Federal and state laws create specific rights for those eligible for special education services. A copy of those rights must be given to parents only one time a year, except that a copy must also be given to the parents upon initial referral or parental request for evaluation, upon the first State complaint in a school year and upon the first request for a due process hearing in a school year, when a decision is made to the disciplinary action that constitutes a change of placement, and upon request by a parent. The following is an explanation of those rights. If you would like a further explanation of any of these rights, you may contact the individual named above; your school principal; the special education coordinator in your school system; or your superintendent of schools. You may access another copy of your rights at the State Department of Education (SDE) Web site www.alsde.edu. Once in the Web site, Click on Sections; scroll down to select Special Education; click on Forms, scroll down to select Special Education Rights. If you cannot access the Web site and want another copy of your rights, have any questions, or wish to arrange a conference, please contact the individual named above.
Prior Written Notice
Your education agency must provide you with prior written notice within a reasonable time before it proposes or refuses to initiate or change the identification, evaluation, educational placement, or the provision of a free appropriate public education. The notice must include a full explanation of all of the procedural safeguards available to you; a description of the action proposed or refused by the education agency; an explanation of why your education agency proposes or refuses to take the action; a description of other options considered by the Individualized Education Program (IEP) Team and the reasons why those options were rejected; a description of each evaluation procedure, assessment, record, or report the education agency used as a basis for the proposal or refusal; a description of any other factors which are relevant to the education agency’s proposal or refusal; sources to contact to obtain assistance in understanding the rights for special education; a statement indicating that you have protection under the procedural safeguards; and if the notice sent to you is not the first referral for evaluation, the way by which you may obtain a copy of the procedural safeguards. The written notice must be understandable to the general public and provided in your native language or other mode of communication, unless it is clearly not feasible to do so. If your native language or other mode of communication is not a written language, your education agency must take steps to ensure that the notice is translated orally or by other means to you in your native language or other mode of communication; that you understand the content of the notice; that you are provided sources to contact to obtain assistance in understanding the information; and that there is written evidence that these requirements have been met. If your education agency offers parents the choice of receiving documents by e-mail, you may choose to receive prior written notice by e-mail. Written notice must be provided to you when your child graduates from high school with a regular diploma or exits because he or she has exceeded the age of eligibility for a free appropriate public education.
Parental consent
Your education agency must obtain your informed written consent before conducting an initial evaluation, before the initial provision of special education and related services, or before obtaining additional data as part of a reevaluation. Your consent to an initial evaluation must not be construed as consent for initial provision of special education services and related services. The education agency may, but is not required to use the State procedures for mediation and due process hearings to determine whether initial evaluations or reevaluations may be conducted when you have refused informed written consent. If the hearing officer upholds your education agency, the education agency may evaluate subject to your rights to appeal the decision and the child must remain in the current educational placement awaiting the decision of the appeal unless you and the education agency agree otherwise. If the parent of a child refuses to give consent to the initial provision of special education and related services, or fails to respond to a request for consent, the education agency shall not provide special education and related services to the child by utilizing due process hearing or mediation procedures. In this instance, the education agency will not be considered to be in violation of the requirement to make available a free appropriate public education to the child and is not required to convene an IEP Team meeting or develop an IEP for the child. The same applies if, subsequent to the initial provision of special education and related services, the parent revokes consent in writing and the public agency provides prior written notice before ceasing services. If the parent revokes consent in writing after the initial provision of services, the public agency is not required to amend the child’s education record to remove any references to the child’s receipt of special education and related services because of the revocation of consent.
Your education agency must obtain your informed consent before it reevaluates your child, unless your education agency 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 education agency may, but is not required to, pursue your child's reevaluation by using the mediation and/or due process hearing procedures to seek to override your refusal to consent to your child's reevaluation. As with initial evaluations, your education agency does not violate its obligations under Part B of the IDEA if it declines to pursue the reevaluation in this manner. However, if after at least two attempts to obtain your consent for reevaluation you have not responded, the education agency may proceed with the reevaluation. Your consent is not required before your education agency 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 all parents of all children. An education agency may not use a parent's refusal to consent to one service or activity regarding initial evaluation for special education services to deny the parent or child any other service, benefit, or activity offered by the education agency for all children, except as required by this part. If you are the parent of a child who is home schooled or placed in a private school at your own expense, and you do not provide your informed written consent for your child’s initial evaluation or your child’s reevaluation, or you fail to respond to a request to provide your informed written consent, the education agency shall not use its consent override procedures and it is not required to consider your child as eligible to receive equitable services. Your informed written consent or the informed written consent of an eligible child who has reached the age of majority (Age 19), must be obtained prior to an IEP Team meeting before representatives of participating agencies who may be responsible for providing or paying for transition services may be invited to the IEP Team meeting.
