My son has an IEP and has a hearing for a long term suspension. What are his rights?

Question

My son has an IEP and has a hearing for a long term suspension. He is 9 years old. He has temper problems, and sees a therapist on a continued basis, he is on ADHD medication. A neuro-psych consultation determined that he was too young to be diagnosed with anyother behavior disorder, and that he was no bi-polar or anything like that.

So he got in trouble, and hit his principle, which is why he we have to go to a long-term suspension hearing. What does this entail? What are our rights?

Answer 1

You should have gotten a copy of your rights when you got his IEP. If not, its easy to get- call your spec. ed dept or superintendants office and request one.

If the school cannot handle him due to his disabilities, they have to help you find him placement and the state pays for it. If he has an IEP, all of the terms of it have to be met and obviously they aren't being met if he is home due to suspension.

It's a really hard balance for us as parents with kids who can act out due to special cirumstances. Alot of people don't understand how we're feeling. They think if the kid does something like hitting, they need to be punished, but it isnt always so cut and dry.

It sounds like you have alot to handle here. I know its a parents instinct to protect our child and put our all into our child, but dont forget about yourself. If you're frazzled and frustrated he'll sense that.

Answer 2

go to my web site

Answer 3

Well my son who is 13 is bipolar and was diagnosed with it at age 9. He got into alot of trouble i mean alot and he got long term suspened also and hes homeschooled now but at his hearing not to scare you he got put in juvenille for a week then probation for 4 months but hes a teenager the school can press charges against your son get a lawyer good luck hunny. ALso i forgot to mention my son has a IEP and IEP children due have rights under the law let the board hearing memeber know he has a IEP

Answer 4

Your school district is required to not only give you a copy of Procedural Safeguards and Rights as a parent and their policy for disciplinary action for students with IEPs, but to thoroughly explain it to you and answer any questions you may have. That being said, you may not feel as if you will get a straight answer from them. Your next best bet is to go to your state's department of education website and look at the same rights or contact them. You may want to request an advocate from your state department of education to attend any meetings with your district.

The most important thing is determining how your son can be helped and why he is acting out in this way, so he can gain control of his behavior and not have his education interrupted.

Answer 5

Has the school done an FBA  'functional behavioral assesment' ?  Schools are to do this for children with behavioral problems.  The IEP team (and you are a part of this team, don't let them tell you different)  is suppose to use the results of this testing to make a BIP  'behavior intervention plan'  using POSITIVE  behavior disclipline. This will be legal and the school will HAVE to follow the plan IF it is written into the IEP plan.

I think they can NOT suspend him UNTIL they do all this.

From what I understand the school can't suspend a child with an IEP plan for over 10 days.

Please call your state dept of education's specila ed department and ask for info for the 'federally funded parent advocacy agency'

All states have this and it is FREE for parents.

They know the law very well and can tell you what to do each step of the way.

They are very experienced in corruption in special ed done by schools.

Answer 6

most likely you will go before the supertendent and the school board. Either the ***'t principal or the principal will give their case. You can if you want have an attorney come with you.

How old is your child?? IF he is old enought to be dx with ADHD, then he can be dx with other conduct disorders.. He may be placed in the behavior disorder unit

Answer 7

There is a lot of good information here, but a lot of confusion as well.  The best advice that I, or anyone else, can give you is to contact the department of education to check your state's guidelines.  While IDEA is a federal law, all states interpret the legal language differently (whether that is right/wrong, good/bad is a whole other issue!)  I'm sure that the mixed messages from others who have answered are due to the fact that they are coming from different school districts and possibly different states.  

In my district, you can conduct an FBA (functional behavior assessment) at any time, we generally do this after a student has had 5 days of suspension.  The manifestation meeting is to be held once a student has been suspended for 10 days.  Some districts hold this meeting before the student reaches ten days, but legally it isn't required until all ten days have been reached.  If your son has behavioral issues, this should have already been done and your son should have a Behavior Intervention Plan (BIP) as part of his IEP.

No child with an IEP can be suspended, or otherwise removed from his educational placement for greater than 10 school days.  Many exceptions exist, such as the 45-day rule another person mentioned.  What is important to know is that even if your child is removed for 45 days, the school district is  required to continue providing him with his Free and Appropriate Public Education (FAPE).  The IEP team will have to meet to determine if an alternative placement is needed and if his IEP can be met in that placement.

Please remember that you are the most important person on that IEP team!  The school is required to give you a copy of the Procedural Safeguards (which is a lengthy booklet, not 4 pages) at every meeting.  They are also required to provide you with 10 days notice before every meeting, and should attempt to contact you at least 3 times before holding the meeting without you.  You do have the right to waive your ten-day notice to expedite decision-making - but they do not have that right!

Be sure to bring the most recent copy of your son's IEP with you.  You should look it over a head of time if you are not familiar with it.  pay particular attention to the specially designed instruction, classroom and testing accommodations, and Least Restrictive Environment.  See if you can tell if everything in the IEP is being complied with by all of your son's teachers (all means even the art, music, and phys. ed. teachers!).  If the school is out of compliance, you need to bring that up.  Compliance with the IEP may have adverted the trouble to begin with.

Sorry for the lengthy answer, but you need to understand all of this before you go to the hearing.  Remember this above all else - no matter what punishment your son receives for his actions, the school CANNOT deny him his Free and Appropriate Public Education.  If they deem he is unsafe in school, THEY need to come up with (and pay for, if necessary) an alternative, APPROPRIATE educational placement for your son.  And YOU are a key part in that decision-making process!

Good luck, and God bless.

Answer 8

According to federal law, the student can be placed out of school for up to 45 days if his behavior is deemed as possibly causing significant harm to himself or others.  Assaulting the principal might just qualify him for that, whether or not it was a manifestation of his disability although that should be discussed at the hearing you talk about.  Age doesn't matter.  Anyway, if he does get expelled, he will be offered compensatory education, such as possibly an hour of day of special education services with a tutor at a location of your choosing, or an alternative education setting, if your district has that.  This is because special education students can't be denied educational services for more than 10 days.

[Edit]  What is what the thumbs down???  Look it up yourself- see the link below, a child CAN be removed under (3) special circumstances, even if the behavior is a manifestion of his disability.  You don't say how serious the assault was on the principal, so I assumed the worst.  By the way, an FBA is only required if the behavior is found to be a manifestion of the disability- thus the manifest must be held before an FBA is requested, it is not required before a manifestation be held (although many schools use them).

Answer 9

Discipline Procedures

§300.530  Authority of school personnel.

(a)  Case-by-case determination.  School personnel may consider any unique circumstances on a case-by-case basis when determining whether a change in placement, consistent with the other requirements of this section, is appropriate for a child with a disability who violates a code of student conduct.

(b)  General.  

(1)  School personnel under this section may remove a child with a disability who violates a code of student conduct from his or her current placement to an appropriate interim alternative educational setting, another setting, or suspension, for not more than 10 consecutive school days (to the extent those alternatives are applied to children without disabilities), and for additional removals of not more than 10 consecutive school days in that same school year for separate incidents of misconduct (as long as those removals do not constitute a change of placement under §300.536).

