(1)
GENERAL.
(a) The term "Procedural Safeguards Notice"
also refers to the document commonly identified as "Parent Rights" which, must
be given to parents only one time per school year, except that a copy shall
also be given to parents in the following circumstances -
1. Upon initial referral or parent request
for evaluation;
2. Upon receipt of
the first state complaint in a school year;
3. Upon receipt of the first request for a
due process hearing in a school year;
4. Upon notification by the LEA to the parent
of the decision to remove the child from his or her current placement and the
removal constitutes a change of placement under the discipline provisions of
IDEA and state rules because of a violation of a code of student
conduct;
5. Prior to accessing a
child's or parent's public benefits or insurance for the first time;
and
6. Upon request by the parent.
[34 C.F.R. §
300.504(a)(1) - (4)]
7. The parent may elect to receive
the Procedural Safeguard/Parent Rights notice by electronic mail, if the LEA
makes that option available. [34 C.F.R. §
300.505]
(b) The State and each LEA may
place a copy of the Procedural Safeguards/Parent Rights on its web site.
[34 C.F.R. §
300.504(b)]
(c) The content of the notice must include a
full explanation of all the procedural safeguards available relating to:
1. Independent educational
evaluations;
2. Prior written
notice;
3. Parental
consent;
4. Access to education
records;
5. Opportunity to present
and resolve complaints through the State complaint procedures and a due process
hearing including:
(i) The time period in
which to file a complaint or due process hearing;
(ii) The opportunity for the agency to
resolve the complaint; and
(iii)
The difference between the due process hearing and the state complaint process,
including the jurisdiction of each procedure, what issues may be raised, filing
and decisional timelines, and relevant procedures;
6. The availability of mediation;
7. The child's placement during the pendency
of any due process hearing;
8.
Procedures for children who are subject to placement in an interim alternative
educational setting;
9.
Requirements for unilateral placement by parents of children in private school
at public expense;
10. Due process
hearings, including requirements for disclosure of evaluation results and
recommendations;
11. Appeals of due
process hearings, including the time period in which to file those
actions;
12. Attorneys' fees;
[34 C.F.R. §
300.504(c)(1) - (13)]
and
13. Notice provided in a
language understandable to the parents. [34 C.F.R. §
300.504(d)]
(d) Each LEA shall establish and
maintain procedures to provide an opportunity for the parents of a child with a
disability to:
1. Inspect and review all
education records relating to the identification, evaluation, educational
placement and provision of FAPE to the child. [34 C.F.R. §
300.501(a)(1) -
(2)]
2. Participate in meetings with respect to
the identification, evaluation, and educational placement of the child and the
provision of a free appropriate public education (FAPE) to such child.
[34 C.F.R. §
300.501(b)(1)(i) - (ii)]
3. Obtain an independent
educational evaluation of the child. [34 C.F.R. §
300.502]
(e) Each LEA shall establish and
maintain procedures to provide to ensure that parents:
1. Receive notice before the school initiates
or changes (or refuses to initiate or change) the identification, evaluation,
educational placement of the child, or the provision of FAPE to the child.
[34 C.F.R. §
300.503(a)(1) - (2)]
2. Receive notice of places to
contact for assistance in understanding the procedural safeguards/parents'
rights. [34 C.F.R. §
300.503(b)(5)]
3. Receive procedural safeguards notice and a
full explanation of the procedural safeguards. [34 C.F.R. §
300.504(c)]
(2)
PARENTAL
OPPORTUNITY TO EXAMINE RECORDS.
Each LEA shall establish and maintain procedures which permit
the parents of a child with a disability an opportunity to inspect and review
any education records relating to their children that are collected, maintained
or used in the identification, evaluation, educational placement and provision
of a FAPE. These rights include the right to a response from the LEA to
reasonable requests for explanations and interpretations of the records, the
right to request the LEA to provide copies of the records and the right to have
a representative of the parent to inspect and review the records. All rights of
parents to examine education records shall transfer to the child at age 18,
consistent with Rule
160-4-7-.09 Confidentiality of
Personally Identifiable Information. The LEA may presume that the parent has
these rights unless the LEA has been advised that the parent does not have the
authority due to State law governing, guardianship, separation and divorce.
