement reached by the parties to the dispute is set forth in a legally binding written mediation agreement that is enforceable in a state or federal court.
8. Are discussions confidential?
Yes. Discussions that occur during the mediation process must be confidential and may not be used as evidence in any subsequent due process hearings or civil proceedings. The parties to the mediation process are required to sign a confidentiality pledge prior to the commencement of the process.
9. How can I request mediation?
The school has procedures that require you to provide written notice that you are requesting mediation.
|
MEDIATION |
|
|
Contact Persons |
What Information Is Needed? |
|
Mark Ward, Mediation Consultant, or Carol LeDuc, Mediation Technical Assistant Kansas State Department of Education Student Support Services Team 120 SE 10th Avenue Topeka, KS 66612-1182 Phone (800) 203-9462 FAX (785) 296-6715 |
The name and address of the child's parents; The name and birth date of the child; The address of the residence of the child; The name of the school the child is attending; If a due process hearing has been requested also; A joint request with the school for mediation; and Signatures from both parties to the Confidentiality Pledge. |
IMPARTIAL DUE PROCESS HEARING
1. What is a due process hearing?
A due process hearing is a formal legal process through which any disagreement between you and the school is resolved by an impartial hearing officer.
2. What happens when a due process hearing is requested?
A parent or a school may initiate a hearing on any of the matters relating to the identification, evaluation or educational placement of a child or relating to the provision of services to the child (except that a school may not use mediation or a due process hearing to override a parent's refusal to consent to the initial provision of special education and related services). When you request a due process hearing--
· The school must inform you of the availability of mediation.
· The school must also inform you of any free or low-cost legal and other relevant services in the area, if you request the information.
3. Does the school conduct the due process hearing?
No. The due process hearing is arranged and paid for by the school district responsible for the education of your child but it is conducted by an impartial hearing officer.
4. How can I request a due process hearing?
The law requires that you or your attorney provide a written due process complaint notice to the school and to the Kansas State Department of Education (which must remain confidential) that you are requesting a due process hearing.
|
DUE PROCESS HEARING |
|
|
Contact Person/Agency |
What Information Is Needed? |
|
The Special Education Director if your child is in a public school or The Secretary of Social and Rehabilitation Services (SRS) if your child is in a state institution or The Commissioner of the Juvenile Justice Authority if your child is in a state juvenile correctional facility or The Secretary of the Department of Corrections if your child is in a state correctional facility |
The name and address of the child's parents; The name and age of the child; The address of the residence of the child; The name of the school the child is attending; A description of the problem and a statement of the facts relating to the problem; A proposal for resolution of the problem; and An indication that a copy of the request was sent to the school and to the Kansas State Department of Education. |
If your due process complaint notice does not include all of the information listed above, the school may notify the hearing officer and you that it believes your notice is insufficient and ask the hearing officer to order you to provide all of the required information.
5. What are the qualifications of an impartial due process hearing officer?
A hearing officer
· May not be an employee of the state educational agency or the school that is involved in the education or care of the child (a hearing officer is not considered an employee of an educational agency or school solely because he or she is paid by the agency or school to serve as a hearing officer);
· May not be any person having a personal or professional interest that would conflict with his or her objectivity in the hearing;
· Must possess knowledge of, and the ability to understand the provisions of federal and state special education laws and regulations and related legal interpretations;
· Must possess the knowledge and ability to conduct hearings in accordance with appropriate, standard legal practice; and
· Must possess the knowledge and ability to render and write decisions in accordance with appropriate standard legal practice.
The school must--
· Keep a list of persons who serve as hearing officers.
· The list must include a statement of the qualifications of each hearing officer.