(2)  After a child with a disability has been removed from his or her current placement for 10 school days in the same school year, during any subsequent days of removal the public agency must provide services to the extent required under paragraph (d) of this section.

(c)  Additional authority.  For disciplinary changes in placement that would exceed 10 consecutive school days, if the behavior that gave rise to the violation of the school code is determined not to be a manifestation of the child’s disability pursuant to paragraph (e) of this section, school personnel may apply the relevant disciplinary procedures to children with disabilities in the same manner and for the same duration as the procedures would be applied to children without disabilities, except as provided in paragraph (d) of this section.  

(d)  Services.  

(1) A child with a disability who is removed from the child’s current placement pursuant to paragraphs (c), or (g) of this section must--

(i)  Continue to receive educational services, as provided in §300.101(a), so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP; and

(ii)  Receive, as appropriate, a functional behavioral assessment, and behavioral intervention services and modifications, that are designed to address the behavior violation so that it does not recur.

(2)  The services required by paragraph (d)(1), (d)(3), (d)(4), and (d)(5) of this section may be provided in an interim alternative educational setting.

(3)  A public agency is only required to provide services during periods of removal to a child with a disability who has been removed from his or her current placement for 10 school days or less in that school year, if it provides services to a child without disabilities who is similarly removed.

(4)  After a child with a disability has been removed from his or her current placement for 10 school days in the same school year, if the current removal is for not more than 10 consecutive school days and is not a change of placement under §300.536, school personnel, in consultation with at least one of the child’s teachers, determine the extent to which services are needed, as provided in §300.101(a), so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP.  (Deleted consultation with at least one teacher to determine “location” of services.”

(5)  If the removal is a change of placement under §300.536, the child’s IEP Team determines appropriate services under paragraph (d)(1) of this section.

(e)  Manifestation determination.  (Except for removals that will be for not more than 10 consecutive school days and will not constitute a change in placement under §300.536)

(1) Within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct, the LEA, the parent, and relevant members of the child’s IEP Team (as determined by the parent and the LEA) must review all relevant information in the student’s file, including the child’s IEP, any teacher observations, and any relevant information provided by the parents to determine--

(i)  If the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability; or

(ii)  If the conduct in question was the direct result of the LEA’s failure to implement the IEP.

(2)  The conduct must be determined to be a manifestation of the child’s disability if the LEA, the parent, and relevant members of the child’s IEP Team determine that a condition in either paragraph (e)(1)(i) or (1)(ii) of this section was met.

(3)  If the LEA, the parent, and relevant members of the child’s IEP Team determine the condition described in paragraph (e)(1)(ii) of this section was met, the LEA must take immediate steps to remedy those deficiencies.

(f)  Determination that behavior was a manifestation.  If the LEA, the parent, and relevant members of the IEP Team make the determination that the conduct was a manifestation of the child’s disability, the IEP Team must--

(1)  Either-–

(i)  Conduct a functional behavioral assessment, unless the LEA had conducted a functional behavioral assessment before the behavior that resulted in the change of placement occurred, and implement a behavioral intervention plan for the child; or

(ii)  If a behavioral intervention plan already has been developed, review the behavioral intervention plan, and modify it, as necessary, to address the behavior; and

(2)  Except as provided in paragraph (g) of this section, return the child to the placement from which the child was removed, unless the parent and the LEA agree to a change of placement as part of the modification of the behavioral intervention plan.

(g)  Special circumstances.  School personnel may remove a student to an interim alternative educational setting for not more than 45 school days without regard to whether the behavior is determined to be a manifestation of the child’s disability, if the child--

(1)  Carries a weapon to or possesses a weapon at school, on school premises, or to or at a school function under the jurisdiction of an SEA or an LEA;

(2)  Knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school, on school premises, or at a school function under the jurisdiction of an SEA or an LEA; or

(3)  Has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of an SEA or an LEA.

(h)  Notification.  On the date on which the decision is made to make a removal that constitutes a change of placement of a child with a disability because of a violation of a code of student conduct, the LEA must notify the parents of that decision, and provide the parents the procedural safeguards notice described in §300.504.

(i)  Definitions.  For purposes of this section, the following definitions apply:

(1)  Controlled substance means a drug or other substance identified under schedules I, II, III, IV, or V in section 202(c) of the Controlled Substances Act (21 U.S.C. 812(c)).

(2)  Illegal drug means a controlled substance; but does not include a controlled substance that is legally possessed or used under the supervision of a licensed health-care professional or that is legally possessed or used under any other authority under that Act or under any other provision of Federal law.  

(3)  Serious bodily injury has the meaning given the term “serious bodily injury” under paragraph (3) of subsection (h) of section 1365 of title 18, United States Code. The term serious bodily injury means bodily injury that involves—

1.  A substantial risk of death;

2.  Extreme physical pain;

3.  Protracted and obvious disfigurement; or

4.  Protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

(4)  Weapon has the meaning given the term “dangerous weapon” under paragraph (2) of the first subsection (g) of section 930 of title 18, United States Code.  (Authority:  20 U.S.C. 1415(k)(1) and (7)) Dangerous weapon means a weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2 1/2 inches in length.  

In-School Suspension:  It has been the Department’s long term policy that an in-school suspension would not be considered a part of the days of suspension addressed in §300.530 as long as the child is afforded the opportunity to continue to appropriately participate in the general curriculum, continue to receive the services specified on the child’s IEP, and continue to participate with nondisabled children to the extent they would have in their current placement.  This continues to be our policy.  Portions of a school day that a child had been suspended may be considered as a removal in regard to determining whether there is a pattern of removals as defined in §300.536.  

Bus Suspension:  Whether a bus suspension would count as a day of suspension would depend on whether the bus transportation is a part of the child’s IEP.  If the bus transportation were a part of the child’s IEP, a bus suspension would be treated as a suspension under §300.530 unless the public agency provides the bus service in some other way, because that transportation is necessary for the child to obtain access to the location where services will be delivered.  If the bus transportation is not a part of the child’s IEP, a bus suspension is not a suspension under §300.530.  In those cases, the child and the child’s parent have the same obligations to get the child to and from school as a nondisabled child who has been suspended from the bus.  However, public agencies should consider whether the behavior on the bus is similar to behavior in a classroom that is addressed in an IEP and whether the child’s behavior on the bus should be addressed in the IEP or a behavioral intervention plan for the child.

Participation in General Education:  We caution that we do not interpret “participate” to mean that a school or district must replicate every aspect of the services that a child would receive if in his or her normal classroom.  For example, it would not generally be feasible for a child removed for disciplinary reasons to receive every aspect of the services that a child would receive if in his or her chemistry or auto mechanics classroom as these classes generally are taught using a hands-on component or specialized equipment or facilities.  