[See 34 C.F.R. §
300.613]
(3)
PARENTAL PARTICIPATION IN
MEETINGS.
(a) The parents of a child
with a disability must be afforded an opportunity to participate in meetings
with respect to the identification, evaluation, educational placement and the
provision of a FAPE to the child. [34 C.F.R. §
300.501(b)(1)]
1. A meeting does not include informal or
unscheduled conversations involving LEA personnel and does not include
conversations on issues such as teaching methodology, lesson plans or
coordination of service provision. [34 C.F.R. §
300.501(b)(3)]
2. A meeting also does not include
preparatory activities that LEA personnel engage in to develop a proposal or to
respond to the parent's proposal that will be discussed at a later meeting.
[34 C.F.R. §
300.501(b)(3)]
3. Each LEA shall ensure that a parent of
each child with a disability is a member of any group that makes decisions on
the educational placement of the parent's child. [34 C.F.R. §
300.501(c)(1)]
(i) If the parents cannot participate in a
meeting in which a decision is to be made relating to the educational placement
of their child, the LEA shall use other methods to ensure their participation,
including individual or conference telephone calls or video conferencing.
[34 C.F.R. §
300.501(c)(3)]
(ii) A placement decision may be made by a
group without the involvement of the parent(s) if the LEA is unable to obtain
their participation in the decision. In this case, the LEA must have a record
of its attempts to ensure their involvement, including information that is
consistent with Rule
160-4-7-.06 Individualized Education
Program. [34 C.F.R. §
300.501(c)(4)]
4. The LEA shall make reasonable
efforts to ensure that the parents understand and are able to participate in
any group discussions relating to the educational placement of their child,
including arranging for an interpreter for parents with deafness or whose
native language is other than English. [34 C.F.R. §
300.322(e)]
(b) Each LEA must provide notice
consistent with Rule
160-4-7-.06(11)(a) and
(b) Individualized Education Program to
ensure that parents of children with disabilities have the opportunity to
participate in meetings described in (3)(a) above. [34 C.F.R. § 501(b)(2)
]
(4)
INDEPENDENT
EDUCATIONAL EVALUATION.
As used in this section, independent educational evaluation
means an evaluation conducted by a qualified examiner who is not employed by
the LEA responsible for the education of the child with a disability in
question. As used in this section, public expense means that the LEA pays for
the full cost of the evaluation or ensures that the evaluation is otherwise
provided at no cost to the parents. [34 C.F.R. §
300.502(a)(3)(i) -
(ii)]
(a) The parent(s) has/have the right to an
independent educational evaluation at public expense if the parent(s)
disagree(s) with an evaluation conducted/obtained by the LEA, subject to the
conditions in paragraphs (a)(1) - (3) of this section. [34 C.F.R. §
300.502(b)(1)]
1. If a parent requests an independent
educational evaluation at public expense, the LEA must, without unnecessary
delay either, initiate an impartial due process hearing to show that its
evaluation is appropriate, or ensure that an independent educational evaluation
is provided at public expense, unless the LEA demonstrates in a hearing that
the evaluation obtained by the parent did not meet agency criteria.
