GUIDANCE ON REQUIRED CONTENT OF FORMS

UNDER PART B OF THE IDEA

 

Part B of the Individuals with Disabilities Education Act (IDEA) sets forth requirements for States and local educational agencies (school districts) in providing special education and related services to children with disabilities, ages 3 through 21. Part B emphasizes the importance of including parents in decisions regarding the education of their children. Before a school district proposes or refuses to take action regarding the educational program of a child with a disability, the district must provide a “prior written notice” to the parents. The district must also, at specified times, provide parents with a “procedural safeguards notice” which explains their rights under Part B of the IDEA. Further, parents and school personnel must work together to develop an individualized education program (IEP) for each child which sets forth the services that the child will receive to meet his or her unique needs.

 

In the Individuals with Disabilities Education Improvement Act of 2004 (the 2004 reauthorization of the IDEA), the Congress required the U.S. Department of Education to publish and widely disseminate “model forms,” that are “consistent with the requirements of [Part B of the IDEA]” and “sufficient to meet those requirements.” Specifically, the reauthorization required the Department to develop forms for the:

(1) IEP; (2) notice of procedural safeguards; and (3) prior written notice.

 

Attached to this introduction are the three model forms that the Department has, consistent with the instructions from the Congress, developed to assist States and school districts in understanding the content that Part B ensures for each of these three types of forms. The content of each of these forms is based upon the requirements set forth in the final Part B regulations including the regulations published in the Federal Register on December 1, 2008 (73 FR 73006), that took effect December 31, 2008. Although States must ensure that school districts include all of the content that Part B requires for each of the documents that they provide to parents, States are not required to use the format or specific language reflected in these forms. States may choose to add additional content to their forms, so long as any additional content is not inconsistent with Part B requirements.

 

These three forms closely track the language of the final regulations, as interpreted in the published analysis of comments accompanying the regulations published in the Federal Register August 14, 2006 (71 FR 46753) and the supplemental regulations published on December 1, 2008 (73 FR 73006). However, where the final regulations allow for variations based upon State law or local policy, the forms provide alternative language or instructions to insert the applicable standard. Where appropriate, the Secretary has, in order to make the forms more user-friendly:

 

Used “school district” or “district” in place of “public agency” and “local educational agency.”

 

Used “you” in place of “parent” (or the student, where parental rights have been transferred from the parent to the student at the age of majority).

 

 

Part B PROCEDURAL SAFEGUARDS NOTICE        Revised June 2009

The Individuals with Disabilities Education Act (IDEA), the Federal law concerning the education of students with disabilities, requires schools to provide you, the parents of a child with a disability, with a notice containing a full explanation of the procedural safeguards available under IDEA and U.S. Department of Education regulations. A copy of this notice must be given to you only one time a school year, except that a copy must also be given to you: (1) upon initial referral or your request for evaluation; (2) upon receipt of your first State complaint under 34 CFR §§300.151 through 300.153 and upon receipt of your first due process complaint under §300.507 in a school year; (3) when a decision is made to take a disciplinary action against your child that constitutes a change of placement; and (4) upon your request. [34 CFR §300.504(a)]

 

This procedural safeguards notice must include a full explanation of all of the procedural safeguards available under §300.148 (unilateral placement of a child in a private school at public expense), §§300.151 through 300.153 (State complaint procedures), §300.300 (parental consent), §§300.502 and 300.503 (IEP and prior written notice), §§300.505 through 300.518 (other procedural safeguards, e.g., mediation, due process complaints, resolution process, and impartial due process hearing), §§300.530 through 300.536 (procedural safeguards in Subpart E of the Part B regulations), and §§300.610 through 300.625 (confidentiality of information provisions in Subpart F). This model form provides a format that States and/or school districts may choose to use to provide information about procedural safeguards to parents.

 

 

U.S. Department of Education        

Model Form: Procedural Safeguards Notice

Office of Special Education and Rehabilitative Services, Office of Special Education Programs

 

 

Table of Contents

General Information

Prior Written Notice

Native Language

Electronic Mail

Parental Consent—Definition

Parental Consent

Independent Educational Evaluations

 

Confidentiality of Information

Definitions

Personally Identifiable

Notice to Parents

Access Rights

Record of Access

Records on More Than One Child

List of Types and Locations of Information

Fees

Amendment of Records at Parent’s Request

Opportunity for a Hearing

Hearing Procedures

Result of Hearing

Consent For Disclosure of Personally Identifiable Information

Safeguards

Destruction of Information

 

State Complaint Procedures

Differences Between the Procedures for Due Process Complaints and

Hearings and for State Complaints

Adoption of State Complaint Procedures

Minimum State Complaint Procedures

Filing a State Complaint

 

Due Process Complaint Procedures

Filing a Due Process Complaint

Due Process Complaint

Model Forms

Mediation

Resolution Process

 

Hearings on Due Process Complaints

Impartial Due Process Hearing

Hearing Rights

Hearing Decisions

 

Appeals

Finality of Decision; Appeal; Impartial Review

Timelines and Convenience of Hearings and Reviews

Civil Actions, Including the Time Period in Which to File Those Actions

The Child’s Placement While the Due Process Complaint and Hearing are Pending

Attorneys’ Fees

 

Procedures When Disciplining Children with Disabilities

Authority of School Personnel

Change of Placement Because of Disciplinary Removals

Determination of Setting

Appeal

Placement During Appeals

Protections for Children Not Yet Eligible for Special Education and

Related Services

Referral to and Action by Law Enforcement and Judicial Authorities

 

Requirements for Unilateral Placement by Parents of Children in Private

Schools at Public Expense

General

 

{One-Tier State: when requesting a due process hearing, request is filed directly with the State and if appealed by either party, are appealed to a Court of competent jurisdiction in the State or to a Federal Court.  In Two-Tier States, the request if filed with the Local Education Agency (LEA) and the initial hearing is conducted at the LEA level. The first appeal level is then the State and then on to the court.}

 

 

PRIOR WRITTEN NOTICE

34 CFR §300.503

 

General Information - Notice

 

Your school district must give you written notice (provide you certain information in writing), within a reasonable amount of time before it:

 

Proposes to initiate or to change the identification, evaluation, or educational placement of your child, or the provision of a free appropriate public education (FAPE) to your child; or

 

Refuses to initiate or to change the identification, evaluation, or educational placement of your child, or the provision of FAPE to your child.

 

Content of notice

 

The written notice must:

 

Describe the action that your school district proposes or refuses to take;

 

Explain why your school district is proposing or refusing to take the action;

 

Describe each evaluation procedure, assessment, record, or report your school district used in deciding to propose or refuse the action;

 

Include a statement that you have protections under the procedural safeguards provisions in Part B of IDEA;

 

Tell you how you can obtain a description of the procedural safeguards if the action that your school district is proposing or refusing is not an initial referral for evaluation;

 

Include resources for you to contact for help in understanding Part B of IDEA;

 

Describe any other options that your child's individualized education program

(IEP) Team considered and the reasons why those options were rejected; and

 

Provide a description of other reasons why your school district proposed or refused the action.

 

Notice in understandable language

 

The notice must be:

 

Written in language understandable to the general public; and

 

Provided in your native language or other mode of communication you use, unless it is clearly not feasible to do so.

 

If your native language or other mode of communication is not a written language, your school district must ensure that:

 

The notice is translated for you orally or by other means in your native language or other mode of communication;

 

You understand the content of the notice; and

 

There is written evidence that the requirements in paragraphs 1 and 2 have been met.

 

 

NATIVE LANGUAGE

34 CFR §300.29

 

Native language, when used regarding an individual who has limited English proficiency, means the following:

 

The language normally used by that person, or, in the case of a child, the language normally used by the child's parents;

 

In all direct contact with a child (including evaluation of the child), the language         normally used by the child in the home or learning environment.

 

For a person with deafness or blindness, or for a person with no written language, the mode of communication is what the person normally uses (such as sign language, Braille, or oral communication).

 

 

ELECTRONIC MAIL

34 CFR §300.505

 

If your school district offers parents the choice of receiving documents by e-mail, you may choose to receive the following by e-mail:

 

Prior written notice;

 

Procedural safeguards notice; and

 

Notices related to a due process complaint.

 

 

PARENTAL CONSENT - DEFINITION

34 CFR §300.9

 

Consent

 

Consent means:

 

You have been fully informed in your native language or other mode of communication (such as sign language, Braille, or oral communication) of all information about the action for which you are giving consent.

 

You understand and agree in writing to that action, and the consent describes that action and lists the records (if any) that will be released and to whom; and

 

You understand that the consent is voluntary on your part and that you may withdraw your consent at any time.

 

If you wish to revoke (cancel) your consent after your child has begun receiving special education and related services, you must do so in writing. Your withdrawal of consent does not negate (undo) an action that has occurred after you gave your consent but before you withdrew it. In addition, the school district is not required to amend (change) your child’s education records to remove any references that your child received special education and related services after your withdrawal of consent.

 

 

PARENTAL CONSENT

34 CFR §300.300

 

Consent for initial evaluation

 

Your school district cannot conduct an initial evaluation of your child to determine whether your child is eligible under Part B of IDEA to receive special education and related services without first providing you with prior written notice of the proposed action and obtaining your consent as described under the headings Prior Written Notice and Parental Consent.