Amount of Services:   We believe §300.530(d)(4) ensures that children with disabilities removed for brief periods of time receive appropriate services, while preserving the flexibility of school personnel to move quickly to remove a child when needed and determine how best to address the child’s needs.  Paragraph (d)(4) of this section is not intended to imply that a public agency may deny educational services to children with disabilities who have been suspended or expelled for more than 10 school days in a school year, nor is §300.530(d)(4) intended to always require the provision of services when a child is removed from school for just a few days in a school year.  We believe the extent to which educational services need to be provided and the type of instruction to be provided would depend on the length of the removal, the extent to which the child has been removed previously, and the child’s needs and educational goals.  For example, a child with a disability who is removed for only a few days and is performing near grade level would not likely need the same level of educational services as a child with a disability who has significant learning difficulties and is performing well below grade level.  The Act is clear that the public agency must provide services to the extent necessary to enable the child to appropriately participate in the general curriculum and appropriately advance toward achieving the goals in the child’s IEP.  

Location vs Setting: The provisions in §300.530(d)(4) only address the provision of services in those situations where a removal of a child with a disability from the child’s current placement is for a short period of time and the removal does not constitute a change in placement.  In many instances, these short-term removals are for one or two days.  We believe that, in these instances, it is reasonable for appropriate school personnel, in consultation with at least one of the teachers of a child, to determine how best to address the child’s needs during these relatively brief periods of removal.  We believe it would place an unreasonable burden on school personnel to require that the parent be involved in making the determination of the extent to which services are needed for a child removed for such a short period of time.  We do not believe requiring school personnel to make these decisions under these circumstances imposes an unreasonable limitation on a child with a disability’s right to FAPE.  For these reasons, we do not believe §300.530(d)(4) should be revised to require that the parent be included in the consultation.  However, there is nothing in these regulations that would prohibit school personnel, if they choose to do so, from including parents in the consultation.

We are persuaded by the commenters and, therefore, are removing the reference to “location in which services will be provided” in paragraphs (d)(4) and (d)(5) of this section.  

Revised Manifestation Standard:  The revised manifestation provisions in section 615 of the Act provide a simplified, common sense manifestation determination process that could be used by school personnel.  The basis for this change is provided in note 237-245 of the Conf. Rpt., pp. 224-225, which states, “the Conferees intend to assure that the manifestation determination is done carefully and thoroughly with consideration of any rare or extraordinary circumstances presented.”  The Conferees further intended that “if a change in placement is proposed, the manifestation determination will analyze the child’s behavior as demonstrated across settings and across time when determining whether the conduct in question is a direct result of the disability.”  No further clarification is necessary.  The intent of Congress in developing section 615(k)(1)(E) was that, in determining that a child’s conduct was a manifestation of his or her disability, it must be determined that “the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability, and was not an attenuated association, such as low self-esteem, to the child’s disability.”  (Note 237-245 of the Conf. Rpt., p. 225).  The regulation, which follows the statutory language, thus accurately reflects the manner in which the Act describes the behavior of the child is to be considered in the manifestation determination.

Appropriateness of IEP:  The Act no longer requires that the appropriateness of the child’s IEP and placement be considered when making a manifestation determination.  However, the parent of a child with a disability who disagrees with any decision regarding placement or the manifestation determination may request an expedited due process hearing, which must occur within 20 school days of the date the hearing is requested and must result in a determination within 10 school days after the hearing.  

Functional Assessment and Behavior Intervention Plan:  We must recognize that Congress specifically removed from the Act a requirement to conduct a functional behavioral assessment or review and modify an existing behavioral intervention plan for all children within 10 days of a disciplinary removal, regardless of whether the behavior was a manifestation or not. We also recognize, though, that as a matter of practice, it makes a great deal of sense to attend to behavior of children with disabilities that is interfering with their education or that of others, so that the behavior can be addressed, even when that behavior will not result in a change in placement.  In fact, the Act emphasizes a proactive approach to behaviors that interfere with learning by requiring that, for children with disabilities whose behavior impedes their learning or that of others, the IEP Team consider, as appropriate, and address in the child’s IEP, “the use of positive behavioral interventions, and other strategies to address the behavior.”  (See section 614(d)(3)(B)(i) of the Act).  This provision should ensure that children who need behavior intervention plans to succeed in school receive them.  For these reasons, we decline to make the changes suggested.

45-Day Placement: There is nothing in the Act or these regulations that precludes the public agency from requiring the child to fulfill the remainder of the placement when a new school year begins.  

Home Services:    Whether a child’s home would be an appropriate interim alternative educational setting under §300.530 would depend on the particular circumstances of an individual case such as the length of the removal, the extent to which the child previously has been removed from his or her regular placement, and the child’s individual needs and educational goals.  In general, though, because removals under §§300.530(g) and 300.532 will be for periods of time up to 45 days, care must be taken to ensure that if home instruction is provided for a child removed under §300.530, the services that are provided will satisfy the requirements for services for a removal under §300.530(d) and section 615(k)(1)(D) of the Act.  We do not believe, however, that it is appropriate to include in the regulations that a child’s home is not a suitable placement setting for an interim alternative educational setting as suggested by the commenter.  As stated above, the Act gives the IEP Team the responsibility of determining the alternative setting and we believe the IEP Team must have the flexibility to make the setting determination based on the circumstances and the child’s individual needs.

§300.531  Determination of setting.  The child’s IEP Team determines the interim alternative educational setting for services under §300.530(c), (d)(5), and (g).  (Authority:  20 U.S.C. 1415(k)(2))

Home Suspension or Expulsion:  The Act does not require that children with disabilities suspended or expelled for disciplinary reasons continue to be educated with children who are not disabled during the period of their removal.  We believe it is important to ensure that children with disabilities who are suspended or expelled from school receive appropriate services, while preserving the flexibility of school personnel to remove a child from school, when necessary, and to determine how best to address the child’s needs during periods of removal and where services are to be provided to the child during such periods of removals, including, if appropriate, home instruction.  Sections 300.530 through 300.536 address the options available to school authorities in disciplining children with disabilities and set forth procedures that must be followed when taking disciplinary actions and in making decisions regarding the educational services that a child will receive and the location in which services will be provided.  We believe including the language recommended by the commenter would adversely restrict the options available to school personnel for disciplining children with disabilities and inadvertently tie the hands of school personnel in responding quickly and effectively to serious child behaviors and in creating safe classrooms for all children.

§300.532  Appeal.

(a)  General.  The parent of a child with a disability who disagrees with any decision regarding placement under §§300.530 and 300.531, or the manifestation determination under §300.530(e), or an LEA that believes that maintaining the current placement of the child is substantially likely to result in injury to the child or others, may appeal the decision by requesting a hearing.  The hearing is requested by filing a complaint pursuant to §§300.507 and 300.508(a) and (b).

(b)  Authority of hearing officer.  

(1) A hearing officer under §300.511 hears, and makes a determination regarding an appeal under paragraph (a) of this section.

