Procedural Safeguards for Children and Parents
Procedural Safeguards Q & A
Amendments of 2004
1. Whose rights are these?
The Missouri State Plan identifies parents as the natural or adoptive parents of the child, or the legal guardian of the child, but not a state agency representative if the child is a ward of the State. This applies to Children's Division (CD), Division of Mental Health (DMH) and residential facility representatives. If a foster parent is assigned to the child, the foster parent has the rights. A surrogate parent will be assigned by the State, if there is no parent or other persons who are legally responsible for the child. The rights of divorced parents are determined by the divorce decree.
The rights are transferred to students at age 18, unless someone has been appointed guardianship due to the student's incompetence. Parents, who can declare the 18-year-old student as a dependent, still have access to educational information, but cannot give consent or appeal educational decisions.
2. When must there be written notice and what is the purpose of the notice?
Notices are given for certain actions proposed by the district (SSD) including whether the district is going to conduct testing to determine if the student is eligible for special education or if the student continues to be eligible for special education services. The district must get written consent before testing can begin.
Parents also must get notice before the district can initiate or change placement or services. The district must have written consent before the initial placement, but not to change placement or services. Placement means the amount of time the student is with non-disabled peers, not the building assignment of the student. Services means the type/amount of special education services, related services, transition services, assistive technology services, and supplemental aides and services that are listed on the student's individualized education program (IEP). Specific curriculum, personnel or methodology are not considered services.
Parents will get notice if the IEP team cannot reach consensus, and the district refuses the parents' educational proposals. Students are entitled to a free (no cost to the parent), appropriate (what the student requires to benefit from the education) public (in a public site or a private agency approved by the State to provide special education services) education. Usually if consensus cannot be reached, it is because of the issue of whether the proposed services are appropriate.
The notice must state the position of the district; show that other options were considered, including the parents' proposal; and why this proposal was rejected. The district must indicate what information was reviewed and any other issues considered in making the decision to reject the proposal. Parents will be told who to contact if they do not understand their rights, including the right to appeal the district's decision.
3. When must you be given a copy of the Procedural Safeguards?
A copy of the procedural safeguards/parents' bill of rights shall be given to the parent, one time a year. Copies of the Procedural Safeguards/Parents' Bill of Rights must be given to parents or students at age 18 at referral for an initial evaluation, suspension for drugs, weapons or serious bodily injury and request for a State due process hearing. A copy must be given whenever requested by the parent. Procedural Safeguards/Parents' Bill of Rights are available in several languages if needed.
4. What if the parent does not give consent for the testing?
School districts can request mediation or a State due process hearing to obtain initial consent. The district asks the panel to order the evaluation without consent. Parents are given an opportunity to present their position at the mediation or hearing. The district can proceed with testing in a reevaluation if the parent does not respond to district attempts to get consent. If the parent refuses consent for the reevaluation assessment, the district can request the due process hearing or pursue mediation.
5. What is an independent educational evaluation (IEE) and when can a parent request one?
Parents can request an independent educational evaluation at public expense if they disagree with the testing conducted by the district. You select who will do the evaluation. However the evaluator must meet certain guidelines. The district will give you a copy of the IEE guidelines, which includes qualifications, cost, and location limitations. The district has the right to request a State hearing to show that the district evaluation is appropriate.
If you choose to have your child evaluated at your expense, the district must consider the results of the testing.
6. Can a parent review their child's educational records?
Parents have the right to inspect and review their child's educational records. This does not necessarily mean a copy of the information, unless failure to provide a copy prevents you from being able to inspect or review. Copies will not be made of copyrighted information, including test protocols. The district must provide access to records without unnecessary delay and within 45 calendar days. If an explanation of the records is requested, a district representative will be available to explain the documents in the file.
Educational records are defined as those records kept by the district regarding the student. An employee's personal notes are not considered educational records.
7. Can the district share educational information without parental written consent?
Districts can share student educational information with district employees who have an educational need to know without consent. Information can also be shared with a school or district where the student plans to transfer, and with public agencies (i.e., CD, Police Department, DESE) that are investigating a health or safety emergency or conducting an audit, or if the records are subpoenaed.
8. How does a parent get information in the educational record amended or removed?
After a parent requests that certain information be amended or removed from the file, the district must respond to the request within a reasonable period of time. The parent will be informed of the decision, and the district will advise of the right to a hearing to challenge the information in the record. This hearing is not a due process hearing, but a hearing under the Family Educational Rights and Privacy Act (FERPA). Parents should contact the Legal ServicesDepartment at 314.989.8143/8135 to issue the request for the amendment. The request can also be faxed to 314.989.8488.
If the district determines that the information should be amended or removed, the parent will be notified of this decision in writing and the district will amend appropriately. If the district decides not to amend or remove the information, the parent can place a statement in the file to be attached to the information giving reasons for the disagreement with the information. The parent comments must be included with the information anytime it is disclosed to any party.