 

Your school district must make reasonable efforts to obtain your informed consent for an initial evaluation to decide whether your child is a child with a disability.

 

Your consent for initial evaluation does not mean that you have also given your consent for the school district to start providing special education and related services to your child.

 

Your school district may not use your refusal to consent to one service or activity related to the initial evaluation as a basis for denying you or your child any other service,

benefit, or activity, unless another Part B requirement requires the school district to do so.

 

[Note for States/Districts: Select the applicable alternative language from the three options below, based upon State law.]

 

[Option 1:]

 

If your child is enrolled in public school or you are seeking to enroll your child in a public school and you have refused to provide consent or failed to respond to a request to provide consent for an initial evaluation, your school district may, but is not required to, seek to conduct an initial evaluation of your child by using the IDEA's mediation or due process complaint, resolution meeting, and impartial due process hearing procedures. Your school district will not violate its obligations to locate, identify and evaluate your child if it does not pursue an evaluation of your child in these circumstances.

 

 

[Option 2:]

 

If your child is enrolled in public school or you are seeking to enroll your child in a public school and you have refused to provide consent or failed to respond to a request to provide consent for an initial evaluation, your school district may not seek to conduct an initial evaluation of your child by using the IDEA's mediation or due process complaint, resolution meeting, and impartial due process hearing procedures. Your school district will not violate its obligations to locate, identify and evaluate your child if it does not pursue an evaluation of your child in these circumstances.

 

 

[Option 3:]

 

If your child is enrolled in public school or you are seeking to enroll your child in a public school and you have refused to provide consent or failed to respond to a request to provide consent for an initial evaluation, your school district must seek to conduct an initial evaluation of your child by using the IDEA's mediation or due process complaint, resolution meeting, and impartial due process hearing procedures. End of alternative language.

 

 

Special rules for initial evaluation of wards of the State

 

If a child is a ward of the State and is not living with his or her parent —

 

The school district does not need consent from the parent for an initial evaluation to determine if the child is a child with a disability if:

 

    Despite reasonable efforts to do so, the school district cannot find the child’s parent;

 

    The rights of the parents have been terminated in accordance with State law; or

 

     A judge has assigned the right to make educational decisions to an individual other than the parent and that individual has provided consent for an initial evaluation.

 

Ward of the State, as used in IDEA, means a child who, as determined by the State where the child lives, is:

 

A foster child;

 

Considered a ward of the State under State law; or

 

In the custody of a public child welfare agency.

 

There is one exception that you should know about. Ward of the State does not include a foster child who has a foster parent who meets the definition of a parent as used in IDEA.

 

Parental consent for services

 

Your school district must obtain your informed consent before providing special education and related services to your child for the first time.

 

The school district must make reasonable efforts to obtain your informed consent before providing special education and related services to your child for the first time.

 

If you do not respond to a request to provide your consent for your child to receive special education and related services for the first time, or if you refuse to give such consent or later revoke (cancel) your consent in writing, your school district may not use the procedural safeguards (i.e., mediation, due process complaint, resolution meeting, or an impartial due process hearing) in order to obtain agreement or a ruling that the special education and related services (recommended by your child's IEP Team) may be provided to your child without your consent.

 

If you refuse to give your consent for your child to receive special education and related services for the first time, or if you do not respond to a request to provide such consent or later revoke (cancel) your consent in writing and the school district does not provide your child with the special education and related services for which it sought your consent, your school district:

 

 Is not in violation of the requirement to make a free appropriate public education (FAPE) available to your child for its failure to provide those services to your child; and

 

Is not required to have an individualized education program (IEP) meeting or develop an IEP for your child for the special education and related services for which your consent was requested.

 

If you revoke (cancel) your consent in writing at any point after your child is first provided special education and related services, then the school district may not continue to provide such services, but must provide you with prior written notice, as described under the heading Prior Written Notice, before discontinuing those services.

 

Parental consent for reevaluations

 

Your school district must obtain your informed consent before it reevaluates your child, unless your school district can demonstrate that:

 

It took reasonable steps to obtain your consent for your child's reevaluation; and

 

You did not respond.

 

If you refuse to consent to your child's reevaluation, the school district may, but is not required to, pursue your child's reevaluation by using the mediation, due process complaint, resolution meeting, and impartial due process hearing procedures to seek to override your refusal to consent to your child's reevaluation. As with initial evaluations, your school district does not violate its obligations under Part B of IDEA if it declines to pursue the reevaluation in this manner.

 

Documentation of reasonable efforts to obtain parental consent

 

Your school must maintain documentation of reasonable efforts to obtain your consent for initial evaluations, to provide special education and related services for the first time, for a reevaluation, and to locate parents of wards of the State for initial evaluations. The documentation must include a record of the school district’s attempts in these areas, such as:

 

Detailed records of telephone calls made or attempted and the results of those calls;

 

Copies of correspondence sent to you and any responses received; and

 

Detailed records of visits made to your home or place of employment and the results of those visits.

 

Other consent requirements

 

Your consent is not required before your school district may:

 

Review existing data as part of your child's evaluation or a reevaluation; or

 

Give your child a test or other evaluation that is given to all children unless, before that test or evaluation, consent is required from parents of all children.

 

[NOTE: If the State requires consent for other services and activities (in addition to those listed above), the notice must specify what those other services and activities are, and then also state: “The school district must develop and implement procedures to ensure that your refusal to consent to any of these other services and activities does not result in a failure to provide your child with a free appropriate public education (FAPE). Also, your school district may not use your refusal to consent to one of these services or activities as a basis for denying any other service, benefit, or activity, unless another Part B requirement requires the school district to do so.”]

 

 

If you have enrolled your child in a private school at your own expense or if you are home schooling your child, and you do not provide your consent for your child's initial evaluation or your child's reevaluation, or you fail to respond to a request to provide your consent,

the school district may not use its dispute resolution procedures (i.e., mediation, due process complaint, resolution meeting, or an impartial due process hearing) and is not required to consider your child as eligible to receive equitable services (services made available to some parentally-placed private school children with disabilities).

 

 

INDEPENDENT EDUCATIONAL EVALUATIONS

34 CFR §300.502

 

General

 

As described below, you have the right to obtain an independent educational evaluation (IEE) of your child if you disagree with the evaluation of your child that was obtained by your school district.

 

If you request an independent educational evaluation, the school district must provide you with information about where you may obtain an independent educational evaluation and about the school district’s criteria that apply to independent educational evaluations.

 

Definitions

Independent educational evaluation means an evaluation conducted by a qualified examiner who is not employed by the school district responsible for the education of your child.

 

Public expense means that the school district either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to you, consistent with the provisions of Part B of IDEA, which allow each State to use whatever State, local, Federal, and private sources of support are available in the State to meet the requirements of Part B of the Act.

 

Right to evaluation at public expense

 

You have the right to an independent educational evaluation of your child at public expense if you disagree with an evaluation of your child obtained by your school district, subject to the following conditions:

 

If you request an independent educational evaluation of your child at public expense, your school district must, without unnecessary delay, either:

 

 (a) File a due process complaint to request a hearing to show that its evaluation of your child is appropriate; or (b) Provide an independent educational evaluation at public expense, unless the school district demonstrates in a hearing that the evaluation of your child that you obtained did not meet the school district’s criteria.

 

If your school district requests a hearing and the final decision is that your school district’s evaluation of your child is appropriate, you still have the right to an independent educational evaluation, but not at public expense.

 

If you request an independent educational evaluation of your child, the school district may ask why you object to the evaluation of your child obtained by your school district. However, your school district may not require an explanation and may not unreasonably delay either providing the independent educational evaluation of your child at public expense or filing a due process complaint to request a due process hearing to defend the school district’s evaluation of your child.

 

You are entitled to only one independent educational evaluation of your child at public expense each time your school district conducts an evaluation of your child with which you disagree.

 

Parent-initiated evaluations

 

If you obtain an independent educational evaluation of your child at public expense or you share with the school district an evaluation of your child that you obtained at private expense:

 

Your school district must consider the results of the evaluation of your child, if it meets the school district’s criteria for independent educational evaluations, in any decision made with respect to the provision of a free appropriate public education (FAPE) to your child; and

 

You or your school district may present the evaluation as evidence at a due process hearing regarding your child.

 

Requests for evaluations by hearing officers

 

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

 

School district criteria

 

If an independent educational evaluation is at public expense, the criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, must be the same as the criteria that the school district uses when it initiates an evaluation (to the extent those criteria are consistent with your right to an independent educational evaluation).

 

Except for the criteria described above, a school district may not impose conditions or timelines related to obtaining an independent educational evaluation at public expense.

 

DEFINITIONS

34 CFR §300.611

 

As used under the heading Confidentiality of Information:

 

Destruction means physical destruction or removal of personal identifiers from information so that the information is no longer personally identifiable.

 

Education records means the type of records covered under the definition of

‘‘education records’’ in 34 CFR Part 99 (the regulations implementing the Family

Educational Rights and Privacy Act of 1974, 20 U.S.C. 1232g (FERPA)).

 

Participating agency means any school district, agency or institution that collects, maintains, or uses personally identifiable information, or from which information

is obtained, under Part B of IDEA.