(2)  In making the determination under paragraph (b)(1) of this section, the hearing officer may--

(i)  Return the child with a disability to the placement from which the child was removed if the hearing officer determines that the removal was a violation of §300.530 or that the child’s behavior was a manifestation of the child’s disability; or

(ii)  Order a change of placement of the child with a disability to an appropriate interim alternative educational setting for not more than 45 school days if the hearing officer determines that maintaining the current placement of the child is substantially likely to result in injury to the child or to others.

(3)  The procedures under paragraphs (a) and (b)(1) and (2) of this section may be repeated, if the LEA believes that returning the child to the original placement is substantially likely to result in injury to the child or to others.

(c)  Expedited due process hearing.  (1) Whenever a hearing is requested under paragraph (a) of this section, the parents or the LEA involved in the dispute must have an opportunity for an impartial due process hearing consistent with the requirements of §§300.507 and 300.508(a) through (c) and §§300.510 through 300.514, except as provided in paragraph (c)(2) through (4) of this section.

(2)  The SEA or LEA is responsible for arranging the expedited due process hearing, which must occur within 20 school days of the date the complaint requesting the hearing is filed.  The hearing officer must make a determination within 10 school days after the hearing.

(3)  Unless the parents and LEA agree in writing to waive the resolution meeting described in paragraph (c)(3)(i) of this section, or agree to use the mediation process described in §300.506–-

(i)  A resolution meeting must occur within seven days of receiving notice of the due process complaint; and

(ii)  The due process hearing may proceed unless the matter has been resolved to the satisfaction of both parties within 15 days of the receipt of the due process complaint.

(4)  A State may establish different State-imposed procedural rules for expedited due process hearings conducted under this section than it has established for other due process hearings, but, except for the timelines as modified in paragraph (c)(3) of this section, the State must ensure that the requirements in §§300.510 through 300.514 are met.

(5)  The decisions on expedited due process hearings are appealable consistent with §300.514.

Deleted 2-day disclosure for Expedited Hearings: We are persuaded by the commenters that limiting the disclosure time to two days would significantly impair the ability of the parties to prepare for the hearing, since one purpose of the expedited hearing is to provide protection to the child.  We are removing proposed §300.532(c)(4), which provides an exception to the normal five day disclosure requirement.  

§300.533  Placement during appeals.

When an appeal under §300.532 has been made by either the parent or the LEA, the child must remain in the interim alternative educational setting pending the decision of the hearing officer or until the expiration of the time period specified in §300.530(c) or (g), whichever occurs first, unless the parent and the SEA or LEA agree otherwise.  (Authority:  20 U.S.C. 1415(k)(4)(A))

§300.534  Protections for children not determined eligible for special education and related services.

(a)  General.  A child who has not been determined to be eligible for special education and related services under this part and who has engaged in behavior that violated a code of student conduct, may assert any of the protections provided for in this part if the public agency had knowledge (as determined in accordance with paragraph (b) of this section) that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred.

(b)  Basis of knowledge.  A public agency must be deemed to have knowledge that a child is a child with a disability if before the behavior that precipitated the disciplinary action occurred--

(1)  The parent of the child expressed concern in writing to supervisory or administrative personnel of the appropriate educational agency, or a teacher of the child, that the child is in need of special education and related services;

(2)  The parent of the child requested an evaluation of the child pursuant to §§300.300 through 300.311; or

(3)  The teacher of the child, or other personnel of the LEA, expressed specific concerns about a pattern of behavior demonstrated by the child directly to the director of special education of the agency or to other supervisory personnel of the agency.

(c)  Exception.  A public agency would not be deemed to have knowledge under paragraph (b) of this section if--

(1)  The parent of the child--

(i)  Has not allowed an evaluation of the child pursuant to §§300.300 through 300.311; or

(ii)  Has refused services under this part; or

(2)  The child has been evaluated in accordance with §§300.300 through 300.311 and determined to not be a child with a disability under this part.

(d)  Conditions that apply if no basis of knowledge.

(1)  If a public agency does not have knowledge that a child is a child with a disability (in accordance with paragraphs (b) and (c) of this section) prior to taking disciplinary measures against the child, the child may be subjected to the disciplinary measures applied to children without disabilities who engage in comparable behaviors consistent with paragraph (d)(2) of this section.

(2)  (i)  If a request is made for an evaluation of a child during the time period in which the child is subjected to disciplinary  measures under §300.530, the evaluation must be conducted in an expedited manner.

(ii)  Until the evaluation is completed, the child remains in the educational placement determined by school authorities, which can include suspension or expulsion without educational services.

(iii)  If the child is determined to be a child with a disability, taking into consideration information from the evaluation conducted by the agency and information provided by the parents, the agency must provide special education and related services in accordance with this part, including the requirements of §§300.530 through 300.536 and section 612(a)(1)(A) of the Act.  (Authority:  20 U.S.C. 1415(k)(5))

Early Intervening Services & Basis of Knowledge:  A public agency will not be considered to have a basis of knowledge under §300.534(b) merely because a child receives services under the coordinated, early intervening services in section 613(f) of the Act and §300.226 of these regulations.  The basis of knowledge criteria is clearly stated in section 615(k)(5)(B) of the Act and §300.534.  We do not believe that expanding the basis of knowledge provision, as recommended by the commenter, would be appropriate given the specific requirements in the Act.  However, if a parent or a teacher of a child receiving early intervening services expresses a concern, in writing, to appropriate agency personnel, that the child may need special education and related services, the public agency would be deemed to have knowledge that the child is a child with a disability under this part.

Teacher Expressing Concerns about Student:   Since not all child find and referral processes in States and LEAs would necessarily meet the requirement in section 615(k)(5)(B)(iii) of the Act that the teacher of the child, or other personnel of the LEA, must express specific concerns about a pattern of behavior demonstrated by the child “directly to the director of special education of such agency or to other supervisory personnel of the agency,” we are removing from §300.534(b)(3) the requirement that concerns be expressed in accordance with the agency’s established child find or special education referral system.  We continue to believe the child find and special education referral system is an important function of schools, LEAs, and States.  School personnel should refer children for evaluation through the agency’s child or special education referral system when the child’s behavior or performance indicates that they may have a disability covered under the Act.  Having the teacher of a child (or other personnel) express his or her concerns regarding a child in accordance with the agency’s established child find or referral system helps ensure that the concerns expressed are specific, rather than casual comments, regarding the behaviors demonstrated by the child and indicate that the child may be a child with a disability under the Act.  For these reasons, we would encourage those States and LEAs whose child find or referral processes do not permit teachers to express specific concerns directly to the director of special education of such agency or to other supervisory personnel of the agency, to change these processes to meet this requirement.