9. Are discipline records part of a student's educational records?
School districts must include in the records a statement of any current or previous disciplinary action and transmit the statement according to the same requirements that apply to students without disabilities. The statement may include a description of the behavior resulting in the disciplinary action, the disciplinary action taken and any other information that is relevant to the safety of the child and others involved with the child. If the student transfers to another school, the transmission of the records must include the current IEP and the statements regarding disciplinary actions.
10. How long must districts keep educational records?
Parents have the right to request that information maintained or used by the district be destroyed three years after it is no longer needed to provide educational services. The district must notify you when personally identifiable information collected, maintained or used is no longer needed to provide educational services. Personally identifiable information includes: the name of the child; the child's parent, or other family members; the address of the child; a personal identifier, such as a social security number or student number; or a list of personal characteristics or other information that would make it possible to identify the child with reasonable certainty.
11. Are districts required to inform parents of meetings regarding their child's special education program?
Districts have to provide proper notification of diagnostic and IEP meetings to enable parents to participate. Parents do not have to be notified of meetings regarding issues such as methodology, lesson plans, or coordination of service provision. Staff can meet to prepare for diagnostic or IEP meetings without parent notification.
Following two attempts to obtain parental attendance at a mutually agreed upon date and time, the IEP meeting or diagnostic meeting can be held without the parents. Parents have to be notified within a reasonable amount of time to give them an opportunity to attend. The notification must include, date, time, purpose, location, district(s) representatives, and the right for the parent and the district(s) to invite individuals to the meeting that they believe have knowledge or special expertise regarding the student.
12. What if I want to appeal the evaluation, placement or the provisions in the IEP that the district is proposing, but do not want to have a due process hearing at this time?
Parent can now request mediation prior to filing for a due process hearing.
13. Can students with disabilities be suspended?
Students with disabilities can be suspended (removed from current placement) for 10 school days or less during the current school year as guided by the school district's policy. In-school suspensions do not count as suspensions if services stipulated in the IEP are provided in the in-school setting. Bus suspensions do not count as suspensions, unless the transportation is considered a related service on the IEP.
If the conduct involves drugs, weapons or serious bodily injury, the student may be suspended for up to 45 school days and placed in an alternative setting, unless the conduct is unrelated to their disability. If unrelated, the district can suspend for more than the 45 school days.
Students can be suspended more than 10 school days if the removal does not result in a “long-term” suspension, based on similar behavior, length, amount, or proximity of the suspensions. Any suspension of more than 10 consecutive school days is always a “long-term” suspension. However, whether a suspension of more than 10 cumulative school days constitutes a “long-term” suspension is determined by school personnel. If considered a “long-term” suspension, special education and access to the general education curriculum that enables the student to progress in general education during the removal must be provided.
14. What is a manifestation determination and when is one conducted?
A manifestation determination is conducted when a student has been suspended more than 10 consecutive school days or when a “long-term” suspension occurs. Parents, district representatives and other “relevant” members of the IEP team meet and determine whether the conduct was caused by, or had a direct and substantial relationship to the child's disability or if the conduct in question was a direct result of the district's failure to implement the IEP.
If the determination is that behavior was not related to the disability. The student can be suspended, but must receive services identified in the IEP, including access to the general curriculum, so that the student can progress in general education. If the determination is that the behavior was related to the student's disability, the student cannot be suspended, unless the behavior involves drugs, weapons, or serious bodily injury (see 13).
15. When do districts need to conduct a functional behavioral assessment and develop a behavioral intervention plan?
The district is only required to conduct a functional behavioral assessment and implement a behavioral intervention plan if the conduct is determined to be related to the disability. Certainly, an IEP team can determine that a functional behavioral assessment and/or behavioral intervention plan is required for any student.
16. What if I disagree with the manifestation determination?
Parents can request an expedited State due process hearing if they disagree with the results of the manifestation determination or any other decision regarding placement in a disciplinary long-term suspension. The student remains in the alternative setting until either the suspension has expired or the hearing is held, whichever comes first.
17. Can districts request an expedited due process hearing?
If a district believes that a student will injure himself or others, the district has the right to request an expedited due process hearing to request a 45 school day interim placement. Districts can also seek a court injunction to remove the student.
18. My child was suspended after I requested an evaluation to determine if he is eligible to receive special education services. Can he be suspended?
If the district had knowledge that a student had a disability prior to suspending, the student has the same rights as a student who is receiving special education services. The district is considered having prior knowledge if: the parent as expressed concerns in writing that the student needs special education services; or the student has demonstrated a need for services; or the parent has requested an evaluation; or the teacher or other staff have expressed concern about the behavior or performance to the director of special education or other supervisory staff.
The district would not be considered as having prior knowledge if an evaluation was conducted and the student was considered ineligible; or if the district gave Notice refusing the parent request for the evaluation; or if the parent has not allowed an evaluation of the child.
Requests for evaluation made after the suspension is in effect, do not impact the suspension; however, if the district agrees to evaluate, the evaluation will be expedited.