[34 C.F.R. §
300.502(b)(2)(i) - (ii)]
2. If the final decision is that
the LEA's evaluation is appropriate, the parent(s) still has/have the right to
an independent educational evaluation but not at public expense. [34 C.F.R. §
300.502(b)(3)]
3. If a parent requests an independent
educational evaluation, the LEA may ask for the parent's reason why he or she
objects to the public evaluation. However, the explanation by the parent may
not be required and the LEA may not unreasonably delay either providing the
independent educational evaluation at public expense or initiating an impartial
due process hearing to defend the LEA evaluation. [34 C.F.R. §
300.502(b)(4)]
4. The LEA must provide to the parents, upon
request, information about where an independent educational evaluation may be
obtained and the LEA's criteria applicable for independent educational
evaluations. [34 C.F.R. §
300.502(a)(2)]
(b) If the parent obtains an
independent educational evaluation at public or private expense, the results of
the evaluation:
1. Shall be considered by the
LEA, if it meets state and LEA criteria, in any decision made with respect to
the provision of a FAPE to the child; and
2. May be presented by either party as
evidence at an impartial due process hearing under these Rules regarding that
child. [34 C.F.R. §
300.502(c)(1) - (2)]
(c) If the
administrative law judge or hearing officer conducting the impartial due
process hearing requests an independent educational evaluation as part of a
hearing, the cost of the evaluation shall be at public expense. [34 C.F.R. §
300.502(d)]
(d) Whenever the state or LEA pays for an
independent educational evaluation, the criteria under which the evaluation is
obtained, including the location of the evaluation and the qualifications of
the examiner, shall be the same as the criteria which the state or LEA uses
when it initiates an evaluation. Except for the criteria described in this
Rule, a LEA may not impose conditions or timelines related to obtaining an
independent educational evaluation at public expense. [34 C.F.R. §
300.502(e)(1)
- (2)]
(e) A parent is entitled to only one
independent education evaluation at public expense each time the LEA conducts
an evaluation with which the parent disagrees. [34 C.F.R. §
300.502(b)(5)]
(5)
NOTICE TO
PARENTS/GUARDIAN/SURROGATE.
(a) The
parents shall be provided notice written in language understandable to the
general public a reasonable time before the LEA proposes to initiate or change
the identification, evaluation or educational placement of a child or the
provision of a FAPE to the child. Written notice shall also be provided if the
LEA refuses to take such action. After rights have been transferred to a child
whohas reached the age of majority, any written notice covered under this Rule
shall be provided to both the child and to the parent(s) of the child.
[34 C.F.R. §
300.503(a) & (c);
34 C.F.R. §
300.625(c)]
(b) LEAs shall provide a full explanation of
all procedural safeguards/parents' rights available to
the parent(s). The communication to the parent(s) shall include a description
of the action proposed or refused by the LEA, an explanation of why the LEA
proposes or refuses to take the action, and a description of any options the
LEA considered and the reasons why those options were rejected. Communication
to the parent(s) shall include a description of each evaluation procedure,
assessment, record or report the LEA used as a basis for the proposed or
refused action. Also included shall be a description of any other factors which
are relevant to the LEA's proposal or refusal, a statement that the parent(s)
of a child with a disability has protection under the procedural
safeguards/parents' rights, a statement of the means by which a copy of the
procedural safeguards/parents' rights may be obtained, and information
providing sources to contact for assistance in understanding the procedural
safeguards/parents' rights. [34 C.F.R. §
300.503(b)]
(c) In most cases, the above
Noticerequirements can be addressed by providing the parent(s) with a copy of
documents such as the consent to evaluate, consent for placement, consent for
accessing a child's or parent's public benefits or insurance, evaluation
report, eligibility report, invitation to a meeting, the full individualized
education program (IEP) (with minutes, if taken), and/or other relevant
documents, as appropriate. However, there may be circumstances when a parent
makes a request but these items have not yet been generated for the child. In
such a case, the LEA must respond to the request through an alternative manner,
such as through a letter to the parent(s), which provides all of the required
elements identified in paragraph (5)(b) above.
(d) Graduation from high school with a
regular education diploma constitutes a change in placement and requires
written prior notice, in accordance with information above. [34 C.F.R. §
300.102(a)(3)]
(e) Language Understandable to the General
Public.