Expedited Evaluation:  We do not believe a specific timeline for an expedited evaluation or an eligibility determination should be included in these regulations.  What may be required to conduct an evaluation will vary widely depending on the nature and extent of a child’s suspected disability and the amount of additional information that would be necessary to make an eligibility determination.  However, §300.534(d)(2)(i), consistent with section 615(k)(5)(D)(ii) of the Act, specifies that the evaluation in these instances be “expedited”, which means that an evaluation should be conducted in a shorter period of time than a typical evaluation conducted pursuant to section 614 of the Act, which must be conducted within 60 days of receiving parental consent for the evaluation.  (See section 614(a)(1)(C)(i)(I) of the Act).  Further, we believe it would be inappropriate to specify the timeframe from the completion of an evaluation to the determination of eligibility when there is no specific statutory basis to do so.  The Department has long held that eligibility decisions should be made within a reasonable period of time following the completion of an evaluation.

Services While Awaiting Results of Evaluation:  Section 300.534(d) does not require the provision of services to a child while an expedited evaluation is being conducted, if the public agency did not have a basis of knowledge that the child was a child with a disability.  An educational placement under §300.534(d)(2)(ii) may include a suspension or expulsion without services, if those measures are comparable to disciplinary measures applied to children without disabilities who engage in comparable behavior.  Of course, States and LEAs are free to choose to provide services to children under §300.534(d).  

§300.535  Referral to and action by law enforcement and judicial authorities.

(a)  Rule of construction.  Nothing in this part prohibits an agency from reporting a crime committed by a child with a disability to appropriate authorities or prevents State law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability.

(b)  Transmittal of records.  

(1)  An agency reporting a crime committed by a child with a disability must ensure that copies of the special education and disciplinary records of the child are transmitted for consideration by the appropriate authorities to whom the agency reports the crime.

(2)  An agency reporting a crime under this section may transmit copies of the child’s special education and disciplinary records only to the extent that the transmission is permitted by the Family Educational Rights and Privacy Act.

Transmittal of Records:  We maintain that the provisions in section 615(k)(6)(B) of the Act, as reflected in §300.535(b)(2), must be read consistent with the disclosures permitted under FERPA for the education records of all children.  Under FERPA, personally identifiable information (such as the child’s status as a special education child) can only be released with parental consent, except in certain very limited circumstances.  Therefore, the transmission of a child’s special education and disciplinary records under paragraph (b)(2) of this section without parental consent is permissible only to the extent that such transmission is permitted under FERPA.  

§300.536  Change of placement because of disciplinary removals.

(a)  For purposes of removals of a child with a disability from the child’s current educational placement under §§300.530 through 300.535, a change of placement occurs if--  

(1)  The removal is for more than 10 consecutive school days; or

(2)  The child has been subjected to a series of removals that constitute a pattern--

(i)  Because the series of removals total more than 10 school days in a school year;

(ii)  Because the child’s behavior is substantially similar to the child’s behavior in previous incidents that resulted in the series of removals; and  

(iii)  Because of such additional factors as the length of each removal, the total amount of time the child has been removed, and the proximity of the removals to one another.

(Deleted requirement that must determine manifestation BEFORE determining if pattern of removals is change)

(b)  (1)  The public agency determines on a case-by-case basis whether a pattern of removals constitutes a change of placement.  (Must determine manifestation after determination of pattern)

(2)  This determination is subject to review through due process and judicial proceedings. (Authority:  20 U.S.C. 1415(k))

Pattern & Manifestation Determination:   We agree with the commenters that requiring that a child’s behavior must be a manifestation of the child’s disability before determining that a series of removals constitutes a change in placement under proposed paragraph (b) of this section (new paragraph (a)(2) of this section) should be removed.   However, our removal of the manifestation determination under proposed paragraph (b)(2) of this section (new paragraph (a)(2) of this section) does not eliminate the obligation to conduct a manifestation determination under §300.530(e) if the public agency’s determination is that the series of removals constitutes a change in placement.  Section 300.530(e) requires that a manifestation determination be conducted within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct.  



State Complaint Procedures

§300.151  Adoption of State complaint procedures.

(a)  General.  Each SEA must adopt written procedures for--

(1)  Resolving any complaint, including a complaint filed by an organization or individual from another State, that meets the requirements of §300.153 by--

(i)  Providing for the filing of a complaint with the SEA; and

(ii)  At the SEA's discretion, providing for the filing of a complaint with a public agency and the right to have the SEA review the public agency's decision on the complaint; and

(2)  Widely disseminating to parents and other interested individuals, including parent training and information centers, protection and advocacy agencies, independent living centers, and other appropriate entities, the State procedures under §§300.151 through 300.153.

(b)  Remedies for denial of appropriate services.  In resolving a complaint in which the SEA has found a failure to provide appropriate services, an SEA, pursuant to its general supervisory authority under Part B of the Act, must address--

(1)  The failure to provide appropriate services, including corrective action appropriate to address the needs of the child (such as compensatory services or monetary reimbursement); and

(2)  Appropriate future provision of services for all children with disabilities.  

(In current regs, deleted in proposed, back in final)

§300.152  Minimum State complaint procedures.

(a)  Time limit; minimum procedures.  Each SEA must include in its complaint procedures a time limit of 60 days after a complaint is filed under §300.153 to--

(1)  Carry out an independent on-site investigation, if the SEA determines that an investigation is necessary;

(2)  Give the complainant the opportunity to submit additional information, either orally or in writing, about the allegations in the complaint;

(3)  Provide the public agency with the opportunity to respond to the complaint, including, at a minimum--

(i)  At the discretion of the public agency, a proposal to resolve the complaint; and

(ii)  An opportunity for a parent who has filed a complaint and the public agency to voluntarily engage in mediation consistent with §300.506;

(4)  Review all relevant information and make an independent determination as to whether the public agency is violating a requirement of Part B of the Act or of this part; and

(5)  Issue a written decision to the complainant that addresses each allegation in the complaint and contains--

(i)  Findings of fact and conclusions; and

(ii)  The reasons for the SEA's final decision.

(b)  Time extension; final decision; implementation.  The SEA's procedures described in paragraph (a) of this section also must--

(1)  Permit an extension of the time limit under paragraph (a) of this section only if--

(i)  Exceptional circumstances exist with respect to a particular complaint; or

(ii)  The parent (or individual or organization, if mediation or other alternative means of dispute resolution is available to the individual or organization under State procedures) and the public agency involved agree to extend the time to engage in mediation pursuant to paragraph (a)(3)(ii) of this section, or to engage in other alternative means of dispute resolution, if available in the State; and

(2)  Include procedures for effective implementation of the SEA's final decision, if needed, including--

(i)  Technical assistance activities;

(ii)  Negotiations; and

(iii)  Corrective actions to achieve compliance.

(c)  Complaints filed under this section and due process hearings under §300.507 and §§300.530 through 300.532.  (1)  If a written complaint is received that is also the subject of a due process hearing under §300.507 or §§300.530 through 300.532, or contains multiple issues of which one or more are part of that hearing, the State must set aside any part of the complaint that is being addressed in the due process hearing until the conclusion of the hearing.  However, any issue in the complaint that is not a part of the due process action must be resolved using the time limit and procedures described in paragraphs (a) and (b) of this section.  