6. What are my due process hearing rights?
a. You and the school district have the right to:
· Be accompanied and advised by an attorney and by individuals with special knowledge or training with respect to the problems of children with exceptionalities;
· Present evidence and confront, cross-examine, and compel the attendance of witnesses;
· Prohibit the introduction of any evidence at the hearing that has not been disclosed to you at least 5 days before the hearing;
· Obtain a written, or, at your option, electronic, verbatim record of the hearing;
· Obtain a written, or, at your option, electronic findings of fact and decision; and
· Amend your complaint, if approved by the hearing officer or consented to by the school district.
b. Additional Disclosure of Information--
· At least 5 business days prior to a hearing, each party must disclose to the other party all evaluations completed by the date and recommendations based on the offering party's evaluations that the party intends to use at the hearing.
· A hearing officer may bar any party that fails to comply from introducing the evaluation or recommendation at the hearing without the consent of the other party.
c. Parent Rights at Hearings
Parents involved in hearings must be given the right to--
· Have the child who is the subject of the hearing present;
· Open the hearing to the public; and
· Receive a record of the hearing and the findings of fact and decision, at no cost to them, no later than 45 calendar days after the request for the hearing, unless an extension of time is allowed by the hearing officer.
d. Finality of Local Level Hearing Decision
A decision made in a local due process hearing is final, unless either party involved in the hearing decides to appeal the decision.
e. Appeal of Decision
Any party aggrieved by the findings and decision in the local due process hearing may appeal to the Kansas State Board of Education. The Board shall provide for an impartial review of the hearing. The official conducting the review shall:
· Examine the entire hearing record;
· Ensure that the procedures at the hearing were consistent with the requirements of due process;
· Seek additional evidence if necessary (If a hearing is held to receive additional evidence, the rights mentioned in subsections "a", "b", and "c" of Question #6, "What are my due process hearing rights?" apply.)
· Afford the parties an opportunity for oral or written argument, or both, at the discretion of the reviewing official;
· Make an independent decision on completion of the review; and
· Give a copy of the written, or, at the option of the parents, electronic, findings of fact and decision to the parties.
f. Finality of State Level Hearing Decision
The decision made by the state reviewing official is final, unless a party files a court action to have the decision changed.
7. What are the timelines for a due process hearing?
a. Local Level Hearings
If you wish to initiate a due process hearing, you must submit your notice of due process hearing to the school district within 2 years of the date that you knew or should have known about the alleged action that forms the basis of your complaint. However, the 2 year timeline may be extended if either of the following has occurred:
· The school made specific misrepresentations that it had resolved the problem forming the basis of your complaint; or
· The school withheld information from you that it was required, by law, to provide to you.
If the school has initiated the due process hearing,
· You have 10 days from the date you receive the notice of due process to send a response to the school that specifically addresses the issues raised in the notice.
· If you believe that the school district’s notice of due process is legally insufficient, you have 15 days from the date you receive the notice to notify the hearing officer that you are contesting the sufficiency of the school’s notice of due process.
If you have initiated the due process hearing,
· the school district must, within 15 days of receiving your notice of due process, convene a meeting with you and with other relevant members of the IEP team who have specific knowledge of the facts you identified in your complaint to discuss your complaint and the facts related to your complaint to determine whether the issues in your complaint can be resolved without a hearing.
· This meeting must include a representative of the school district who has decision making authority on behalf of the school district.
· The school district may not bring an attorney to this meeting unless you are accompanied by an attorney.
· This resolution meeting is required by law unless both you and the school district agree, in writing, to waive the meeting or agree to use the special education mediation process.
You may amend your due process complaint notice
· if the school district consents to the amendment in writing and is given the opportunity to resolve the amended notice at a meeting with you before a hearing occurs, or
· you may also amend your complaint notice if the hearing officer grants permission for your amendment not later than 5 days before the hearing occurs.
· The same rules for amendment of a due process complaint notice apply to the school district.
· If either party successfully amends their complaint, the timelines stated above start over.
If you are going to use an evaluation, or recommendations based on an evaluation, as evidence at the hearing,
· you must disclose the evaluation or evaluations and the recommendations you intend to use to the school district not less than 5 business days before the hearing.