1. Each LEA shall ensure that the
notice required in this rule shall be written in language understandable to the
general public. [34 C.F.R. §
300.503(c)(1)(i)]
2. Provided in the native language of the
parent or other mode of communication used by the parent, unless it is clearly
not feasible to do so. [34
C.F.R. §
300.503(c)(1)(ii)]
3. If the native language or other
mode of communication of the parent is not a written language, the public
agency must take steps to ensure the notice is translated orally or by other
means to the parent in his or her native language or other mode of
communication;
(i) The LEA must ensure the
parent understands the content of the notice; and
(ii) That there is written evidence that the
requirements have been met. [34 C.F.R. §
300.503(c)(2)(i) -
(iii)]
(6)
CONSENT.
(a) At a minimum, informed parental consent
shall be obtained before:
1. Conducting an
initial evaluation to determine if the child qualifies as a child with a
disability; [34 C.F.R. §
300.300(a)(1)(i)]
2. Conducting any re-evaluation of a child
with a disability; [34
C.F.R. §
300.300(c)(1)(i)]
3. Providing initial special
education and related services to a child with a disability; [34 C.F.R. §
300.300(b)(1)]
(i) Consent to provide special education and
related services is the consent for any special education and related services
described in the IEP to provide FAPE.
(ii) Annual decisions about what services are
to be provided are made through the IEP process and are not part of this
consent requirement.
4.
Disclosing personally identifiable information under conditions described in
Rule 160-4-7-.08
Confidentiality of Personally Identifiable Information; and [See
34 C.F.R. §
300.622(a) - (b)]
5. Accessing a child's or parent's public
benefits or insurance for the first time as described in Rule
160-4-7-.02 Free Appropriate Public
Education (FAPE). [See 34
CFR §
300.154(d)(iv)]
(b) Except for an
initial evaluation, initial placement, and re-evaluation, consent is not
required as a condition of any benefit to the parent(s) or child.
(c) Consent for initial evaluation shall not
be construed as consent for initial provision of special education and related
services. [34 C.F.R. §
300.300(a)(1)(ii)]
(d) The LEA must make reasonable
efforts to obtain the informed consent from the parent for an initial
evaluation to determine whether the child is a child with a disability.
[34 C.F.R. §
300.300(a)(1)(iii)]
(e) For initial evaluations only,
if the child is a ward of the state and is not residing with the child's
parent, the LEA is not required to obtain informed consent from the parent for
an initial evaluation to determine whether the child is a child with a
disability if:
1. Despite reasonable efforts
to do so, the LEA cannot discover the whereabouts of the parent of the
child;
2. The rights of the parents
of the child have been terminated in accordance with state law;
3. The rights of the parent to make
educational decisions have been subrogated by a judge in accordance with state
law and consent for an initial evaluation has been given by an individual
appointed by the judge to represent the child. [34 C.F.R. §
300.300(a)(2)(i) -
(iii)]
(f) If the parent of a child in public school
or seeking to enroll in public school does not provide consent for initial
evaluation or the parent fails to respond to a request to provide consent, the
LEA may, but is not required to pursue, the initial evaluation by utilizing the
procedural safeguards of mediation or due process hearings. [34 C.F.R. §
300.300(a)(3)(i)]
1. The LEA does not violate its obligations
under Child Find if it declines to pursue the evaluation. [34 C.F.R. §
300.300(a)(3)(ii)]
(g) A LEA that is
responsible for making FAPE available to a child with a disability must obtain
informed consent from the parent of the child before the initial provision of
special education and related services to the child. [34 C.F.R. §
300.300(b)(1)]
(h) If the parents of a child fail to respond
or refuse to consent to services, the LEA may not utilize the procedural
safeguards of mediation or a due process hearing in order to obtain agreement
that service may be provided. [34 C.F.R. §
300.300(b)(3)]
1. If the parents of the child do not provide
consent for the initial provision of special education and related services, or
the parents fail to respond to a request to provide consent for the initial
provision of special education and related services, the LEA will not be
considered in violation of the requirement to make FAPE available to the child
for which the LEA sought consent. [34 C.F.R. §
300.300(b)(4)(i)]
2. The LEA is not required to convene an IEP
Team meeting or develop an IEP for the child for whom the LEA requests consent.