(2)  If an issue raised in a complaint filed under this section has previously been decided in a due process hearing involving the same parties--

(i)  The due process hearing decision is binding on that issue; and

(ii)  The SEA must inform the complainant to that effect.

(3)  A complaint alleging a public agency’s failure to implement a due process hearing decision must be resolved by the SEA.

§300.153  Filing a complaint.

(a)  An organization or individual may file a signed written complaint under the procedures described in §§300.151 through 300.152.

(b)  The complaint must include--

(1)  A statement that a public agency has violated a requirement of Part B of the Act or of this part;

(2)  The facts on which the statement is based;

(3)  The signature and contact information for the complainant; and

(4)  If alleging violations with respect to a specific child--

(i)  The name and address of the residence of the child;

(ii)  The name of the school the child is attending;

(iii)  In the case of a homeless child or youth (within the meaning of section 725(2) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434a(2)), available contact information for the child, and the name of the school the child is attending;

(iv)  A description of the nature of the problem of the child, including facts relating to the problem; and

(v)  A proposed resolution of the problem to the extent known and available to the party at the time the complaint is filed.

(c)  The complaint must allege a violation that occurred not more than one year prior to the date that the complaint is received in accordance with §300.151.  (Deleted continuing violations and compensatory as exception to one year time frame.)

(d)  The party filing the complaint must forward a copy of the complaint to the LEA or public agency serving the child at the same time the party files the complaint with the SEA.   (Authority:  20 U.S.C. 1221e-3)

1 year Limit:  We believe a one-year timeline is reasonable, and will assist in smooth implementation of the State complaint procedures.  The references to longer periods for continuing violations and for compensatory services claims in current §300.662(c) were removed to ensure expedited resolution for public agencies and children with disabilities.  Limiting a complaint to a violation that occurred not more than one year prior to the date that the complaint is received will help ensure that problems are raised and addressed promptly so that children receive FAPE.  We believe longer time limits are not generally effective and beneficial to the child because the issues in a State complaint become so stale that they are unlikely to be resolved.  However, States may choose to accept and resolve complaints regarding alleged violations that occurred outside the one-year timeline, just as they are free to add additional protections in other areas that are not inconsistent with the requirements of the Act and its implementing regulations.  For these reasons, we do not believe it is necessary to retain the language in current §300.662(c).

Appeal of State Findings:  The regulations neither prohibit nor require the establishment of procedures to permit an LEA or other party to request reconsideration of a State complaint decision.  We have chosen to be silent in the regulations about whether a State complaint decision may be appealed because we believe States are in the best position to determine what, if any, appeals process is necessary to meet each State’s needs, consistent with State law.  

If a State chooses, however, to adopt a process for appealing a State complaint decision, such process may not waive any of the requirements in §§300.151 through 300.153. Section 300.152 requires that the SEA issue a final decision on each complaint within 60 calendar days after the complaint is filed, unless the SEA extends the timeline as provided in §300.152(b).  This means that, absent an appropriate extension of the timeline for a particular complaint, the State must issue a final decision within 60 calendar days.  However, if after the SEA’s final decision is issued, a party who has the right to request a due process hearing (that is, the parent or LEA) and who disagrees with the SEA’s decision may initiate a due process hearing, provided that the subject of the State complaint involves an issue about which a due process hearing can be filed and the two-year statute of limitations for due process hearings (or other time limit imposed by State law) has not expired.



Procedural Safeguards & Due Process Procedures

.

§300.121  Procedural safeguards.

(a)  General.  The State must have procedural safeguards in effect to ensure that each public agency in the State meets the requirements of §§300.500 through 300.536.

(b)  Procedural safeguards identified.  Children with disabilities and their parents must be afforded the procedural safeguards identified in paragraph (a) of this section.  Authority:  20 U.S.C. 1412(a)(6)(A))

§300.150  SEA implementation of procedural safeguards.

The SEA (and any agency assigned responsibility pursuant to §300.149(d)) must have in effect procedures to inform each public agency of its responsibility for ensuring effective implementation of procedural safeguards for the children with disabilities served by that public agency.     (Authority:  20 U.S.C. 1412(a)(11); 1415(a))

§300.500  Responsibility of SEA and other public agencies.

Each SEA must ensure that each public agency establishes, maintains, and implements procedural safeguards that meet the requirements of §§300.500 through 300.536.  (Authority:  20 U.S.C. 1415(a))

§300.501  Opportunity to examine records; parent participation in meetings.

(a)  Opportunity to examine records.  The parents of a child with a disability must be afforded, in accordance with the procedures of §§300.613 through 300.621, an opportunity to inspect and review all education records with respect to--

(1)  The identification, evaluation, and educational placement of the child; and

(2)  The provision of FAPE to the child.

(b)  Parent participation in meetings.  

(1)  The parents of a child with a disability must be afforded an opportunity to participate in meetings with respect to--

(i)  The identification, evaluation, and educational placement of the child; and

(ii)  The provision of FAPE to the child.

(2)  Each public agency must provide notice consistent with §300.322(a)(1) and (b)(1) to ensure that parents of children with disabilities have the opportunity to participate in meetings described in paragraph (b)(1) of this section.

(3)  A meeting does not include informal or unscheduled conversations involving public agency personnel and conversations on issues such as teaching methodology, lesson plans, or coordination of service provision.  A meeting also does not include preparatory activities that public agency personnel engage in to develop a proposal or response to a parent proposal that will be discussed at a later meeting.

(c)  Parent involvement in placement decisions.  

(1)  Each public agency must 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.

(2)  In implementing the requirements of paragraph (c)(1) of this section, the public agency must use procedures consistent with the procedures described in §300.322(a) through (b)(1).

(3)  If neither parent can participate in a meeting in which a decision is to be made relating to the educational placement of their child, the public agency must use other methods to ensure their participation, including individual or conference telephone calls, or video conferencing.

(4)  A placement decision may be made by a group without the involvement of a parent, if the public agency is unable to obtain the parent’s participation in the decision.  In this case, the public agency must have a record of its attempt to ensure their involvement. (Authority: 20 U.S.C. 1414(e), 1415(b)(1))

§300.503  Prior notice by the public agency; content of notice.

(a)  Notice.  Written notice that meets the requirements of paragraph (b) of this section must be given to the parents of a child with a disability a reasonable time before the public agency--

(1)  Proposes to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child; or

(2)  Refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child.

(b)  Content of notice.  The notice required under paragraph (a) of this section must include--

(1)  A description of the action proposed or refused by the agency;

(2)  An explanation of why the agency proposes or refuses to take the action;

(3)  A description of each evaluation procedure, assessment, record, or report the agency used as a basis for the proposed or refused action;

(4)  A statement that the parents of a child with a disability have protection under the procedural safeguards of this part and, if this notice is not an initial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained;

(5)  Sources for parents to contact to obtain assistance in understanding the provisions of this part;

(6)  A description of other options that the IEP Team considered and the reasons why those options were rejected; and

(7)  A description of other factors that are relevant to the agency's proposal or refusal.