 

PERSONALLY IDENTIFIABLE

34 CFR §300.32

 

Personally identifiable means information that includes:

 

(a) Your child's name, your name as the parent, or the name of another family member;

 

(b) Your child's address;

 

(c) A personal identifier, such as your child’s social security number or student number; or

 

(d) A list of personal characteristics or other information that would make it possible to identify your child with reasonable certainty.

 

NOTICE TO PARENTS

34 CFR §300.612

 

The State Educational Agency must give notice that is adequate to fully inform parents about confidentiality of personally identifiable information, including:

 

A description of the extent to which the notice is given in the native languages of the various population groups in the State;

 

A description of the children on whom personally identifiable information is maintained, the types of information sought, the methods the State intends to use in gathering the information (including the sources from whom information is gathered), and the uses to be made of the information;

 

A summary of the policies and procedures that participating agencies must follow regarding storage, disclosure to third parties, retention, and destruction of personally identifiable information;  and

 

A description of all of the rights of parents and children regarding this information, including the rights under the Family Educational Rights and Privacy Act

(FERPA) and its implementing regulations in 34 CFR Part 99.

 

Before any major activity to identify, locate, or evaluate children in need of special education and related services (also known as “child find”), the notice must be published or announced in newspapers or other media, or both, with circulation adequate to notify parents throughout the State of these activities.

 

ACCESS RIGHTS

34 CFR §300.613

 

The participating agency must permit you to inspect and review any education records relating to your child that are collected, maintained, or used by your school district under Part B of IDEA. The participating agency must comply with your request to inspect and review any education records on your child without unnecessary delay and before any meeting regarding an individualized education program (IEP), or any impartial due process hearing (including a resolution meeting or a hearing regarding discipline), and in no case more than 45 calendar days after you have made a request. Your right to inspect and review education records includes:

 

Your right to a response from the participating agency to your reasonable requests for explanations and interpretations of the records;

 

Your right to request that the participating agency provide copies of the records if you cannot effectively inspect and review the records unless you receive those copies; and

 

Your right to have your representative inspect and review the records.

 

The participating agency may presume that you have authority to inspect and review records relating to your child unless advised that you do not have the authority under applicable State law governing such matters as guardianship, separation, and divorce.

 

 

 

RECORD OF ACCESS

34 CFR §300.614

 

Each participating agency must keep a record of parties obtaining access to education records collected, maintained, or used under Part B of IDEA (except access by parents and authorized employees of the participating agency), including the name of the party, the date access was given, and the purpose for which the party is authorized to use the records.

 

 

RECORDS ON MORE THAN ONE CHILD

34 CFR §300.615

 

If any education record includes information on more than one child, the parents of those children have the right to inspect and review only the information relating to their child or to be informed of that specific information.

 

LIST OF TYPES AND LOCATIONS OF INFORMATION

34 CFR §300.616

 

On request, each participating agency must provide you with a list of the types and locations of education records collected, maintained, or used by the agency.

 

FEES

34 CFR §300.617

 

Each participating agency may charge a fee for copies of records that are made for you under Part B of IDEA, if the fee does not effectively prevent you from exercising your right to inspect and review those records.

 

A participating agency may not charge a fee to search for or to retrieve information under Part B of IDEA.

 

AMENDMENT OF RECORDS AT PARENT’S REQUEST

34 CFR §300.618

 

If you believe that information in the education records regarding your child collected, maintained, or used under Part B of IDEA is inaccurate, misleading, or violates the privacy or other rights of your child, you may request the participating agency that maintains the information to change the information.

 

The participating agency must decide whether to change the information in accordance with your request within a reasonable period of time of receipt of your request.

 

If the participating agency refuses to change the information in accordance with your request, it must inform you of the refusal and advise you of your right to a hearing as described under the heading Opportunity For a Hearing.

 

OPPORTUNITY FOR A HEARING

34 CFR §300.619

 

The participating agency must, on request, provide you an opportunity for a hearing to challenge information in education records regarding your child to ensure that it is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of your child.

 

HEARING PROCEDURES

34 CFR §300.621

 

A hearing to challenge information in education records must be conducted according to the procedures for such hearings under the Family Educational Rights and Privacy Act (FERPA).

 

RESULT OF HEARING

34 CFR §300.620

 

If, as a result of the hearing, the participating agency decides that the information is inaccurate, misleading or otherwise in violation of the privacy or other rights of your child, it must change the information accordingly and inform you in writing.

 

If, as a result of the hearing, the participating agency decides that the information is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of your child, it must inform you of your right to place in the records that it maintains on your child a statement commenting on the information or providing any reasons you disagree with the decision of the participating agency.

 

Such an explanation placed in the records of your child must:

 

Be maintained by the participating agency as part of the records of your child as long as the record or contested portion is maintained by the participating agency; and

 

If the participating agency discloses the records of your child or the challenged information to any party, the explanation must also be disclosed to that party.

 

CONSENT FOR DISCLOSURE OF PERSONALLY IDENTIFIABLE

INFORMATION

34 CFR §300.622

 

Unless the information is contained in education records, and the disclosure is authorized without parental consent under the Family Educational Rights and Privacy Act (FERPA), your consent must be obtained before personally identifiable information

 

is disclosed to parties other than officials of participating agencies. Except under the circumstances specified below, your consent is not required before personally identifiable information is released to officials of participating agencies for purposes of meeting a requirement of Part B of IDEA.

 

Your consent, or consent of an eligible child who has reached the age of majority under State law, must be obtained before personally identifiable information is released to officials of participating agencies providing or paying for transition services.

 

If your child is in, or is going to go to, a private school that is not located in the same school district you reside in, your consent must be obtained before any personally identifiable information about your child is released between officials in the school district where the private school is located and officials in the school district where you reside.

 

SAFEGUARDS

34 CFR §300.623

 

Each participating agency must protect the confidentiality of personally identifiable information at collection, storage, disclosure, and destruction stages.

 

One official at each participating agency must assume responsibility for ensuring the confidentiality of any personally identifiable information.

 

All persons collecting or using personally identifiable information must receive training or instruction regarding your State’s policies and procedures regarding confidentiality under Part B of IDEA and the Family Educational Rights and Privacy Act (FERPA).

 

Each participating agency must maintain, for public inspection, a current listing of the names and positions of those employees within the agency who may have access to personally identifiable information.

 

DESTRUCTION OF INFORMATION

34 CFR §300.624

 

Your school district must inform you when personally identifiable information collected, maintained, or used under Part B of IDEA is no longer needed to provide educational services to your child.

 

The information must be destroyed at your request. However, a permanent record of your child’s name, address, and phone number, his or her grades, attendance record, classes attended, grade level completed, and year completed may be maintained without time limitation.

 

DIFFERENCES BETWEEN THE PROCEDURES FOR DUE PROCESS COMPLAINTS AND HEARINGS AND FOR STATE COMPLAINTS - State Complaint Procedures

 

The regulations for Part B of IDEA set forth separate procedures for State complaints and for due process complaints and hearings. As explained below, any individual or organization may file a State complaint alleging a violation of any Part B requirement by a school district, the State Educational Agency, or any other public agency. Only you or a school district may file a due process complaint on any matter relating to a proposal or a refusal to initiate or change the identification, evaluation, or educational placement of a child with a disability, or the provision of a free appropriate public education (FAPE) to the child. While staff of the State Educational Agency generally must resolve a State complaint within a 60-calendar-day timeline, unless the timeline is properly extended, an impartial hearing officer must hear a due process complaint (if not resolved through a resolution meeting or through mediation) and issue a written decision within 45-calendar-days after the end of the resolution period, as described in this document under the heading Resolution Process, unless the hearing officer grants a specific extension of the timeline at your request or the school district's request. The State complaint and due process complaint, resolution and hearing procedures are described more fully below. The State Educational Agency must develop model forms to help you file a due process complaint and help you or other parties to file a State complaint as described under the heading Model Forms.

 

ADOPTION OF STATE COMPLAINT PROCEDURES

34 CFR §300.151

 

General

 

Each State Educational Agency must have written procedures for:

 

Resolving any complaint, including a complaint filed by an organization or individual from another State;

 

The filing of a complaint with the State Educational Agency;

 

[NOTE to States and school districts: For those States that adopt the option, insert after State Educational Agency — “and the filing of a complaint with a school district and the right to have the State Educational Agency review the school district’s decision on the complaint”]

 

Widely disseminating the State complaint procedures to parents and other interested individuals, including parent training and information centers,

protection and advocacy agencies, independent living centers, and other appropriate entities.

 

Remedies for denial of appropriate services

 

In resolving a State complaint in which the State Educational Agency has found a failure to provide appropriate services, the State Educational Agency must address:

 

The failure to provide appropriate services, including corrective action appropriate to address the needs of the child (such as compensatory services or monetary reimbursement); and

 

Appropriate future provision of services for all children with disabilities.