19. My child is a student in a private school. Is she entitled to special education services?
Private/parochial/home schooled students can receive special education services, but the Missouri Constitution does not permit public services in a private setting. Students enrolled in a private/parochial or home school in St. Louis County and are identified as disabled under the Missouri State Plan can assess services in a public setting either through dual enrollment in their local St. Louis County School District (if a resident of St. Louis County), or in the Special School District's Special Non-public Access Program (SNAP). These students will not have an IEP, but an Individualized Services Plan (ISP).
20. How do some students receive public special education services in their home or have the public school district pay for their services in a private school?
Some students have been placed on homebound by the IEP team. These students are either too ill to attend school and must have a doctor's confirmation that homebound services are required for medical reasons, or the IEP team has determined that the student's services can best be accessed in the home setting. Both situations require the student to be enrolled as a public school student.
Rarely, there are students who require special education services that cannot be accessed in the public school, and only a State approved private agency can provide the service. The IEP team can then have the student placed in a Private Separate School. These placements are limited to agencies approved by the Missouri Department of Elementary and Secondary Education (DESE) and only after other less restrictive placements have been considered and determined not appropriate due to the severity of the student's disability. The determination of which state-approved agency will serve the student is an administrative decision and not an IEP team decision.
21. What must I do to have the public school district reimburse me for placing my child in a private agency?
A court or hearing panel may require a school district to reimburse a parent for the cost of private enrollment if it is determine that the district did not offer a free, appropriate public education in a timely manner and that the private placement is appropriate. However, the amount may be reduced or denied if at the last IEP meeting, the parents did not inform the IEP team that they were rejecting the district's proposed placement and intend to enroll their child in a private school at public expense.
Parents should give written notice ten business days prior to removing the child from the public school of the rejection of the district's placement and the intent to enroll in a private school at public expense or the court or hearing panel could reject or reduce the amount of reimbursement.
If prior to the child's removal, the district provided a notice of intent to evaluate but the parent did not make the child available or if the court determines that the parent's actions have been unreasonable, the reimbursement may be denied or reduced.
22. How can I appeal decisions made by the district(s)?
If parents or 18 year-old student disagree with the eligibility determination, IEP contents, educational placement, or the free, appropriate, public education proposed by the district(s), the parent can request a resolution conference, mediation, or a State 3-panel due process hearing. The request must involve an alleged violation of no more than two years before the date you knew or should have known about the violation.
You can request mediation to address your concerns by contacting the Missouri Department of Elementary Education (DESE). DESE will notify the district of your request. You and the district must agree on the mediator and determine if the person selection agrees to mediate. You are permitted to bring 3 persons to the mediation.
A State due process hearing is requested through a written request to the Missouri Department of Elementary and Secondary Education (DESE). You must also notify the district that you have filed for the hearing. You can send this notification to the Legal Services Department of the Special School District at 12110 Clayton Road, Town and Country, MO 63131, or by fax at 314.989.8488. Within 10 days of receipt of your complaint, the district must respond specifically to your concerns.
A Resolution Session must be held by the district within 15-days of receiving the notice of your request for a due hearing. You and the district can waive the resolution session or agree to use mediation, if not already attempted prior to filing for the hearing.
If you disagree with the findings and decision of the due process hearing panel, you can appeal in either state or federal court.
23. How do I file a child complaint if I feel that the district(s) is not following state or federal regulations?
Any individual or agency that believes that the district(s) has violated a state or federal regulation implementing the Individuals with Disabilities Education Act (IDEA) can file a signed, written child complaint with DESE. The complaint must state a concern regarding a violation that occurred for not more than one year prior to the complaint and the facts on which the complaint is based. DESE will contact the district(s) for documentation to conduct the investigation and will render a decision within 60 days. Parents can submit additional information, as well.
24. If I hire an attorney, does the district have to pay attorney fees?
If an attorney is hired for any action under the IDEA, a court may award reasonable attorney fees to the parents if the determination is in the parents' favor. A hearing panel cannot award attorney fees. There are exceptions to the award listed in the Procedurals Safeguards.
If the district prevails, the district may file for attorney fees from the parent's attorney if it is determined that the attorney filed a frivolous unreasonable complaint or against the parent or the parent's attorney, if the complaint was filed for an improper purpose.
25. Can I withdraw my son from special education services even if the school feels that he requires them?
Yes, the federal law was amended so that now parents or an adult student [age 18] has the right to request that all special education services be removed. The request must be in writing, and the school must honor the request. In addition, your child will no longer receive any of the related services, modifications or accommodations outlined in the IEP. You do not have the right to remove some of the services and maintain others.
Once removed from services, your child will no longer have the rights outlined in the Procedural Safeguards/Parents' Bill of Rights. If you want services reinstated following the revocation of services, your request is considered an initial request for services and the referral process will be followed.
Additional information about your procedural safeguards can be obtained from the following:
Missouri Parents Act (MPACT)
Special Education Compliance
Download the Procedural Safeguards Notice and/or the Parents' Bill of Rights in other languages by clicking the applicable links below.
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