(c)  Notice in understandable language.  

(1)  The notice required under paragraph (a) of this section must be--

(i)  Written in language understandable to the general public; and

(ii)  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.

(2)  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--

(i)  That the notice is translated orally or by other means to the parent in his or her native language or other mode of communication;

(ii)  That the parent understands the content of the notice; and

(iii)  That there is written evidence that the requirements in paragraphs (c)(2)(i) and (ii) of this section have been met.

§300.504  Procedural safeguards notice.

(a)  General.  A copy of the procedural safeguards available to the parents of a child with a disability must be given to the parents only one time a school year, except that a copy also must be given to the parents--

(1)  Upon initial referral or parent request for evaluation;

(2)  Upon receipt of the first State complaint under §§300.151 through 300.153 and upon receipt of the first due process complaint under §300.507 in a school year;

(3)  In accordance with the discipline procedures in §300.530(h); and

(4)  Upon request by a parent.

(b)  Internet Web site.  A public agency may place a current copy of the procedural safeguards notice on its Internet Web site if a Web site exists.

(c)  Contents.  The procedural safeguards notice must include a full explanation of all of the procedural safeguards available under §300.148, §§300.151 through 300.153, §300.300, §§300.502 through 300.503, §§300.505 through 300.518, §300.520, §§300.530 through 300.536 and §§300.610 through 300.625 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 due process complaint and State complaint procedures, including--

(i)  The time period in which to file a complaint;

(ii)  The opportunity for the agency to resolve the complaint; and

(iii)  The difference between the due process complaint and the State complaint procedures, 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 complaint;

(8)  Procedures for students who are subject to placement in an interim alternative educational setting;

(9)  Requirements for unilateral placement by parents of children in private schools at public expense;

(10)  Hearings on due process complaints, including requirements for disclosure of evaluation results and recommendations;

(11)  State-level appeals (if applicable in the State);

(12)  Civil actions, including the time period in which to file those actions; and

(13)  Attorneys' fees.

(d)  Notice in understandable language.  The notice required under paragraph (a) of this section must meet the requirements of §300.503(c).  (Authority:  20 U.S.C. 1415(d))

§300.505  Electronic mail. A parent of a child with a disability may elect to receive notices required by §§300.503, 300.504, and 300.508 by an electronic mail communication, if the public agency makes that option available.  (Authority:  20 U.S.C. 1415(n))

§300.506  Mediation.

(a)  General.  Each public agency must ensure that procedures are established and implemented to allow parties to disputes involving any matter under this part, including matters arising prior to the filing of a due process complaint, to resolve disputes through a mediation process.

(b)  Requirements.  The procedures must meet the following requirements:

(1)  The procedures must ensure that the mediation process--

(i)  Is voluntary on the part of the parties;

(ii)  Is not used to deny or delay a parent's right to a hearing on the parent's due process complaint, or to deny any other rights afforded under Part B of the Act; and

(iii)  Is conducted by a qualified and impartial mediator who is trained in effective mediation techniques.

(2)  A public agency may establish procedures to offer to parents and schools that choose not to use the mediation process, an opportunity to meet, at a time and location convenient to the parents, with a disinterested party--

(i)  Who is under contract with an appropriate alternative dispute resolution entity, or a parent training and information center or community parent resource center in the State established under section 671 or 672 of the Act; and

(ii)  Who would explain the benefits of, and encourage the use of, the mediation process to the parents.

(3)  (i)  The State must maintain a list of individuals who are qualified mediators and knowledgeable in laws and regulations relating to the provision of special education and related services.

(ii)  The SEA must select mediators on a random, rotational, or other impartial basis.

(4)  The State must bear the cost of the mediation process, including the costs of meetings described in paragraph (b)(2) of this section.

(5)  Each session in the mediation process must be scheduled in a timely manner and must be held in a location that is convenient to the parties to the dispute.

(6)  If the parties resolve a dispute through the mediation process, the parties must execute a legally binding agreement that sets forth that resolution and that--

(i)  States that all discussions that occurred during the mediation process will remain confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding; and

(ii)  Is signed by both the parent and a representative of the agency who has the authority to bind such agency.

(7)  A written, signed mediation agreement under this paragraph is enforceable in any State court of competent jurisdiction or in a district court of the United States.

(8)  Discussions that occur during the mediation process must be confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding of any Federal court or State court of a State receiving assistance under this part.

(Deleted proposed reference to signed confidentiality agreement)

(c)  Impartiality of mediator.  

(1)  An individual who serves as a mediator under this part--

(i)  May not be an employee of the SEA or the LEA that is involved in the education or care of the child; and

(ii)  Must not have a personal or professional interest that conflicts with the person’s objectivity.

(2)  A person who otherwise qualifies as a mediator is not an employee of an LEA or State agency described under §300.228 solely because he or she is paid by the agency to serve as a mediator. (Authority:  20 U.S.C. 1415(e))

§300.507  Filing a due process complaint.

(a)  General.  

(1)  A parent or a public agency may file a due process complaint on any of the matters described in §300.503(a)(1) and (2) (relating to the identification, evaluation or educational placement of a child with a disability, or the provision of FAPE to the child).

(2)  The due process complaint must allege a violation that occurred not more than two years before the date the parent or public agency knew or should have known about the alleged action that forms the basis of the due process complaint, or, if the State has an explicit time limitation for filing a due process complaint under this part, in the time allowed by that State law, except that the exceptions to the timeline described in §300.511(f) apply to the timeline in this section.

(b)  Information for parents.  The public agency must inform the parent of any free or low-cost legal and other relevant services available in the area if--

(1)  The parent requests the information; or

(2)  The parent or the agency files a due process complaint under this section.   (Authority:  20 U.S.C. 1415(b)(6))

§300.508  Due process complaint.

(a)  General.  

(1) The public agency must have procedures that require either party, or the attorney representing a party, to provide to the other party a due process complaint (which must remain confidential).

(2)  The party filing a due process complaint must forward a copy of the due process complaint to the SEA.

(b)  Content of complaint.  The due process complaint required in paragraph (a)(1) of this section must include--

(1)  The name of the child;

(2)  The address of the residence of the child;

(3)  The name of the school the child is attending;

(4)  In the case of a homeless child or youth (within the meaning of section 725(2) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434a(2)), available contact information for the child, and the name of the school the child is attending;

(5)  A description of the nature of the problem of the child relating to the proposed or refused initiation or change, including facts relating to the problem; and

(6)  A proposed resolution of the problem to the extent known and available to the party at the time.

(c)  Notice required before a hearing on a due process complaint.  A party may not have a hearing on a due process complaint until the party, or the attorney representing the party, files a due process complaint that meets the requirements of paragraph (b) of this section.

(d)  Sufficiency of complaint.  