 

MINIMUM STATE COMPLAINT PROCEDURES

34 CFR §300.152

 

Time limit; minimum procedures

 

Each State Educational Agency must include in its State complaint procedures a time limit of 60 calendar days after a complaint is filed to:

 

Carry out an independent on-site investigation, if the State Educational Agency determines that an investigation is necessary;

 

Give the complainant the opportunity to submit additional information, either orally or in writing, about the allegations in the complaint;

 

Provide the school district or other public agency with the opportunity to respond to the complaint, including, at a minimum: (a) at the option of the agency, a proposal to resolve the complaint; and (b) an opportunity for a parent who has filed a complaint and the agency to agree voluntarily to engage in mediation;

 

Review all relevant information and make an independent determination as to whether the school district or other public agency is violating a requirement of Part B of IDEA; and

 

Issue a written decision to the complainant that addresses each allegation in the complaint and contains: (a) findings of fact and conclusions; and (b) the reasons for the State Educational Agency’s final decision.

 

Time extension; final decision; implementation

 

The State Educational Agency’s procedures described above also must:

 

Permit an extension of the 60 calendar-day time limit only if: (a) exceptional circumstances exist with respect to a particular State complaint; or (b) you and the school district or other public agency involved voluntarily agree to extend the time to resolve the matter through mediation or alternative means of dispute resolution, if available in the State.

 

Include procedures for effective implementation of the State Educational Agency’s final decision, if needed, including: (a) technical assistance activities; (b) negotiations; and (c) corrective actions to achieve compliance.

 

State complaints and due process hearings

 

If a written State complaint is received that is also the subject of a due process hearing as described under the heading Filing a Due Process Complaint, or the State complaint contains multiple issues of which one or more are part of such a hearing, the State must set aside any part of the State complaint that is being addressed in the due process hearing until the hearing is over. Any issue in the State complaint that is not a part of the due process hearing must be resolved using the time limit and procedures described above.

 

If an issue raised in a State complaint has previously been decided in a due process hearing involving the same parties (for example, you and the school district), then the due process hearing decision is binding on that issue and the State Educational Agency must inform the complainant that the decision is binding.

 

A complaint alleging a school district’s or other public agency’s failure to implement a due process hearing decision must be resolved by the State Educational Agency.

 

FILING A STATE COMPLAINT

34 CFR §300.153

 

An organization or individual may file a signed written State complaint under the procedures described above.

 

The State complaint must include:

 

A statement that a school district or other public agency has violated a requirement of Part B of IDEA or its implementing regulations in 34 CFR Part

300;

 

The facts on which the statement is based;

 

The signature and contact information for the party filing the complaint; and

 

If alleging violations regarding a specific child:

 

-The name of the child and address of the residence of the child; (b)- The name of the school the child is attending;

 

-In the case of a homeless child or youth, available contact information for the child, and the name of the school the child is attending;

 

-A description of the nature of the problem of the child, including facts relating to the problem; and

 

-A proposed resolution of the problem to the extent known and available to the party filing the complaint at the time the complaint is filed.

 

The complaint must allege a violation that occurred not more than one year prior to the date that the complaint is received as described under the heading Adoption of State Complaint Procedures.

 

The party filing the State complaint must forward a copy of the complaint to the school district or other public agency serving the child at the same time the party files the complaint with the State Educational Agency.

 

FILING A DUE PROCESS COMPLAINT

34 CFR §300.507

 

General – Filling A Due Process Complaint

 

You or the school district may file a due process complaint on any matter relating to a proposal or a refusal to initiate or change the identification, evaluation or educational placement of your child, or the provision of a free appropriate public education (FAPE) to your child.

 

The due process complaint must allege a violation that happened not more than two years before you or the school district knew or should have known about the alleged action that forms the basis of the due process complaint.

 

[NOTE to States and school districts: If the State has established a specific timeframe for requesting a hearing under IDEA that is different than two years (either shorter or longer), revise the above statement to reflect that timeframe.]

 

The above timeline does not apply to you if you could not file a due process complaint within the timeline because:

 

The school district specifically misrepresented that it had resolved the issues identified in the complaint; or

 

The school district withheld information from you that it was required to provide you under Part B of IDEA.

 

Information for parents

 

The school 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 if you or the school district file a due process complaint.

 

DUE PROCESS COMPLAINT

34 CFR §300.508

 

General

 

In order to request a hearing, you or the school district (or your attorney or the school district's attorney) must submit a due process complaint to the other party. That complaint must contain all of the content listed below and must be kept confidential.

 

Whoever files the complaint must also provide the State Educational Agency with a copy of the complaint.

 

Content of the complaint

 

The due process complaint must include:

 

-The name of the child;

 

-The address of the child’s residence;

 

-The name of the child’s school;

 

-If the child is a homeless child or youth, the child’s contact information and the name of the child’s school;

 

-A description of the nature of the problem of the child relating to the proposed or refused action, including facts relating to the problem; and

 

- A proposed resolution of the problem to the extent known and available to the complaining party (you or the school district) at the time.

 

Notice required before a hearing on a due process complaint

 

You or the school district may not have a due process hearing until you or the school district (or your attorney or the school district's attorney) files a due process complaint that includes the information listed above.

 

Sufficiency of complaint

 

In order for a due process complaint to go forward, it must be considered sufficient. The due process complaint will be considered sufficient (to have met the content requirements above) unless the party receiving the due process complaint (you or the school district) notifies the hearing officer and the other party in writing, within 15 calendar days of receiving the complaint, that the receiving party believes that the due process complaint does not meet the requirements listed above.

 

Within five calendar days of receiving the notification that the receiving party (you or the school district) considers a due process complaint insufficient, the hearing officer must decide if the due process complaint meets the requirements listed above, and notify you and the school district in writing immediately.

 

Complaint amendment

 

You or the school district may make changes to the complaint only if:

 

The other party approves of the changes in writing and is given the chance to resolve the due process complaint through a resolution meeting, described under the heading Resolution Process; or

 

By no later than five days before the due process hearing begins, the hearing officer grants permission for the changes.

 

If the complaining party (you or the school district) makes changes to the due process complaint, the timelines for the resolution meeting (within 15 calendar days of receiving the complaint) and the time period for resolution (within 30 calendar days of receiving the complaint) start again on the date the amended complaint is filed.

 

Local educational agency (LEA) or school district response to a due process complaint

 

If the school district has not sent a prior written notice to you, as described under the heading Prior Written Notice, regarding the subject matter contained in your due process complaint, the school district must, within 10 calendar days of receiving the due process complaint, send to you a response that includes:

 

An explanation of why the school district proposed or refused to take the action raised in the due process complaint;

 

A description of other options that your child's individualized education program

(IEP) Team considered and the reasons why those options were rejected;

 

A description of each evaluation procedure, assessment, record, or report the school district used as the basis for the proposed or refused action; and

 

A description of the other factors that are relevant to the school district’s proposed or refused action.

 

Providing the information in items 1-4 above does not prevent the school district from asserting that your due process complaint was insufficient.

 

Other party response to a due process complaint

 

Except as stated under the sub-heading immediately above, Local educational agency (LEA) or school district response to a due process complaint, the party receiving a due process complaint must, within 10 calendar days of receiving the complaint, send the other party a response that specifically addresses the issues in the complaint.

 

MODEL FORMS

34 CFR §300.509

 

The State Educational Agency must develop model forms to help you to file a due process complaint and to help you and other parties to file a State complaint. However, your State or the school district may not require the use of these model forms. In fact, you can use the model form or another appropriate form, so long as it contains the required information for filing a due process complaint or a State complaint.

 

MEDIATION

34 CFR §300.506

General

 

The school district must develop procedures that make mediation available to allow you and the school district to resolve disagreements involving any matter under Part B of IDEA, including matters arising prior to the filing of a due process complaint. Thus,

mediation is available to resolve disputes under Part B of IDEA, whether or not you have filed a due process complaint to request a due process hearing as described under the heading Filing a Due Process Complaint.

 

Requirements

 

The procedures must ensure that the mediation process:

 

Is voluntary on your part and the school district's part;

 

Is not used to deny or delay your right to a due process hearing, or to deny any other rights provided under Part B of IDEA; and

 

Is conducted by a qualified and impartial mediator who is trained in effective mediation techniques.

 

The school district may develop procedures that offer parents and schools that choose not to use the mediation process, an opportunity to meet, at a time and location convenient to you, with a disinterested party:

 

Who is under contract with an appropriate alternative dispute resolution entity, or a parent training and information center or community parent resource center in the State; and

 

Who would explain the benefits of, and encourage the use of, the mediation process to you.

 

The State must keep a list of people who are qualified mediators and know the laws and regulations relating to the provision of special education and related services. The State Educational Agency must select mediators on a random, rotational, or other impartial basis.

 

The State is responsible for the costs of the mediation process, including the costs of meetings.

 

Each meeting in the mediation process must be scheduled in a timely manner and held at a place that is convenient for you and the school district.

 

If you and the school district resolve a dispute through the mediation process, both parties must enter into a legally binding agreement that sets forth the resolution and:

 

States that all discussions that happened during the mediation process will remain confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding (court case); and

 

Is signed by both you and a representative of the school district who has the authority to bind the school district.

 

A written, signed mediation agreement is enforceable in any State court of competent jurisdiction (a court that has the authority under State law to hear this type of case) or in a district court of the United States.

 

Discussions that happened during the mediation process must be confidential. They cannot be used as evidence in any future due process hearing or civil proceeding of any Federal court or State court of a State receiving assistance under Part B of IDEA.