TRANSFER OF PARENTAL RIGHTS AT AGE OF MAJORITY
When a child with a disability reaches the age of majority under State law (Age 19) that applies to all children (except for a child with a disability who has been determined to be incompetent under State law) the education agency must provide any notice required by this part to both the child and the parents; and all rights accorded to parents under Part B of the IDEA transfer to the child; all rights accorded to parents under Part B of the IDEA transfer to children who are incarcerated in an adult or juvenile, State or local correctional institution; and whenever the rights have been transferred, the agency must notify the child and the parents of the transfer of rights.
INDEPENDENT EDUCATIONAL EVALUATION
You have the right to an independent educational evaluation at public expense if you disagree with an evaluation obtained by your education agency. However, your education agency may request a due process hearing to show that its evaluation is appropriate. If the final decision is that the evaluation is appropriate, you still have the right to an independent educational evaluation, but not at public expense. If you obtain an independent educational evaluation at private expense, the results of the evaluation must be considered by your education agency (if it meets agency criteria) in any decision made with respect to the provision of a free appropriate public education and may be presented as evidence at a due process hearing. If a due process hearing officer requests an independent educational evaluation as part of a hearing, the cost of the evaluation will not be at your expense. Each education agency shall provide you, on request, information about where an independent educational evaluation may be obtained and the criteria for the independent educational evaluation. Whenever an independent educational evaluation is at public expense, the standards under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, must be the same as the standards that the education agency uses when it conducts an evaluation. A parent is entitled to only one independent educational evaluation at public expense each time the public agency conducts an evaluation with which the parent disagrees.
DIFFERENCE BETWEEN STATE COMPLAINT AND DUE PROCESS HEARING PROCEDURES
The regulations for Part B of IDEA set forth separate procedures for State complaints and for due process hearings. As explained below, any individual or organization may file a State complaint alleging a violation of any Part B requirement by an education agency, the SDE, or any other public agency. Only you or an education agency may file a due process hearing request 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 to the child. While staff of the SDE generally must resolve a State complaint within a 60 calendar day timeline, unless the timeline is properly extended, an impartial due process hearing officer must hear a due process hearing (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, unless the hearing officer grants a specific extension of the timeline at your request or the education agency’s request.
STATE COMPLAINT PROCEDURES
Any individual or organization has a right to file a signed written complaint alleging that a school system has violated the IDEA or 34 CFR Part 300 and the facts on which the statement is based; to present allegation(s) that occurred not more than one year prior to the date that the complaint is received; to submit additional information either orally or in writing about the allegations in the complaint; to a written decision within 60 calendar days that addresses each allegation in the complaint and contains findings of fact and conclusions and the reasons for the final decision; to an extension of the time limit only if exceptional circumstances exist with respect to a particular complaint; and to procedures for effective implementation of the final decision, if needed, including technical assistance activities, negotiations, and corrective actions to achieve compliance. It is permissible for the timeline to be extended if the parent and the education agency agree to extend the timeline in order to participate in mediation to resolve the state complaint. The education agency will respond to the complaint allegations, at the discretion of the education agency, a proposal to resolve the complaint. An independent onsite investigation will occur as determined appropriate by the SDE, Special Education Services.
If requested, the SDE, Special Education Services, will provide you with a sample form for filing a State complaint. The sample form may also be accessed through the SDE Web site at www.alsde.edu. Click on Sections; scroll down to select Special Education; click on Dispute Resolution; click on 60-Day Special Education Complaint Letter.
