Ch. 4: Understanding and Exercising Your Legal Rights

Right Of Education - Special Education Law

Who is this for?

This chapter is for parents who have officially requested that the school district evaluate their child for the presence of a disability and for parents who have already given the district permission to do so.

Why is this important?

Once it has been established that a child will be evaluated, the school is required by law to give parents a copy of the "Procedural Safeguards Notice." This written document tells parents what legal rights they have in order to make sure that their child receives the services that he or she needs.

What can parents do?

Parents can contact the Parent Training and Information Center (PTI) in their state for a more detailed explanation of the Procedural Safeguards Notice.

IDEA Words and Terms to Know

Parent:

A natural, adoptive or foster parent; an individual acting in the place of a natural or adoptive parent; an individual who is legally responsible for the child; a guardian; or a surrogate parent.

Prior Written Notice:

A written notice that the school must provide to the parents of a student with a disability within a reasonable time if they wish to:

Evaluate the student
Determine whether the student is eligible for special education services
Change the student's evaluation or educational placement or educational plan (IEP)
Refuse the parents' request to evaluate their child or change their child's educational plan (IEP) or placement.

In the last chapter on Referral/Request for Evaluation, you learned about the process involved in making a formal request for an evaluation of your child. That request, once made, triggers a requirement for your school district to provide you with a copy of a notice known as the Procedural Safeguards Notice — a formal document that describes the rights and protections of both you and your child.

The federal IDEA law promotes parents' involvement in the education of their child, and it incorporates parents' and children's rights as well as certain protections for these rights. These protections are embedded in the procedures that states are required to follow as they evaluate students and provide special education services. Collectively, these protections are called procedural safeguards.

Since state laws also govern special education services, procedural safeguards notices may be different across states and school districts. However, all procedural safeguards notices must include the safeguards of parents' and students' rights that are required by IDEA (see table below).

The Procedural Safeguards Notice, containing all of the information required by IDEA, must be provided to parents at very specific points along the way. IDEA 2004 changed the points at which the school must provide parents with the Procedural Safeguards Notice and reduced the number of times a parent must get the notice. However, parents may request a copy of the Procedural Safeguards Notice at any time. (Many states place a copy of the procedural safeguards notice on their website.)

Schools must provide a copy of the Procedural Safeguards Notice:

Upon initial referral or parental request for evaluation
Once each school year (for students eligible for IDEA services)
When parents first file a complaint (either a state complaint or due process complaint)
When the student is removed from his or her current educational placement because of a violation of a code of conduct
Upon request by the parent.

The Procedural Safeguards Notice must be written in the native language of the parents (unless it is clearly not feasible to do so) and it must be written in a way that is easy to understand.

Parent Perspective: Those Three Words: Prior Written Notice

Alex from Delaware tells of the importance of knowing — and understanding — your rights. Listen to this podcast or read the transript.