 

Impartiality of mediator

 

The mediator:

 

May not be an employee of the State Educational Agency or the school district that is involved in the education or care of your child; and

 

Must not have a personal or professional interest which conflicts with the mediator’s objectivity.

 

A person who otherwise qualifies as a mediator is not an employee of a school district or State agency solely because he or she is paid by the agency or school district to serve as a mediator.

 

 

RESOLUTION PROCESS

34 CFR §300.510

 

Resolution meeting

 

Within 15 calendar days of receiving notice of your due process complaint, and before the due process hearing begins, the school district must convene a meeting with you and the relevant member or members of the individualized education program (IEP) Team who have specific knowledge of the facts identified in your due process complaint. The meeting:

 

Must include a representative of the school district who has decision-making authority on behalf of the school district; and

 

May not include an attorney of the school district unless you are accompanied by an attorney.

 

You and the school district determine the relevant members of the IEP Team to attend the meeting.

 

The purpose of the meeting is for you to discuss your due process complaint, and the facts that form the basis of the complaint, so that the school district has the opportunity to resolve the dispute.

 

The resolution meeting is not necessary if:

 

You and the school district agree in writing to waive the meeting; or

 

You and the school district agree to use the mediation process, as described under the heading Mediation.

 

Resolution period

 

If the school district has not resolved the due process complaint to your satisfaction within 30 calendar days of the receipt of the due process complaint (during the time period for the resolution process), the due process hearing may occur.

 

The 45-calendar-day timeline for issuing a final due process hearing decision, as described under the heading, Hearing Decisions, begins at the expiration of the 30-

calendar-day resolution period, with certain exceptions for adjustments made to the 30- calendar-day resolution period, as described below.

 

Except where you and the school district have both agreed to waive the resolution process or to use mediation, your failure to participate in the resolution meeting will delay the timelines for the resolution process and due process hearing until the meeting is held.

 

If after making reasonable efforts and documenting such efforts, the school district is not able to obtain your participation in the resolution meeting, the school district may, at the end of the 30-calendar-day resolution period, request that a hearing officer dismiss your due process complaint. Documentation of such efforts must include a record of the school district’s attempts to arrange a mutually agreed upon time and place, such as:

 

Detailed records of telephone calls made or attempted and the results of those calls;

 

Copies of correspondence sent to you and any responses received; and

 

Detailed records of visits made to your home or place of employment and the results of those visits.

 

If the school district fails to hold the resolution meeting within 15 calendar days of receiving notice of your due process complaint or fails to participate in the resolution meeting, you may ask a hearing officer to begin the 45-calendar-day due process hearing timeline.

 

Adjustments to the 30-calendar-day resolution period

 

If you and the school district agree in writing to waive the resolution meeting, then the

45-calendar-day timeline for the due process hearing starts the next day.

 

After the start of mediation or the resolution meeting and before the end of the 30- calendar-day resolution period, if you and the school district agree in writing that no agreement is possible, then the 45-calendar-day timeline for the due process hearing starts the next day.

 

If you and the school district agree to use the mediation process but have not yet reached agreement, at the end of the 30-calendar-day resolution period the mediation process may be continued until an agreement is reached if both parties agree to the continuation in writing. However, if either you or the school district withdraws from the mediation process during this continuation period, then the 45-calendar-day timeline for the due process hearing starts the next day.

 

Written settlement agreement

 

If a resolution to the dispute is reached at the resolution meeting, you and the school district must enter into a legally binding agreement that is:

 

Signed by you and a representative of the school district who has the authority to bind the school district; and

 

Enforceable in any State court of competent jurisdiction (a State court that has authority to hear this type of case) or in a district court of the United States or by

the State Educational Agency, if your State has another mechanism or procedures that permit parties to seek enforcement of resolution agreements.

 

Agreement review period

 

If you and the school district enter into an agreement as a result of a resolution meeting, either party (you or the school district) may void the agreement within 3 business days

of the time that both you and the school district signed the agreement.

 

IMPARTIAL DUE PROCESS HEARING

34 CFR §300.511

 

General

Whenever a due process complaint is filed, you or the school district involved in the dispute must have an opportunity for an impartial due process hearing, as described in the Due Process Complaint and Resolution Process sections.

 

[NOTE: The procedural safeguards notice provided to parents should identify the agency that is responsible for convening hearings (e.g., the school district, the State Educational Agency, or another State-level agency or entity). Under the following headings, two options are provided (“one-tier” or “two-tier”), and the State/school district should use the appropriate language that is consistent with its due process system: Hearing Rights (34 CFR §300.512), Finality of Decision; Appeal; Impartial Review (34 CFR §300.514), Timelines and Convenience of Hearings and Reviews (34 CFR §300.515) and Civil Actions, Including the Time Periods in which to File those Actions (34 CFR §300.516).

 

“One-tier” refers to a due process system in which the State Educational Agency or another State-level agency or entity (other than the school district) is responsible for convening due process hearings, and an appeal from a due process hearing decision is filed directly with a court.

“Two-tier” refers to a due process system in which the school district is responsible for convening due process hearings, and an appeal from a due process hearing is to a State-level review hearing before the decision can be appealed to a court.]

 

Impartial hearing officer

 

At a minimum, a hearing officer:

 

Must not be an employee of the State Educational Agency or the school district that is involved in the education or care of the child. However, a person is not an employee of the agency solely because he or she is paid by the agency to serve as a hearing officer;

 

Must not have a personal or professional interest that conflicts with the hearing officer’s objectivity in the hearing;

 

Must be knowledgeable and understand the provisions of IDEA, Federal and State regulations pertaining to IDEA, and legal interpretations of IDEA by Federal and State courts; and

 

Must have the knowledge and ability to conduct hearings, and to make and write decisions, consistent with appropriate, standard legal practice.

 

Each school district must keep a list of those persons who serve as hearing officers that includes a statement of the qualifications of each hearing officer.

 

Subject matter of due process hearing

 

The party (you or the school district) that requests the due process hearing may not raise issues at the due process hearing that were not addressed in the due process complaint, unless the other party agrees.

 

Timeline for requesting a hearing

 

You or the school district must request an impartial hearing on a due process complaint within two years of the date you or the school district knew or should have known about the issue addressed in the complaint.

 

[NOTE: If State law establishes an explicit time limit for requesting a due process hearing that is different than two years (either shorter or longer), revise the above statement to reflect that timeframe.]

 

Exceptions to the timeline

 

The above timeline does not apply to you if you could not file a due process complaint because:

 

The school district specifically misrepresented that it had resolved the problem or issue that you are raising in your complaint; or

 

The school district withheld information from you that it was required to provide to you under Part B of IDEA.

 

HEARING RIGHTS

34 CFR §300.512

 

[NOTE: Four alternatives follow. States should use the one that conforms to their due process system and State law on representation by non-attorneys.]

 

If State law allows parties to be represented by non-attorneys at due process hearings:]

 

General

 

You have the right to represent yourself at a due process hearing. In addition, any party to a due process hearing (including a hearing relating to disciplinary procedures) has

the right to:

 

Be accompanied and advised by an attorney and/or persons with special knowledge or training regarding the problems of children with disabilities;

 

Be represented at the due process hearing by an attorney or non-attorney;

 

Present evidence and confront, cross-examine, and require the attendance of witnesses;

 

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

 

Obtain a written, or, at your option, electronic, word-for-word record of the hearing; and

 

Obtain written, or, at your option, electronic findings of fact and decisions.

 

If State law prohibits parties from being represented by non-attorneys at due process hearings:]

 

General

 

You have the right to represent yourself at a due process hearing. In addition, any party to a due process hearing (including a hearing relating to disciplinary procedures) has

the right to:

 

Be accompanied and advised by an attorney and/or persons with special knowledge or training regarding the problems of children with disabilities;

 

Be represented at the due process hearing by an attorney;

 

Present evidence and confront, cross-examine, and require the attendance of witnesses;

 

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

 

Obtain a written, or, at your option, electronic, word-for-word record of the hearing;

and   

 

Obtain written, or, at your option, electronic findings of fact and decisions.

 

[The following would apply to all one-tier States:]

 

Additional disclosure of information

 

At least five business days prior to a due process hearing, you and the school district must disclose to each other all evaluations completed by that date and recommendations based on those evaluations that you or the school district intend to use at the hearing.

 

A hearing officer may prevent any party that fails to comply with this requirement from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party.

 

Parental rights at hearings

 

You must be given the right to:

 

Have your child present at the hearing;

 

Open the hearing to the public; and

 

Have the record of the hearing, the findings of fact and decisions provided to you at no cost.

 

[End of one-tier State alternative language.]

 

[One of the following two options would apply to two-tier States.]

 

If State law allows parties to be represented by non-attorneys at due process hearings:]

 

General

 

You have the right to represent yourself at a due process hearing (including a hearing relating to disciplinary procedures) or an appeal with a hearing to receive additional evidence, as described under the subheading, Appeal of decisions; impartial review. In addition, any party to a hearing has the right to:

 

Be accompanied and advised by an attorney and/or persons with special knowledge or training regarding the problems of children with disabilities;

 

Be represented at the hearing by an attorney or a non-attorney;

 

Present evidence and confront, cross-examine, and require the attendance of witnesses;

 

Prohibit the introduction of any evidence at the hearing that has not been disclosed to the other party at least five business days before the hearing;

 

Obtain a written, or, at your option, electronic, word-for-word record of the hearing; and

 

Obtain written, or, at your option, electronic findings of fact and decisions.