· Failure to timely disclose this information could result in a hearing officer ruling that the evaluations and recommendations may not be used at the hearing without the consent of the school district.
At the local level, not later than 45 calendar days after the receipt of a request for a hearing--
· A final decision must be reached in the hearing; and
· A copy of the decision must be provided to each of the parties.
A hearing officer may grant specific extensions of time beyond the 45-day period if requested by either party. Each hearing must be conducted at a time and place that is reasonably convenient to the parents and child involved.
b. State Level Reviews
The Kansas State Board of Education must ensure that not later than 20 calendar days after the receipt of a request for a review--
· A final decision is reached in the review; and
· A copy of the decision is mailed to each of the parties.
A reviewing officer may grant specific extensions of time beyond the 20-day period at the request of either party. Each review involving a hearing must be conducted at a time and place that is reasonably convenient to the parents and child involved.
8. May the school district or I file a court action?
a. Court Action
Any party who does not agree with the decision of the state review officer has the right to file a court action. The action may be filed in state or federal court. Any action must be filed within 30 days of the date of the delivery of the decision to you. You will have to hire an attorney if you decide to go to court.
In any civil action, the court--
· Shall receive the records of the administrative proceedings;
· Shall hear additional evidence at the request of a party; and
· Basing its decision on the preponderance of the evidence, shall grant the relief that the court determines to be appropriate.
b. Jurisdiction of District Courts
Federal district courts have jurisdiction of actions brought under the IDEA. The Kansas district courts also have jurisdiction under the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 through 77-627.
9. How can I recover attorneys' fees?
In any action or proceeding under the IDEA, the court may award reasonable attorneys’ fees to a parent who is a prevailing party.
10. May a court award attorneys' fees to you?
Yes. A court may award reasonable attorneys' fees consistent with the following--
· Fees awarded must be based on rates prevailing in the community in which the due process hearing was conducted for the kind and quality of services furnished.
· No bonus or multiplier may be used in calculating the attorneys' fees.
· Attorney’s fees cannot be awarded for actions relating to any due process resolution session or for any meeting of the IEP team unless the meeting is convened as a result of an administrative proceeding or judicial action, or at the discretion of the State for a mediation that is conducted prior to filing of a request for a due process hearing.
11. May a court choose not to award attorneys' fees?
Yes. Attorneys' fees may not be awarded and related costs may not be reimbursed for services performed subsequent to the time of a written offer of settlement to you if--
· The offer is within the time allowed by the Federal Rules of Civil Procedure or, in the case of an administrative hearing, any time more than 10 calendar days before the hearing;
· The offer is not accepted within 10 calendar days; and
· The court finds that the decision you finally receive is not more favorable to you than the offer of settlement. However, an award of attorneys’ fees may be made to you if you win and you are justified in rejecting a settlement offer.
12. May a court reduce the amount of attorneys' fees awarded?
Yes. A court may reduce the amount of attorneys’ fees awarded when the court finds:
· During the action or proceeding, you unreasonably lengthened the final resolution of the case;
· The amount of the attorneys’ fees is unreasonable compared to the going rate in the community for similar services by attorneys of reasonably comparable skill, experience, and reputation;
· The time and legal services were excessive considering the nature of the case; or
· Your attorney did not give the school the appropriate notice about the due process hearing.
A court may not reduce the allowance for attorneys’ fees if the court finds that the state education agency or school unreasonably delayed the final resolution of the case, or, found there was a violation in the implementation of IDEA.
13. May a court order you or your attorney to pay the attorney fees of the school?
Yes. A court may order reasonable attorneys’ fees to a prevailing party, which is a school district or a state education agency, to be paid by a parent’s attorney if the court finds that the parent’s complaint or subsequent cause of action is frivolous, unreasonable, or without foundation, or if the parent’s attorney continues to litigate after the litigation clearly becomes frivolous, unreasonable or without foundation. In addition, a court may order reasonable attorneys’ fees to a prevailing party which is a school or a state educational agency to be paid by a parent or a parent’s attorney if the court finds that the parent’s complaint or subsequent cause of action was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.