The Procedural Safeguards Notice must contain information about...	Which means that...
Parents' rights to obtain independent educational evaluations (IEE)* (*An IEE at public expense may be requested whenever a parent disagrees with an evaluation that has been conducted by the school. Parents are entitled to only one IEE each time the school conducts an evaluation.)	You have the right to have your child evaluated by professionals from outside the school district if you disagree with an evaluation that has been conducted by the school district. The school district is required to allow outside evaluations but is not required to accept the results. Generally, you must pay for this evaluation; however, if it is determined that the school district's prior evaluation was inappropriate, you will be reimbursed for the cost of the evaluation. (Be sure to learn about your state or district policy regarding IEE.)
parents' rights to receive prior written notice any time the school district plans to evaluate the student, schedules a meeting where decisions will be made about the student's eligibility or educational placement or refuses to evaluate or change the student's plan or placement.	The school district is required to notify you beforehand if they wish to: Evaluate your child Determine whether your child is eligible for special education services Change your child's evaluation or educational placement or plan. If you request evaluations and changes in your child's educational plan or placement, and if the school district refuses, they must give you prior written notice that explains their decision.
parents' rights to consent to evaluations and to the school providing special education services	The school district must obtain your written, informed consent before they can evaluate your child or begin to provide special education services to your child (following initial evaluation and eligibility). Their request for your consent must include specific information about the proposed activity and it must be presented in a way that is understandable to you. Until you give them your written consent, they are not required to provide special education services. You may consent to all or some of the services offered by the school. If there are some services you do not want your child to have, the school district must still provide the services to which you do consent.
parents' rights to have access to their child's educational records	You have the right to see your child's educational records, to have copies and to have the records explained to you by school officials. If the records contain inaccurate or misleading information, you may ask that they be changed or make a written request for a hearing to challenge the information. School districts may release your child's records without your consent to other school officials or teachers who have legitimate educational interests in your child. They may also release records without consent in health or safety emergencies. If your child transfers to another district, the school district may release the records if you are informed that the records will be forwarded and have a chance to request the records and challenge any misinformation.
parents' rights to present and resolve a complaint through the due process complaint and state complaint process, including: The time period parents have in which to make a complaint How the school district or state may resolve the complaint The difference between the due process and state complaint procedures The availability of mediation services The student's educational placement while the complaint is being resolved.	You must present complaints within two years of the alleged action (or within the period specified by your state's law). Note: In this context, a "complaint" is a legal document that states a plaintiff's case against a defendant. Procedures for resolving parents' complaints against school districts include: Mediation Resolution meetings Due process hearings Appeals to state or federal courts. While your complaint is being resolved, your child will remain in his or her present educational placement unless you and the school district agree otherwise, or if other circumstances apply. (See Chapter 11 for details.) Each state must also have a state complaint procedure that individuals or organizations may use to file complaints against a school district or districts. (See Chapter 11 for details.)
students' rights regarding the process to determine if they can be placed in an interim alternative educational setting.	If your child possesses or attempts to sell a weapon or illegal drugs, or inflicts serious bodily harm on another person at school, on school grounds or at a school function, the school district may place your child in an interim alternative educational setting (IAES), such as an alternative school, for up to 45 school days, without your written consent, whether your child has a disability or not. (See Chapter 11 for details.)
parents' rights regarding unilateral placement in private schools at public expense	If you choose to place your child in a private school without the consent of the school district, the district is not required to pay for the cost of the private school. However, if your child previously received special education from the school district, and it is determined through legal procedures that these services were inappropriate, then the district may be ordered to pay for the private school. (See Chapter 9 for details.)
parents' rights in due process hearings	Both you and the school district have the right to request a due process hearing to resolve a dispute. A due process hearing is a formal legal procedure before an impartial hearing officer or administrative law judge. You may request a due process hearing regarding any proposal or refusal of the school district to: Initiate or change the identification of your child Evaluate your child Educational placement of your child Provide a free, appropriate, public education to your child. (See Chapter 11 for details.)
parents' rights to state-level appeals of decisions made in due process hearings (if applicable in that state)	Some states have a complaint procedure that allows you to file an appeal with the state department of education if you are dissatisfied with the outcome of a due process hearing. These procedures are available through your state education department or Parent Training and Information Center.
parents' rights to bring civil actions against the school district or state, including the time period in which to file such actions	If dissatisfied with the results of a due process hearing, you may file a civil suit against the state or school district within 30 days of a due process hearing. (See Chapter 11 for details.)
parents' rights to reimbursement of attorneys' fees under specific circumstances	When a due process hearing or civil suit results in a judgment that the school district did not provide appropriate services, the judge or hearing officer may order that attorneys' fees paid by the parents be reimbursed by the school district if the fees are not excessive. (See Chapter 11 for details needs new link.)

While these safeguards are complex and can be confusing, it is important when beginning the special education process to know and understand each of these provisions. These are powerful rights that protect your child's right to a free appropriate public education in the least restrictive environment and they should be fully considered and exercised by you. You are the best advocate for your child when you actively participate in the special education process.

Remember, details of these safeguards will vary from state to state, so it's a good idea to contact your state's Parent Training and Information Center for assistance in fully understanding your state's Procedural Safeguards Notice.

The U.S. Department of Education Web site has a model Procedural Safeguards Notice.

In the next chapter you'll learn about the formal evaluation process that must be conducted in order to determine eligibility for special education services under IDEA.

Additional Resource

If parents and schools are to be partners in the education of children with disabilities, clear communication is essential. Although the Individuals with Disabilities Education Act (IDEA) requires schools to tell parents about their rights under the law — referred to as "procedural safeguards notice" — in "understandable language," most are falling short of this requirement, says a study reported in the research journal Exceptional Children. Read this special report about the study and find out how your state's Procedural Safeguards Notice scored.

Table of Contents

This article is from Chapter 4 of IDEA 2004 Parent Guide.

Note: The IDEA Parent Guide was created to provide a basic understanding of the key requirements of the federal law under IDEA. The information presented here is not legal advice and should not be used as a legal resource.

About the Author: Candace Cortiella is Director of The Advocacy Institute (www.AdvocacyInstitute.org), a nonprofit focused on improving the lives of people with disabilities through public policy and other initiatives. The mother of a young adult with learning disabilities, she lives in the Washington, D.C., area.

Chapter 4: Procedural Safeguards — Understanding and Exercising Your Legal Rights