 

[If State law prohibits parties from being represented by non-attorneys at due process hearings:]

 

General

 

You have the right to represent yourself at a due process hearing (including a hearing related to disciplinary procedures) or an appeal with a hearing to receive additional evidence, as described under the subheading, Appeal of decisions; impartial review. In addition, any party to a hearing has the right to:

 

Be accompanied and advised by an attorney and/or persons with special knowledge or training regarding the problems of children with disabilities;

 

Be represented at the hearing by an attorney;

 

Present evidence and confront, cross-examine, and require the attendance of witnesses;

 

Prohibit the introduction of any evidence at the hearing that has not been disclosed to the other party at least five business days before the hearing;

 

Obtain a written, or, at your option, electronic, word-for-word record of the hearing; and

 

Obtain written, or, at your option, electronic findings of fact and decisions.

 

[The following would apply to all two-tier States:]

 

Additional disclosure of information

 

At least five business days prior to a due process hearing, you and the school district must disclose to each other all evaluations completed by that date and recommendations based on those evaluations that you or the school district intend to use at the hearing.

 

A hearing officer or review officer may prevent any party that fails to comply with this requirement from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party.

 

Parental rights at hearings

 

You must be given the right to:

 

Have your child present at the hearing;

 

Open the hearing to the public; and

 

Have the record of the hearing, the findings of fact, and decisions provided to you at no cost.

 

[End of two-tier State alternative language.]

 

HEARING DECISIONS

34 CFR §300.513

 

Decision of the hearing officer

 

A hearing officer’s decision on whether your child received a free appropriate public education (FAPE) must be based on evidence and arguments that directly relate to FAPE.

 

In matters alleging a procedural violation (such as “an incomplete IEP Team”), a hearing officer may find that your child did not receive FAPE only if the procedural violations:

 

Interfered with your child’s right to a free appropriate public education (FAPE);

 

Significantly interfered with your opportunity to participate in the decision-making process regarding the provision of a free appropriate public education (FAPE) to your child; or

 

Caused your child to be deprived of an educational benefit.

 

None of the provisions described above can be interpreted to prevent a hearing officer from ordering a school district to comply with the requirements in the procedural safeguards section of the Federal regulations under Part B of IDEA (34 CFR §§300.500 through 300.536).

 

[The following applies only to two-tier States:]

 

None of the provisions under the headings: Filing a Due Process Complaint; Due Process Complaint; Model Forms; Resolution Process; Impartial Due Process Hearing; Hearing Rights; and Hearing Decisions (34 CFR §§300.507 through

300.513), can affect your right to file an appeal of the due process hearing decision with the State Educational Agency.

 

[End of two-tier State alternative language.]

 

Separate request for a due process hearing

 

Nothing in the procedural safeguards section of the Federal regulations under Part B of IDEA (34 CFR §§300.500 through 300.536) can be interpreted to prevent you from filing a separate due process complaint on an issue separate from a due process complaint already filed.

 

Findings and decision provided to the advisory panel and general public

 

The State Educational Agency or the school district, (whichever was responsible for your hearing) after deleting any personally identifiable information, must:

 

Provide the findings and decisions in the due process hearing or appeal to the

State special education advisory panel; and

 

Make those findings and decisions available to the public.

 

FINALITY OF DECISION; APPEAL; IMPARTIAL REVIEW

34 CFR §300.514 - Appeals

 

NOTE: Two alternative follow. States should use the one that conforms to their due process system.

 

The follow applies to one-tier States:

 

Finality of hearing decision

 

A decision made in a due process hearing (including a hearing relating to disciplinary procedures) is final, except that any party involved in the hearing (you or the school district) may appeal the decision by bringing a civil action, as described under the heading Civil Actions, Including the Time Period in Which to File Those Actions.

 

The following applies to two-tier States:

 

Finality of hearing decision

 

A decision made in a due process hearing (including a hearing relating to disciplinary procedures) is final, except that any party involved in the hearing (you or the school district) may appeal the decision to the State Educational Agency.

 

Appeal of decisions; impartial review

 

If a party (you or the school district) is aggrieved (harmed) by the findings and decision in the hearing, an appeal may be brought to the State Educational Agency.

 

If there is an appeal, the State Educational Agency must conduct an impartial review of the findings and decision appealed. The official conducting the review must:

 

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 hearing rights described under the heading Hearing Rights apply;

 

Give 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 you and the school district a copy of the written, or, at your option, electronic findings of fact and decisions.

 

Findings and decision provided to the advisory panel and general public

 

The State Educational Agency, after deleting any personally identifiable information, must:

 

Provide the findings and decisions of the appeal to the State special education advisory panel; and

 

Make those findings and decisions available to the public.

 

Finality of review decision

 

The decision made by the reviewing official is final unless you or the school district brings a civil action, as described under the heading Civil Actions, Including the Time Period in Which to File Those Actions. End of alternative language.

 

TIMELINES AND CONVENIENCE OF HEARINGS AND REVIEWS

34 CFR §300.515

 

NOTE: Two alternative follow. States should use the one that conforms to their due process system.

 

           

The following applies to one tier States:

 

The State Educational Agency must ensure that not later than 45 calendar days after the expiration of the 30-calendar-day period for resolution meetings or, as described under the sub-heading Adjustments to the 30-calendar-day resolution period,

not later than 45 calendar days after the expiration of the adjusted time period:

 

A final decision is reached in the hearing; and

 

A copy of the decision is mailed to each of the parties.

 

A hearing officer may grant specific extensions of time beyond the 45-calendar-day time period described above at the request of either party (you or the school district).

 

Each hearing must be conducted at a time and place that is reasonably convenient to you and your child.

 

The following applies to two tier States:

 

The school district must ensure that not later than 45 calendar days after the expiration of the 30-calendar-day period for resolution meetings  or, as described under the sub-heading Adjustments to the 30-calendar-day resolution period, not later than 45 calendar days after the expiration of the adjusted time period:

 

A final decision is reached in the hearing; and

 

A copy of the decision is mailed to you and the school district.

 

The State Educational Agency must ensure that not later than 30 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 you and the school district.

 

A hearing or reviewing officer may grant specific extensions of time beyond the periods described above (45 calendar days for a hearing decision and 30 calendar days for a review decision) if you or the school district make a request for a specific extension of the timeline.

 

Each hearing and review involving oral arguments must be conducted at a time and place that is reasonably convenient to you and your child. End of alternative language.

 

CIVIL ACTIONS, INCLUDING THE TIME PERIOD IN WHICH TO

FILE THOSE ACTIONS

34 CFR §300.516

 

General

 

[NOTE: Two alternatives follow. States should use the one that conforms to their due process system.]

 

[The following applies to one-tier States:]

 

Any party (you or the school district) who does not agree with the findings and decision in the due process hearing (including a hearing relating to disciplinary procedures) has the right to bring a civil action with respect to the matter that was the subject of the due process hearing. The action may be brought in a State court of competent jurisdiction (a State court that has authority to hear this type of case) or in a district court of the United States without regard to the amount in dispute.

 

[The following applies to two-tier States:]

 

Any party (you or the school district) who does not agree with the findings and decision in the State-level review has the right to bring a civil action with respect to the matter that was the subject of the due process hearing (including a hearing relating to disciplinary procedures). The action may be brought in a State court of competent jurisdiction (a State court that has authority to hear this type of case) or in a district court of the United States without regard to the amount in dispute. End of alternative language.

 

Time limitation

 

[NOTE: Two alternatives follow. States should use the one that conforms to their due process system.]

 

[The following applies to one-tier States]

 

The party (you or the school district) bringing the action shall have 90 calendar days from the date of the decision of the hearing officer to file a civil action.

 

[NOTE: If the State has established a timeframe different than 90 days (either shorter or longer), revise the above statement to reflect that specific State timeframe.]

 

[The following applies to two-tier States:]

The party (you or the school district) bringing the action shall have 90 calendar days from the date of the decision of the State review official to file a civil action.

 

[NOTE: If the State has established a timeframe different than 90 days (either shorter or longer), revise the above statement to reflect that specific State timeframe]End of alternative language

 

Additional procedures

 

In any civil action, the court:

 

Receives the records of the administrative proceedings;

 

Hears additional evidence at your request or at the school district's request; and

 

Bases its decision on the preponderance of the evidence and grants the relief that the court determines to be appropriate.

 

Under appropriate circumstances, judicial relief may include reimbursement of private school tuition and compensatory education services.

 

Jurisdiction of district courts

 

The district courts of the United States have authority to rule on actions brought under

Part B of IDEA without regard to the amount in dispute.

 

Rule of construction

 

Nothing in Part B of IDEA restricts or limits the rights, procedures, and remedies available under the U.S. Constitution, the Americans with Disabilities Act of 1990, Title V of the Rehabilitation Act of 1973 (Section 504), or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under these laws seeking relief that is also available under Part B of IDEA, the due process procedures described above must be exhausted to the same extent as would be required if the party filed the action under Part B of IDEA. This means that you may

have remedies available under other laws that overlap with those available under IDEA, but in general, to obtain relief under those other laws, you must first use the available administrative remedies under IDEA (i.e., the due process complaint; resolution process, including the resolution meeting; and impartial due process hearing procedures) before going directly into court.