14. What happens to my child during due process or court proceedings?
Except when your child has violated a school rule or has done something that could have hurt someone, during any due process or court proceedings--
· Unless you and the school agree otherwise, your child stays in the current educational placement;
· If the complaint involves an application for initial admission to school, your child, with your consent, must be placed in public school until the proceedings are finished.
· If a hearing or review officer agrees with you that a change in placement is appropriate, the hearing or review officer may order a different placement for your child. When that occurs, the placement will be treated as an agreement between the State education agency or the local education agency and the parents.
CHANGE OF PLACEMENT FOR DISCIPLINARY REMOVALS FOR CHILDREN WITH DISABILITIES
State and federal laws have special provisions that control what happens if your child violates a school rule or does something that caused, or could easily have caused, an injury to him/herself or someone else. These special provisions say what action the school can take and what your rights are as the child’s parent. The possible actions by the school and your rights in these matters are explained below.
1. What actions constitute a change of placement for disciplinary purposes?
For disciplinary purposes, removals of your child from his or her current educational placement, which constitute a change of placement are:
· The removal is for more than 10 consecutive school days;
· Your child is subjected to a series of removals that constitute a pattern because they cumulate to more than 10 school days in a school year, and because of factors such as the length of each removal, the total amount of time your child is removed, and the proximity of the removals to one another; or
· Your child is to be placed in an interim alternative educational setting.
2. When can school officials take action for a child’s misbehavior?
Children with disabilities are subject to the same rules of conduct that apply to other children. School officials can take action if a child with a disability does anything listed below:
· Violates any school rule;
· Brings, or gets possession of, a weapon at school or at a school activity;
· Brings, or gets possession of, an illegal drug at school or at a school activity; or
· Does something that caused serious bodily injury to another person, or does something that could easily have caused an injury to the child or to someone else.
3. What action can school officials take for children with disabilities?
School officials can take the following actions--
· If your child violates a school rule, but the misbehavior does not involve a weapon, illegal drugs or dangerous behavior, school officials may move your child to a different educational setting or they can suspend your child from school for up to 10 school days. They can do this each time your child violates a rule. If the total number of suspensions mount up, and they are close together, and show a pattern of removing your child from school, no further suspensions from school can be made without your involvement.
· If your child carries or possesses a weapon to or at school or to or at a school function under the jurisdiction of a State or a local educational agency; or knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or a school function under the jurisdiction of a State or local educational agency, or inflicts serious bodily injury upon another person while at a school or a school function under the jurisdiction of a State or local educational agency, school personnel may order a change in placement of your child to an appropriate interim alternative educational setting for the same amount of time that a child without a disability would be subject to discipline, but for not more than 45 school days.
· If your child violates school rules over and over, or does something that is serious, like damaging the school building, school officials can suspend your child from school for up to 10 school days and start action to have your child removed from school for up to a whole school year.
· If your child does something that is dangerous (that is, something that caused, or could easily have caused, injury to him/herself or to someone else), school officials can suspend your child from school for up to 10 school days. They, also, can start action to either have your child removed from school for up to a whole school year, or to have a due process hearing officer determine a different place for your child to go to school for up to 45 school days.
4. What steps must be followed to change my child’s placement for removals of 10 school days or less?
If your child has violated the school's discipline code, the school may change your child's placement to an interim alternative setting, another setting or suspension for a period of time not to exceed 10 school days, to the same extent as a child without a disability.
5. Must educational services be provided if my child has been removed from his or her current placement for 10 school days or less?
No. The school would not be required to provide services to your child during removal from his or her current placement for not more than 10 consecutive school days in the same school year for separate incidents of misconduct.
