Procedural Safeguards are put in a document that is given to parents at each stage of IEP development, from the Multi-Disciplinary Team meeting to establish a child's eligibility to the final IEP at graduation or age 21. It is the responsibility of the school district to be sure parents have this document in order for them to understand what their rights are in every case.
Although procedural safeguards are dictated by Federal Law, specifically the IDEA, each state is tasked with implementing the act, and each state develops procedures, in step with the law, to protect the rights of children with disabilities, requiring special education services.
The Contents of the Safeguards:
Prior Written Notice
Parents are guaranteed notice in writing from the School District detailing what they intend to do, or not do, in relationships to a child being considered for special education services. This notice needs to be in plain, laymen's language, or in the case of non-English speakers, in their native language.
Consent is approval that is given by a parent in writing, after being fully informed of the action of the district. Consent needs to be obtained for:
- Initial evaluation. The district must make "reasonable efforts" to obtain a parents consent. This usually involves three documented attempts to send paperwork home to the parents, though it may include a documented telephone attempt. If the parent does not respond, the district can assume that it represents implied intent.
- Services. Once the district has decided on what services to provide the student, the parent must sign off on those services. "Services" are really the special education program described in the IEP (Individual Education Plan.)If the parents refuse, the district can pursue due process and ask a hearing officer to approve the recommendations of the district.
- Reevaluation. Federal law requires that the district re-evaluate a child every three years, though a parent can agree to waive the re-evaluation. A child with an intellectual disability (formerly known as "mental retardation") was required to be reevaluated every two years. Once again, the district is required to make a "reasonable effort" to obtain the consent.
Independent Educational Evaluations
The district will evaluate a child for special education services at the request of the parents. If the parents disagree with the results of this evaluation, they can request an independent evaluation by a party not hired by the district. When the parents request this independent evaluation, the district must provide them with the school district's criteria for evaluation, the name/s of independent evaluators. If you request the evaluation be conducted at "Public Expense" (the district pays) the district must either begin due process to contest the request, or provide it at public expense. If the district contests it, it implies that the district believes its evaluation is appropriate. A parent may choose to get an independent evaluation and pay for it themselves. That evaluation can be considered when writing the child's program, if it meets the district's criteria. It can also be used in a due process hearing. If a hearing officer requests the evaluation, it will be done at public expense.
A child's confidentiality is guaranteed by federal law, and the procedural guidelines spell out state law and the precautions required by law.
State Complaints and Mediation
Each state establishes some intermediary step(s) before going directly to due process. In many cases that includes mediation. The district is required to offer mediation, but the family of the child with disabilities is not required to accept it. It is important to remember that the district will be required to pay for legal advice if the family wins their due process. If the family fails, they will owe the legal fees. Mediation may provide a result that the family is happy with, if the district and the family voluntarily come to an agreement, facilitated by a mediator.
Due Process is the procedure by which a family can contest the decisions of a school district if they have made good faith efforts to resolve those differences. Going to due process does not guarantee a family that they will get a result they are happy with, whereas they still have some power over a mediation.
The Procedural Safeguards will describe the steps required to go to due process, as well as the timeline established by the state to guarantee a timely and fair process. It will define the mechanism for filing a due process complaint. It will describe the "model forms" it has created to help you file a complaint, as well.
The state may require a resolution hearing to resolve the dispute before it is turned over to a due process hearing officer.
Due Process: the Procedure
The procedure, the rights of the parents, the settlement, appeals and the timeline. These procedural elements may differ from state to state. It also includes the rights of the parents to compensation for legal representation.
Manifestation Determination is the procedure used to decide whether a child's behavior is related to his or her disability, or can be disciplined with a suspension or an expulsion. This is done in a separate hearing, that determines if the child's placement should be changed. This does not include when drugs or weapons are part of the behavioral complaint, in which case the district can remove the student for 45 to an alternative educational placement.
Alternative Placement by the Parent
Alternative placement is when the parents choose to move their child from a public setting to a private service provider. Sometimes parents will move a child while awaiting the outcome of a due process hearing. Parents can expect reimbursement only if a hearing officer determines that the district failed to offer a Free and Appropriate Public Education. Often the term "appropriate" is the rub, since the district and parents may disagree to the extent to which the placement is in the best interest of the child, therefore "appropriate." The Procedural Safeguards will delineate the circumstances under which the family can expect to be reimbursed, or the steps of compliance which failure would prevent from receiving reimbursement.