 

THE CHILD’S PLACEMENT WHILE THE DUE PROCESS

COMPLAINT AND HEARING ARE PENDING

34 CFR §300.518

 

Except as provided below under the heading PROCEDURES WHEN DISCIPLINING CHILDREN WITH DISABILITIES, once a due process complaint is sent to the other party, during the resolution process time period, and while waiting for the decision of any impartial due process hearing or court proceeding, unless you and the State or school district agree otherwise, your child must remain in his or her current educational placement.

 

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

 

If the due process complaint involves an application for initial services under Part B of IDEA for a child who is transitioning from being served under Part C of IDEA to Part B of IDEA and who is no longer eligible for Part C services because the child has turned three, the school district is not required to provide the Part C services that the child has been receiving. If the child is found eligible under Part B of IDEA and you consent for your child to receive special education and related services for the first time, then, pending the outcome of the proceedings, the school district must provide those special education and related services that are not in dispute (those which you and the school district both agree upon).

 

[The Following applies to one-tier States]

If a hearing officer in a due process hearing conducted by the State Educational Agency agrees with you that a change of placement is appropriate, that placement must be treated as your child’s current educational placement where your child will remain while waiting for the decision of any impartial due process hearing or court proceeding.

 

[The Following applies to two-tier States]

If a State review official in an administrative appeal proceeding agrees with you that a change of placement is appropriate, that placement must be treated as your child’s current educational placement where your child will remain while waiting for the decision of any impartial due process hearing or court proceeding.

 

ATTORNEYS’ FEES

34 CFR §300.517

 

General

 

In any action or proceeding brought under Part B of IDEA, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to you, if you prevail (win).

 

In any action or proceeding brought under Part B of IDEA, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to a prevailing State Educational Agency or school district, to be paid by your attorney, if the attorney: (a) filed a complaint or court case that the court finds is frivolous, unreasonable, or without foundation;  or (b) continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation; or

 

In any action or proceeding brought under Part B of IDEA, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to a prevailing State Educational Agency or school district, to be paid by you or your attorney, if your request for a due process hearing or later court case was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to unnecessarily increase the cost of the action or proceeding (hearing).

 

Award of fees

 

A court awards reasonable attorneys’ fees as follows:

 

Fees must be based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished. No bonus or multiplier may be used in calculating the fees awarded.

 

Attorneys’ fees may not be awarded and related costs may not be reimbursed in any action or proceeding under Part B of IDEA for services performed after a written offer of settlement is made to you if:

 

The offer is made within the time prescribed by Rule 68 of the Federal Rules of Civil Procedure or, in the case of a due process hearing or State-level review, at any time more than 10 calendar days before the proceeding begins;

 

The offer is not accepted within 10 calendar days; and

 

The court or administrative hearing officer finds that the relief finally obtained by you is not more favorable to you than the offer of settlement.

 

Despite these restrictions, an award of attorneys’ fees and related costs may be made to you if you prevail and you were substantially justified in rejecting the settlement offer.

 

Fees may not be awarded relating to any meeting of the individualized education program (IEP) Team unless the meeting is held as a result of an administrative proceeding or court action.

 

[NOTE: if the State does not allow fees for mediation, add

“Fees also may not be awarded for a mediation as described under the heading Mediation.”]

 

A resolution meeting, as described under the heading Resolution Process, is not considered a meeting convened as a result of an administrative hearing or court action, and also is not considered an administrative hearing or court action for purposes of these attorneys’ fees provisions.

 

The court reduces, as appropriate, the amount of the attorneys’ fees awarded under

Part B of IDEA, if the court finds that:

 

You, or your attorney, during the course of the action or proceeding, unreasonably delayed the final resolution of the dispute;

 

The amount of the attorneys’ fees otherwise authorized to be awarded unreasonably exceeds the hourly rate prevailing in the community for similar services by attorneys of reasonably similar skill, reputation, and experience;

 

The time spent and legal services furnished were excessive considering the nature of the action or proceeding; or

 

The attorney representing you did not provide to the school district the appropriate information in the due process request notice as described under the heading Due Process Complaint.

 

However, the court may not reduce fees if the court finds that the State or school district unreasonably delayed the final resolution of the action or proceeding or there was a violation under the procedural safeguards provisions of Part B of IDEA.

 

AUTHORITY OF SCHOOL PERSONNEL

34 CFR §300.530 – procedures for disciplining children with disabilities

 

Case-by-case determination

 

School personnel may consider any unique circumstances on a case-by-case basis when determining whether a change of placement, made in accordance with the following requirements related to discipline, is appropriate for a child with a disability who violates a school code of student conduct.

 

General

 

To the extent that they also take such action for children without disabilities, school personnel may, for not more than 10 school days in a row, remove a child with a disability who violates a code of student conduct from his or her current placement to an appropriate interim alternative educational setting, another setting, or suspension. School personnel may also impose additional removals of the child of not more than 10 school days in a row in that same school year for separate incidents of misconduct, as long as those removals do not constitute a change of placement (see the heading Change of Placement Because of Disciplinary Removals for the definition).

 

Once a child with a disability has been removed from his or her current placement for a total of 10 school days in the same school year, the school district must, during any subsequent days of removal in that school year, provide services to the extent required below under the sub-heading Services.

 

Additional authority

 

If the behavior that violated the student code of conduct was not a manifestation of the child’s disability (see the subheading Manifestation determination) and the disciplinary change of placement would exceed 10 school days in a row, school personnel may apply the disciplinary procedures to that child with a disability in the same manner and for the same duration as it would to children without disabilities, except that the school must provide services to that child as described below under Services. The child’s IEP Team determines the interim alternative educational setting for such services.

 

Services

 

[Note: To clarify whether students who are subject to short-term disciplinary action receive services during that time period, select the applicable provision below.]

 

[Option 1:]

 

The school district provides services to both a child with a disability and a child without a disability who has been removed from his or her current placement for 10 school days or less in that school year. These services may be provided in an interim alternative educational setting.

 

[Option 2:]

 

The school district does not provide services to a child with a disability or a child without a disability who has been removed from his or her current placement for 10 school days or less in that school year. End of alternative language.

 

A child with a disability who is removed from the child’s current placement for more than 10 school days and the behavior is not a manifestation of the child’s disability (see subheading, Manifestation determination) or who is removed under special circumstances (see the subheading, Special circumstances) must:

 

Continue to receive educational services (have available a free appropriate public education), so as to enable the child to continue to participate in the general education curriculum, although in another setting (that may be an interim alternative educational setting), and to progress toward meeting the goals set out in the child’s IEP; and

 

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 happen again.

 

After a child with a disability has been removed from his or her current placement for 10 school days in that same school year, and if the current removal is for 10 school days in a row or less and if the removal is not a change of placement (see definition below), then school personnel, in consultation with at least one of the child’s teachers, determine the extent to which services are needed to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP.

 

If the removal is a change of placement (see the heading, Change of Placement Because of Disciplinary Removals), the child’s IEP Team determines the appropriate services to enable the child to continue to participate in the general education curriculum, although in another setting (that may be an interim alternative educational setting), and to progress toward meeting the goals set out in the child’s IEP.

 

Manifestation determination

 

Within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct (except for a removal that is for 10 school days in a row or less and not a change of placement), the school district, you, and other relevant members of the IEP Team (as determined by you and the school district) must review all relevant information in the student’s file, including the

child’s IEP, any teacher observations, and any relevant information provided by you to determine:

 

If the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability; or

 

If the conduct in question was the direct result of the school district’s failure to implement the child's IEP.

 

If the school district, you, and other relevant members of the child’s IEP Team determine that either of those conditions was met, the conduct must be determined to be a manifestation of the child’s disability.

 

If the school district, you, and other relevant members of the child’s IEP Team determine that the conduct in question was the direct result of the school district’s failure to implement the IEP, the school district must take immediate action to remedy those deficiencies.

 

Determination that behavior was a manifestation of the child's disability

 

If the school district, you, and other relevant members of the IEP Team determine that the conduct was a manifestation of the child’s disability, the IEP Team must either:

 

Conduct a functional behavioral assessment, unless the school district had conducted a functional behavioral assessment before the behavior that resulted in the change of placement occurred, and implement a behavioral intervention plan for the child; or

 

If a behavioral intervention plan already has been developed, review the behavioral intervention plan, and modify it, as necessary, to address the behavior.

 

Except as described below under the sub-heading Special circumstances, the school district must return your child to the placement from which your child was removed, unless you and the district agree to a change of placement as part of the modification of the behavioral intervention plan.

Special circumstances

 

Whether or not the behavior was a manifestation of your child’s disability, school personnel may remove a student to an interim alternative educational setting (determined by the child’s IEP Team) for not more than 45 school days, if your child:

 

Carries a weapon (see the definition below) to school or has a weapon at school, on school premises, or at a school function under the jurisdiction of the State Educational Agency or a school district;

 

Knowingly has or uses illegal drugs (see the definition below), or sells or solicits the sale of a controlled substance, (see the definition below), while at school, on school premises, or at a school function under the jurisdiction of the State Educational Agency or a school district; or

 

Has inflicted serious bodily injury (see the definition below) upon another person while at school, on school premises, or at a school function under the jurisdiction of the State Educational Agency or a school district.