(1)  The due process complaint required by this section must be deemed sufficient unless the party receiving the due process complaint notifies the hearing officer and the other party in writing, within 15 days of receipt of the due process complaint, that the receiving party believes the due process complaint does not meet the requirements in paragraph (b) of this section.  

(USDE Discussion:  There is no requirement that the party who alleges that a notice is insufficient state in writing the basis for the belief)

(2)  Within five days of receipt of notification under paragraph (d)(1) of this section, the hearing officer must make a determination on the face of the due process complaint of whether the due process complaint meets the requirements of paragraph (b) of this section, and must immediately notify the parties in writing of that determination.

Relationship to Resolution Meeting::  We agree with S. Rpt. No. 108-185, p. 38, which states that the resolution meeting should not be postponed when the LEA believes that a parent’s complaint is insufficient.  While the period to file a sufficiency claim is the same as the period for holding the resolution meeting, parties receiving due process complaint notices should raise their sufficiency claims as early as possible, so that the resolution period will provide a meaningful opportunity for the parties to resolve the dispute.  

(3)  A party may amend its due process complaint only if--

(i)  The other party consents in writing to the amendment and is given the opportunity to resolve the due process complaint through a meeting held pursuant to §300.510; or

(ii)  The hearing officer grants permission, except that the hearing officer may only grant permission to amend at any time not later than five days before the due process hearing begins.

(4)  If a party files an amended due process complaint, the timelines for the resolution meeting in §300.510(a) and the time period to resolve in §300.510(b) begin again with the filing of the amended due process complaint.

(e)  LEA response to a due process complaint.  

(1)  If the LEA has not sent a prior written notice under §300.503 to the parent regarding the subject matter contained in the parent’s due process complaint, the LEA must, within 10 days of receiving the due process complaint, send to the parent a response that includes--

(i)  An explanation of why the agency proposed or refused to take the action raised in the due process complaint;

(ii)  A description of other options that the IEP Team considered and the reasons why those options were rejected;

(iii)  A description of each evaluation procedure, assessment, record, or report the agency used as the basis for the proposed or refused action; and

(iv)  A description of the other factors that are relevant to the agency’s proposed or refused action.

(2)  A response by an LEA under paragraph (e)(1) of this section shall not be construed to preclude the LEA from asserting that the parent’s due process complaint was insufficient, where appropriate.

(f)  Other party response to a due process complaint.  Except as provided in paragraph (e) of this section, the party receiving a due process complaint must, within 10 days of receiving the due process complaint, send to the other party a response that specifically addresses the issues raised in the due process complaint.   (Authority:  20 U.S.C. 1415(b)(7), 1415(c)(2))

NonAttorneys in Due Process Discussion:  We are considering the issue of non-attorney representation of parties in a due process hearing under the Act, in light of State rules concerning the unauthorized practice of law.  We anticipate publishing a notice of proposed rulemaking in the near future seeking public comment on this issue.

Response to Due Process Request Discussion:  The Act does not establish consequences for parents who are the receiving parties to complaints if they fail to respond to a due process complaint notice.  However, either party’s failure to respond to, or to file, the requisite notices could increase the likelihood that the resolution meeting will not be successful in resolving the dispute and that a more costly and time-consuming due process hearing will occur.  

§300.509  Model forms.

(a)  Each SEA must develop model forms to assist parents and public agencies in filing a due process complaint in accordance with §§300.507(a) and 300.508(a) through (c) and to assist parents and other parties in filing a State complaint under §§300.151 through 300.153.  However, the SEA or LEA may not require the use of the model forms.

(b)  Parents, public agencies, and other parties may use the appropriate model form described in paragraph (a) of this section, or another form or other document, so long as the form or document that is used meets, as appropriate, the content requirements in §300.508(b) for filing a due process complaint, or the requirements in §300.153(b) for filing a State complaint.   (Authority:  20 U.S.C. 1415(b)(8))

§300.510  Resolution process.

(a)  Resolution meeting.  

(1) Within 15 days of receiving notice of the parent’s due process complaint, and prior to the initiation of a due process hearing under §300.511, the LEA must convene a meeting with the parent and the relevant member or members of the IEP Team who have specific knowledge of the facts identified in the due process complaint that--

(i)  Includes a representative of the public agency who has decision-making authority on behalf of that agency; and

(ii)  May not include an attorney of the LEA unless the parent is accompanied by an attorney.

(2)  The purpose of the meeting is for the parent of the child to discuss the due process complaint, and the facts that form the basis of the due process complaint, so that the LEA has the opportunity to resolve the dispute that is the basis for the due process complaint.

(3)  The meeting described in paragraph (a)(1) and (2) of this section need not be held if--

Answer 10

He's a goner.

Answer 11

I suggest getting a copy of your states handbook of Special Education Students Rights. It much longer than the 4 pages or so you get as procedural safeguards at an IEP meeting. Also check out wrtightslaw to see what your rights are as well as the schools rights. Good luck.

http://www.wrightslaw.com

Answer 12

Well, first you'll (the IEP team) decide if it is a manifestation of his exceptionality. IF it is, long term suspension out of school is out of the question, by federal law. You should know that.

Answer 13

Wow.  Your rights are the least of your problems, IMO.

The authority (here it would be the school board) will listen to the stories of principal, prolly you, kid, other witnesses.  THey will prolly ask what's to keep him from hitting again.  If you (and your shrink) don't have compelling reasons why he *won't* do this again, he'll be suspended.

You're lucky that principal didn't file assault charges, and you gotta find some way to teach this kid that violence is not helpful.  Otherwise his life will be revolving door of hitting, isolation, hitting, etc.  Isolation will increase emotional response, which will tend to increase hitting.  Does he have the capability of learning not to hit, or controlling himself?

Contact the school board ASAP to find out if you can bring therapist, etc.  See therapist ASAP to see what he says.  How are you addressing the hitting problem?  How are you gonna change his behavior?  Then get therapist to write letter or testify for kid.

Good luck.

Answer 14

Your question doesn't specify whether you have a discipline hearing or a special ed manifestation determination.  If a manifestation determination:  Although you state that your son's behavior was clearly a result of his disability, it is up to the IEP team to make that determination in light of certain factors mandated by the IDEA and/or state law.  Further, although you specificy that he has temper problems, is this a manifestation of the disability for which he receives IDEA services ?  If the team determines that the behavior WAS a result of that disability, the District cannot impose discipline that results in a change in placement (long term suspension over 10 days).  If the team determines that the behavior WAS NOT a result of that disability, the district can impose the discipline, but should still provide special education services (generally in a different location).

Answer 15

I am a special education teacher and this is what the law states:

1)  Your child can have no more than 10 days of in school suspension for an entire school year and the school must hold a manifest determination for his behavior

2)  If it is determined that it is related to his disability, then the IEP team must write an appropriate IEP and behavior intervention plan (BIP) to address it

3)  If it is not related to his IEP or disability, the school has the right to remove for up to 45 days.  There is no such thing as long term removal for a special ed. student