[34 C.F.R. §
300.300(b)(4)(ii)]
(i) The LEA must obtain
informed parental consent prior to conducting a re-evaluation of a child with a
disability. [34 C.F.R. §
300.300(c)(1)(i)]
1. If the parent refuses to consent to the
re-evaluation, the LEA may, but is not required to, pursue the re-evaluation by
using the consent override procedures by accessing the mediation or due process
hearing procedures. [34
C.F.R. §
300.300(c)(1)(ii)]
(i) The LEA does not violate its obligation
if it declines to pursue the re-evaluation. [34 C.F.R. §
300.300(c)(1)(iii)]
2. The LEA need not
obtain informed parental consent if it can demonstrate that:
(i) It made reasonable efforts to obtain such
consent;
(ii) The child's parents
failed to respond. [34
C.F.R. §
300.300(c)(2)(i) -
(ii)]
3. Parental consent is not required before:
(i) Reviewing existing data as a part of an
evaluation or re-evaluation; or
(ii) Administering a test or other evaluation
that is administered to all children unless consent is required of parents of
all children. [34 C.F.R. §
300.300(d)(1)(i) - (ii)]
(j) A LEA
may not use a parent's refusal to consent to one service or activity under
subparagraph (d) - (f) of paragraph 6 of this Rule to deny the parent or child
any other service, benefit, or activity of the LEA. [34 C.F.R. §
300.300(d)(3)]
(k) If the parent of a child who is home
schooled or placed in a private school by the parents at their own expense does
not provide consent for the initial evaluation or reevaluation, or the parent
fails to respond to a request to provide consent, the LEA may not use the
consent override procedures described in this rule; [34 C.F.R. §
300.300(d)(4)(i)]
1. The LEA is not required to consider the
child as eligible for services.
[34 C.F.R.
§
300.300(d)(4)(ii)]
2. To meet the reasonable efforts
requirement in the consent section of this rule, the LEA must document its
attempts to obtain parental consent. [34 C.F.R §
300.300(d)(5)]
(l) A parent may revoke consent
for the receipt of special education and related services once the child is
initially provided special education and related services.
1. Revocation of consent to provide special
education and related services is for all special education and related
services; not individual services.
2. The intent to withdraw the child from
special education and related services must be made in writing by the parent to
the LEA. [34 C.F.R §
300.300(b)(4)]
3. The LEA may not continue to provide
special education and related services to the child, but must, prior to
removing the child from special education and related services, provide the
parent prior written notice that meets the requirements of paragraph (5) of
this rule.
4. The LEA may not use
the procedures of mediation or due process hearings to override the withdrawal
of consent.
5. The LEA will not be
in violation of the responsibility to provide a free and appropriate public
education (FAPE) to a child with a disability because of the failure to provide
further special education and related services.
6. The LEA is not required to convene an IEP
meeting for a child whose consent to receive special education and related
services has been revoked.
7.
Subsequent referrals for special education and related services shall be
considered an initial evaluation and subject to the sixty day evaluation time
period.
8. The LEA is not required
to amend the records of the child to remove any references to the provision of
special education and related services prior to the receipt of the revocation
of consent. [34 C.F.R §
300.9(c)(3)]
(7)
PARENTAL
TRAINING AND AWARENESS.
(a) Parents may
be provided assistance:
(i) To understand the
special needs of their child and information about child development;
and
(ii) To acquire the necessary
skills to support the implementation of their child's IEP if determined by the
IEP Team as a related service. [34 C.F.R. §
300.34(c)(8)(i) -
(iii)]
O.C.G.A. §
20-2-152;
20-2-240;
20-2-720.