 

Definitions

 

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 (21 U.S.C. 812(c)).

 

Illegal drug means a controlled substance; but does not include a controlled 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 that Act or under any other provision of Federal law.

 

Serious bodily injury has the meaning given the term ‘‘serious bodily injury’’ under paragraph (3) of subsection (h) of section 1365 of title 18, United States Code.

 

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.

 

Notification

 

On the date it makes the decision to make a removal that is a change of placement of your child because of a violation of a code of student conduct, the school district must notify you of that decision, and provide you with a procedural safeguards notice.

 

CHANGE OF PLACEMENT BECAUSE OF

DISCIPLINARY REMOVALS

34 CFR §300.536

 

A removal of your child with a disability from your child’s current educational placement is a change of placement if:

 

The removal is for more than 10 school days in a row; or

 

Your child has been subjected to a series of removals that constitute a pattern because:

 

The series of removals total more than 10 school days in a school year;

 

Your child’s behavior is substantially similar to the child’s behavior in previous incidents that resulted in the series of removals; and

 

Of such additional factors as the length of each removal, the total amount of time your child has been removed, and the proximity of the removals to one another.

 

Whether a pattern of removals constitutes a change of placement is determined on a case-by-case basis by the school district and, if challenged, is subject to review through due process and judicial proceedings.

 

DETERMINATION OF SETTING

34 CFR § 300.531

 

The individualized education program (IEP) Team determines the interim alternative educational setting for removals that are changes of placement, and removals under the subheadings Additional authority and Special circumstances.

 

APPEAL

34 CFR § 300.532

 

General

 

You may file a due process complaint (see the heading Due Process Complaint

Procedures) to request a due process hearing if you disagree with:

 

Any decision regarding placement made under these discipline provisions; or

 

The manifestation determination described above.

 

The school district may file a due process complaint (see above) to request a due process hearing if it believes that maintaining the current placement of your child is substantially likely to result in injury to your child or to others.

 

Authority of hearing officer

 

A hearing officer that meets the requirements described under the subheading Impartial hearing officer must conduct the due process hearing and make a decision. The hearing officer may:

 

Return your child with a disability to the placement from which your child was removed if the hearing officer determines that the removal was a violation of the requirements described under the heading Authority of School Personnel, or that your child’s behavior was a manifestation of your child’s disability; or

 

Order a change of placement of your child with a disability to an appropriate interim alternative educational setting for not more than 45 school days if the hearing officer determines that maintaining the current placement of your child is substantially likely to result in injury to your child or to others.

 

These hearing procedures may be repeated, if the school district believes that returning your child to the original placement is substantially likely to result in injury to your child or to others.

 

Whenever you or a school district files a due process complaint to request such a hearing, a hearing must be held that meets the requirements described under the headings Due Process Complaint Procedures, Hearings on Due Process Complaints, For two tiered States, add “and Appeal of decisions; impartial review,” except as follows:

 

The State Educational Agency or school district must arrange for an expedited due process hearing, which must occur within 20 school days of the date the hearing is requested and must result in a determination within 10 school days after the hearing.

 

Unless you and the school district agree in writing to waive the meeting, or agree to use mediation, a resolution meeting must occur within  seven  calendar days of receiving notice of the due process complaint. The hearing may proceed unless the matter has been resolved to the satisfaction of both parties within 15 calendar days of receipt of the due process complaint.

 

A State may establish different procedural rules for expedited due process hearings than it has established for other due process hearings, but except for the timelines, those rules must be consistent with the rules in this document regarding due process hearings.

 

You or the school district may appeal the decision in an expedited due process hearing in the same way as for decisions in other due process hearings (see the heading Appeal).

 

PLACEMENT DURING APPEALS

34 CFR §300.533

 

When, as described above, you or the school district file a due process complaint related to disciplinary matters, your child must (unless you and the State Educational Agency or school district agree otherwise) remain in the interim alternative educational setting pending the decision of the hearing officer, or until the expiration of the time period of removal as provided for and described under the heading Authority of School Personnel, whichever occurs first.

 

PROTECTIONS FOR CHILDREN NOT YET ELIGIBLE FOR

SPECIAL EDUCATION AND RELATED SERVICES

34 CFR §300.534

 

General

 

If your child has not been determined eligible for special education and related services and violates a code of student conduct, but the school district had knowledge (as determined below) before the behavior that brought about the disciplinary action

occurred, that your child was a child with a disability, then your child may assert any of the protections described in this notice.

 

Basis of knowledge for disciplinary matters

 

A school district will be deemed to have knowledge that your child is a child with a disability if, before the behavior that brought about the disciplinary action occurred:

 

You expressed concern in writing to supervisory or administrative personnel of the appropriate educational agency, or to your child’s teacher that your child is in need of special education and related services;

 

You requested an evaluation related to eligibility for special education and related services under Part B of IDEA; or

 

Your child’s teacher or other school district personnel expressed specific concerns about a pattern of behavior demonstrated by your child directly to the school district’s director of special education or to other supervisory personnel of the school district.

 

Exception

 

A school district would not be deemed to have such knowledge if:

 

You have not allowed an evaluation of your child or have refused special education services; or

 

Your child has been evaluated and determined to not be a child with a disability under Part B of IDEA.

 

Conditions that apply if there is no basis of knowledge

 

If prior to taking disciplinary measures against your child, a school district does not have knowledge that your child is a child with a disability, as described above under the sub- headings Basis of knowledge for disciplinary matters and Exception, your child

may be subjected to the disciplinary measures that are applied to children without disabilities who engage in comparable behaviors.

 

However, if a request is made for an evaluation of your child during the time period in which your child is subjected to disciplinary measures, the evaluation must be conducted in an expedited manner.

 

Until the evaluation is completed, your child remains in the educational placement determined by school authorities, which can include suspension or expulsion without educational services.

 

If your child is determined to be a child with a disability, taking into consideration information from the evaluation conducted by the school district, and information provided by you, the school district must provide special education and related services in accordance with Part B of IDEA, including the disciplinary requirements described above.

 

REFERRAL TO AND ACTION BY LAW ENFORCEMENT AND

JUDICIAL AUTHORITIES

34 CFR §300.535

 

Part B of IDEA does not:

 

Prohibit an agency from reporting a crime committed by a child with a disability to appropriate authorities; or

 

Prevent State law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability.

 

Transmittal of records

 

If a school district reports a crime committed by a child with a disability, the school district:

 

Must ensure that copies of the child’s special education and disciplinary records are transmitted for consideration by the authorities to whom the agency reports the crime; and

 

May transmit copies of the child’s special education and disciplinary records only to the extent permitted by the Family Educational Rights and Privacy Act (FERPA).

 

GENERAL

34 CFR §300.148 – Requirements for Unilateral Placement By Parents of Children in Private Schools at Public Expenses

 

Part B of IDEA does not require a school district to pay for the cost of education, including special education and related services, of your child with a disability at a private school or facility if the school district made a free appropriate public education (FAPE) available to your child and you choose to place the child in a private school or facility. However, the school district where the private school is located must include your child in the population whose needs are addressed under the Part B provisions regarding children who have been placed by their parents in a private school under 34 CFR §§300.131 through 300.144.

 

Reimbursement for private school placement

 

If your child previously received special education and related services under the authority of a school district, and you choose to enroll your child in a private preschool, elementary school, or secondary school without the consent of or referral by the school district, a court or a hearing officer may require the agency to reimburse you for the cost of that enrollment if the court or hearing officer finds that the agency had not made a

free appropriate public education (FAPE) available to your child in a timely manner prior to that enrollment and that the private placement is appropriate. A hearing officer or court may find your placement to be appropriate, even if the placement does not meet the State standards that apply to education provided by the State Educational Agency and school districts.

 

Limitation on reimbursement

 

The cost of reimbursement described in the paragraph above may be reduced or denied:

 

If: (a) At the most recent individualized education program (IEP) meeting that you attended prior to your removal of your child from the public school, you did not inform the IEP Team that you were rejecting the placement proposed by the school district to provide FAPE to your child, including stating your concerns and your intent to enroll your child in a private school at public expense; or (b) At

least 10 business days (including any holidays that occur on a business day) prior to your removal of your child from the public school, you did not give written notice to the school district of that information;

 

If, prior to your removal of your child from the public school, the school district provided prior written notice to you of its intent to evaluate your child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but you did not make the child available for the evaluation;  or

 

Upon a court’s finding that your actions were unreasonable.

 

However, the cost of reimbursement:

 

Must not be reduced or denied for failure to provide the notice if: (a) The school prevented you from providing the notice; (b) You had not received notice of your responsibility to provide the notice described above; or (c) Compliance with the requirements above would likely result in physical harm to your child; and

 

May, in the discretion of the court or a hearing officer, not be reduced or denied for your failure to provide the required notice if: (a) You are not literate or cannot write in English; or (b) Compliance with the above requirement would l