6. What steps must be followed to change my child’s placement for removals of more than 10 school days?
If school officials want to suspend your child from school for more than 10 school days in a row, or to have your child’s educational setting changed for up to 45 school days for weapon or drug possession, for infliction of serious bodily injury to another or for other dangerous behavior, school officials must notify you of what they intend to do. The law also states--
· If the behavior was a manifestation of your child’s disability, and your child does not have a behavior intervention plan, the IEP team must conduct a functional behavioral assessment and implement a behavioral intervention plan. If your child already has a behavioral intervention plan, the IEP team must meet to review the plan and its implementation, and, modify the plan and its implementation, as necessary, to address the behavior.
· If the behavior was not a manifestation of your child’s disability, the IEP team must determine whether it would be appropriate for your child to receive a functional behavioral assessment, behavioral intervention services and modifications, that are designed to address the behavior violation so that it does not recur.
7. Must educational services be provided if my child has been removed from his or her current placement for 10 days or more in a school year?
Yes. After your child has been removed from his or her current placement for more than 10 school days in the same school year, during any subsequent days of removal, the school must provide services to the extent necessary to enable your child to continue to participate in the general education curriculum and to progress toward meeting the goals set out in his or her IEP.
8. What is a "controlled substance"?
A "controlled substance" means a drug or other substance identified under schedules I, II, III, IV or V in section 202(c) of the Controlled Substances Act (21U.S.C. §12(c)). This is a federal law.
9. What is an "illegal drug"?
An "illegal drug" means a controlled substance; but--
· Does not include a substance that is legally possessed or used under the supervision of a licensed health-care professional or that is legally possessed or used under any other authority under the Controlled Substances Act or under any other provisions of federal law.
10. What is a "weapon"?
A "weapon" has the meaning given the term "dangerous weapon" under paragraph (2) of the first subsection (g) of section 930 of Title 18, United States Code. This federal law defines a weapon as "any weapon, device, instrument, material or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that this term does not include a pocket knife with a blade of less than 2.5 inches in length."
11. What is “serious bodily injury”?
“Serious bodily injury” means bodily injury which involves:
· a substantial risk of death;
· extreme physical pain;
· protracted and obvious disfigurement; or
· protracted loss or impairment of the function of a bodily member, organ, or mental faculty.
12. What action can hearing officers take in regard to dangerous behavior?
Hearing officers can take the following actions--
· An IDEA hearing officer may order a change in placement of your child to an appropriate interim alternative educational setting for not more than 45 school days, if the hearing officer, in an expedited hearing--
· Determines the school has demonstrated that maintaining the current placement of your child is substantially likely to result in injury to your child or to others; and
· Determines that the interim alternative educational setting that is proposed by school personnel who have consulted with your child's special education teacher meets the requirements below.
13. Who determines the interim alternative educational setting?
The interim alternative educational setting is determined by the IEP team, if a weapon, drugs or serious bodily injury are involved. It is proposed by school officials, if dangerous behavior is present. Any interim alternative educational setting in which your child is placed must--
· Be selected so as to enable your child to continue to participate in the general education curriculum, although in another setting, and to continue to receive those services and modifications, including those described in your child's current IEP, that will enable your child to progress toward meeting the goals set out in that IEP; and
· receive, as appropriate, a functional behavioral assessment, behavioral intervention services and modifications, that are designed to address the behavior violation so that it does not recur.
14. What is a "manifestation determination review"?
A "manifestation determination review" means a review of the relationship between your child's disability and his or her behavior subject to the disciplinary action.
15. When is a manifestation determination review conducted?
If an action is contemplated involving a removal that constitutes a change of placement for your child--
· Not later than the date on which the decision to take that action is made, you must be notified of that decision and provided with the Parent Rights (procedural safeguards) notice; and
· Immediately, if possible, but in no case later than 10 school days after the date on which the decision to take that action is made, a review must be conducted of the relationship between your child's disability and his or her behavior subject to the disciplinary action -- the manifestation determination review.