You are not required to use the sample form, however your complaint must include: (1) A statement that a public agency has violated a requirement of Part B of the IDEA or of this part; (2) The facts on which the statement is based; (3) The signature and contact information for the complainant; and (4) If alleging violations with respect to a specific child: (a) The name and address of the residence of the child; (b) The name of the school the child is attending; (c) In the case of a homeless child or youth (within the meaning of section 725(2) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434a(2)), available contact information for the child, and the name of the school the child is attending; (d) A description of the nature of the problem of the child, including facts relating to the problem; and (e) A proposed resolution of the problem to the extent known and available to the party at the time the complaint is filed.
The party filing the complaint must forward a copy of the complaint to the LEA or public agency serving the child at the same time the party files the complaint with the State Education Agency (SEA).
If a written complaint is received that is also the subject of a due process hearing, or contains multiple issues of which one or more are part of that hearing, the State must set aside any part of the complaint that is being addressed in the due process hearing until the conclusion of the hearing. However, any issue in the complaint that is not a part of the due process action must be resolved using the time limit and procedures required. If an issue raised in a complaint filed under this section has previously been decided in a due process hearing involving the same parties the due process hearing decision is binding on that issue; and the SEA must inform the complainant to that effect. A complaint alleging a public agency's failure to implement a due process hearing decision must be resolved by the SEA.
State MEDIATION Procedures
You have the right to participate in mediation to resolve disagreements under IDEA with an education agency, whether or not you have requested a due process hearing or have filed a State complaint. The voluntary mediation will be scheduled by the SDE at no cost to you. A qualified impartial mediator trained in effective mediation techniques and selected by rotation will be provided and each mediation session will be scheduled in a timely manner and held in a location convenient to the parties in the dispute. The SDE must have a list of qualified mediators and the mediators must be knowledgeable of the laws and regulations relating to special education and related services. The mediators may not be employees of the SDE or the education agency involved in the education or care of your child and must not have a personal or professional conflict of interest. You may participate without denial or delay of any other rights. If an agreement is reached, a legally binding written agreement that is signed by the parent and a representative of the education agency that has the authority to bind the education agency will state the resolution. All parties sign a confidentiality pledge prior to the beginning of the mediation process to assure confidentiality of mediation discussions and assurance that discussions may not be used as evidence in any later due process hearings or civil proceedings. The mediation agreement is enforceable in any State court of competent jurisdiction or in a district court of the United States. The education agency may develop procedures that offer an opportunity to meet with a disinterested party at a time and location convenient to you if you have chosen not to participate in mediation. The benefits of mediation will be explained by the disinterested party to encourage the use of mediation.
Due Process Hearing Procedures
You may request a due process hearing regarding the education agency’s proposal or refusal to initiate or change the identification, evaluation, educational placement, or the provision of a free appropriate public education. If you request a hearing, you or your attorney must provide a copy of the written request (that must be kept confidential) to the other party and to the SDE. If requested, the SDE, Special Education Services, will provide you with a sample form for requesting a due process hearing. The sample form may also be accessed through the SDE Web site at www.alsde.edu. Click on Sections; scroll down to select Special Education; click on Dispute Resolution; click on Due Process Hearing Request Form.
You are not required to use the sample form, however your request must include: (1) The name of the child; (2) The address of the residence of the child or available contact information in the case of a homeless child; (3) The name of the school the child is attending; (4) A description of the nature of the problem including facts relating to the problem that occurred within two years of the date the parent or the education agency knew or should have known about the alleged action that is the basis for the hearing request; and (5) A proposed resolution of the problem to the extent known and available to you at the time you requested the hearing. The timeline shall not apply to a parent if the parent was prevented from requesting the hearing due to specific misrepresentations by the education agency that it had resolved the problem forming the basis of the written request; or the education agency’s withholding of information from the parent that was required under this part to be provided to the parent. You or the education agency may not have a due process hearing until you (or your attorney), or the education agency, files a due process hearing request that includes all of the information listed above.
The party requesting the hearing shall not be allowed to raise issues at the hearing that were not raised in the written request for a hearing unless the other party agrees otherwise.
The education agency 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 education agency requests a hearing.
In order for a due process hearing to go forward, the request must be considered sufficient. The due process request will be considered sufficient (to have met the content requirements above) unless the party receiving the due process complaint (you or the education agency) 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 5 calendar days of receiving the notification that the receiving party (you or the education agency) considers a due process request insufficient, the hearing officer must decide if the due process request meets the content requirements, and notify you and the education agency in writing immediately.
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