Procedural Safeguards

• Parent participation in meetings: 
  Parents of students with disabilities have the right to participate in meetings with respect to:

• The identification, evaluation, and educational placement of the child; and
• The provision of FAPE to the child.

• Parent involvement in placement decisions: Each local educational agency and school system must ensure that parents of students with disabilities are members of any group that makes decisions on the educational placement of their child.

• Prior notice: The parents of students with disabilities have the right to written notice. Written notice must be given to the parents of a student with a disability at a reasonable time before the local educational agency or school:

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

• Procedural safeguards notice: A copy of the procedural safeguards available to parents of students with disabilities must be given to the parents only one time a school year, except that a copy must also be given to the parents:

• Upon initial referral or parent request for evaluation;
• Upon receipt of the first state complaint and upon receipt of the first due process complaint;
• In accordance with the discipline procedures; and
• Upon request by a parent.

• Independent educational evaluation: When parents of a student with a disability disagree with the educational evaluation conducted by the school, they have the right to obtain an independent educational evaluation of their child at public expense. 

Each public agency must provide to parents (upon request for an independent educational evaluation), information about where an independent evaluation may be obtained, and the agency criteria applicable for independent educational evaluations. 

If the parent obtains an independent educational evaluation, the results of the evaluation:

• Must be considered by the state or local educational agency in any decision made with respect to the provision of FAPE to the child; and
• May be presented by any party as evidence at a hearing on a due process complaint regarding that child.

• Parent right to evaluation at public expense: The parents of a student with a disability have the right to an independent educational evaluation at public (school) expense if the parent disagrees with an evaluation conducted by the school, or if the local educational agency or school system fails to abide by the procedures school systems are mandated to use when evaluating students.

Should the school believe its evaluation was appropriate, the school may initiate a due process hearing. If the result of the hearing is that the school’s evaluation was appropriate, the parents do not have the right to receive the independent evaluation at public (school) expense.

• Requests for evaluations by hearing officers:  If a hearing officer requests an independent educational evaluation as part of a hearing on a due process complaint, the cost of the evaluation must be at public expense.

• Due process hearing: School districts and parents of students with disabilities have the right to request a due process hearing and have their attorney present if they:

• Disagree about any actions involving the identification, evaluation, or placement of students with disabilities, and/or the provision of a Free Appropriate Public Education (FAPE);
• Feel that the school has not followed the procedures mandated under IDEA; and/or
• Want to question the information in their child’s educational records, and/or feel the school violated their procedural safeguards (if the violation adversely affects their child’s education). 

Prior to holding the due process hearing, IDEA mandates that school systems should offer parents the option of resolving their dispute through the mediation process, as long as mediation is not used to deny or delay parents’ right to a due process hearing. Mediation is a dispute-resolving process in which two parties sit together and try to resolve their disagreement with the assistance of a trained mediator who is knowledgeable about the laws and regulations regarding the provision of special education and related services.  If attempts to mediate and reach an agreement are not successful:

The school is expected to schedule and hold a resolution session (within 15 days of receiving notice of the parent’s due process complaint and prior to the initiation of a due process hearing) between the parent, relevant IEP team members, and the school representative to discuss the complaint and try to resolve it. If a resolution is not reached within 30 days of filing the complaint:

• The due process hearing can take place. A hearing officer will be assigned to sit and listen to both parties. At this point, both parents and school can have their attorney present during the due process hearing and bring witnesses if they want to.

No later than 45 days after the request for the due process hearing was granted, the hearing officer must render a decision determining: 1) whether the student in question received a free

appropriate public education (FAPE) that provided meaningful educational benefit; 2) whether the procedural violation impeded the student’s right to receive a FAPE; and 3) whether the procedural violation impeded the parents’ opportunity to participate in educational decision making or caused a deprivation of educational benefits.

Either party has the right to appeal the hearing officer’s decision with the appropriate state agency, followed by filing a civil action lawsuit with the State or Federal court. If the parent wins the lawsuit, the school has to reimburse the parent’s attorney’s fees.

As of 2004, the court can also award attorney’s fees to the school district against parents and parents’ attorneys who file frivolous and unreasonable lawsuits and/or lawsuits that have no foundation.

During this process, parents have the right to have their child remain in his/her present educational placement (unless they agree otherwise) during due process hearing,

• and review all education records about their child with respect to:

• The identification, evaluation, and educational placement of the child; and
• The provision of FAPE to the child.

• Confidentiality: Parents of students with disabilities have the right to have information pertaining to their child’s records kept confidential.