16. Who carries out the manifestation determination review?
The manifestation determination review must be conducted by a group of persons that includes school personnel, you and other relevant members of the IEP team. In carrying out the manifestation determination review, the group may determine that the behavior of your child was a manifestation of his or her disability only if it:
· Reviews all relevant information in your child’s file, including your child’s IEP, any teacher observations, and any relevant information provided by you, and;
· Then determines that either--
· The conduct in question was caused by, or had a direct and substantial relationship to, your child’s disability; or
· The conduct in question was the direct result of the local educational agency’s failure to implement the IEP.
If the group determines that either of these standards were met, the behavior must be considered a manifestation of your child's disability.
17. What happens if the IEP team determines that the behavior was not a manifestation of my child's disability?
If the result of the manifestation determination review is a determination that your child's behavior was not a manifestation of his or her disability--
· The relevant disciplinary procedures applicable to children without disabilities may be applied to your child with a disability in the same manner in which they are applied to children without disabilities, as long as your child continues to be provided services, as determined by your child's IEP team, to the extent necessary to enable your child to appropriately continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in his/her IEP.
· If determined to be appropriate by the IEP team, your child will receive a functional behavioral assessment and behavioral intervention services and modifications that are designed to address the behavior violation so that it does not recur.
18. What is my child's placement if I request due process proceedings?
If you request a hearing or an appeal to challenge the manifestation determination decision or the interim alternative educational setting--
· School officials may have your child remain in the interim alternative educational setting for the designated period of the disciplinary removal, or until the hearing officer issues a decision, whichever occurs first (unless you and the school district agree otherwise). Thereafter, your child will return to the previously agreed upon educational placement, unless a hearing officer orders another placement or you and the school agree to another placement.
19. What if I disagree with the outcome of my child's manifestation determination review or disciplinary placement?
If you disagree with the IEP team's determination that your child's behavior was not a manifestation of his or her disability or any decision regarding your child's disciplinary placement, you may request a due process hearing. You must file your request with your local board of education. The school then arranges for an expedited due process hearing by immediately contacting the person on the chart that follows –
|
EXPEDITED DUE PROCESS HEARING |
|
|
Contact Person |
What Information Is Needed? |
|
Rod Bieker, General Counsel Kansas State Department of Education 120 SE 10th Avenue Topeka, KS 66612-1182 (785) 296-3204 or (800) 203-9462 |
Your name and address; Your attorney's name and address, if you have one; The name of the child; The address of the residence of the child; The name of the school the child is attending; A description of the nature of the problem relating to the manifestation determination and/or proposed placement; the facts related to the problem: and A proposed resolution of the problem to the extent known and available to you at the time.
|
20. How is an expedited hearing conducted?
Expedited due process hearings must be conducted as follows--
· Each of the parties to an expedited due process hearing has the rights afforded to them under the IDEA except that the parties have the right to prohibit the presentation of any evidence at the expedited hearing that has not been disclosed to the opposite party at least two business days before the hearing.
· Each hearing officer must conduct the expedited due process hearing within 20 school days of the date the hearing is requested and provide the decision in the matter to the parties within 10 school days after the hearing;
· A hearing officer in an expedited due process hearing cannot grant any extensions; and
· Either party to an expedited due process hearing may appeal the decision, and the appeal procedures are the same as those for any other due process hearing.
· Any hearing officer for an expedited hearing must meet the same qualifications as for those in all other due process proceedings.
21. Can a hearing officer change my child's placement if he/she is a danger to self or others?
Yes. If the school demonstrates that there is a danger that your child or other students are substantially likely to be injured if your child stays in his or her current placement, the school may request an expedited hearing to obtain an order from a hearing officer to change your child's educational placement to an interim alternative educational placement for up to 45 school days. School officials propose the alternative setting, but the hearing officer finally decides the interim alternative educational setting. If, at the end of 45 school days, the school determines there continues to be a danger that your child or other students may be injured if your child is returned to his or her previous placement, the process may be repeated.