Understanding Parent and Public School District Rights in the Education of Children

Reprinted Courtesy of

Iroquois School District 2-3

PO Box 98  Iroquois, SD 57353

(605) 546-2426

PRIOR NOTICE

You will notified in writing if the district proposes or refuses to change your child's special education program.  The notice must be understandable.  You must receive notice of placement committee meetings 5 days prior to the meeting being held.

The district must provide you with written notice whenever they propose to initiate or change or refuse to initiate or change the identification, evaluation or educational placement of your child or the provision of a free appropriate public education to your child.  If parental consent is required as part of the action proposed by the district, the district may give notice at the same time your consent is being requested.

The notice must include:

1.  a full explanation of all the procedural safeguards available to you;

2.  a description of the action proposed or refusal by the district.

3.  an explanation of why the district proposes or refuses to take the action;

4.  a description of any other options that the district considered and the reasons why those options were rejected;

5.  a description of each evaluation procedures, test record, or report the district used as a basis for the proposed or refused action; and

6. a description of any other factors that are relevant to the district's proposal or refusal.

A copy of the procedural safeguards will be given to you at a minimum-

1. Upon initial referral for evaluation;

2.  Upon each notification of an IEP meeting;

3.  Upon reevaluation of your child; and

4.  Upon making a request for a due process hearing.

DEFINITIONS

"Consent" means that the parent has been fully informed of all information relevant to the activity for which consent is sought, in his or her native language, or other mode of communication.  The parent understands and agrees in writing to the carrying out of the activity for which his or her consent is sought, and the consent describes that activity and lists the records ( if any) that will be released and to whom; and the parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at any time.

If a parent revokes consent, that revocation is not revocation is not retroactive ( i.e. it does not negate an action that has occurred after the consent was given and before the consent was revoked).

"Evaluation" means procedures used in accordance with federal regulations of procedures for evaluations and determination of eligibility to determine whether a child has a disability and the nature and extent of the special education and related services that the child needs.  "Personally identifiable" means that information includes-

1.  the name of the child, the child's parent, or other family member.

2. the address of the child.

3. a personal identifier, such as the child's social security number or student number; or

4.  a list of personal characteristics or other information that would make it possible to identify the child with reasonable certainly.

PARENTAL CONSENT

Your written permission is required before your child is initially evaluated, reevaluated, or placed in special education.

The district must obtain your informed consent before your child is initially evaluated, reevaluated or initially placed into a program providing special education and related services.  In conducting  reevaluations, informed parental consent consent need not be obtained if the district can demonstrate that it has taken reasonable measures to obtain parental consent and the parent has failed to respond.  To meet the "reasonable measures" requirement, the district must have a record of its attempts to obtain parental consent, such as; measures " requirement,  the district must have a record of its attempts to obtain parental consent, such as:

1. Detailed records of telephone calls made or attempted and the results of those calls;

2.  Copies of correspondence sent to the parents and any responses received; and

3.  Detailed records of visits made to the parent's home or place of employment and the results of those visits.

Parental consent for evaluation shall not be construed as consent for placement into special education program. 

The district may initiate an impartial due process hearing or mediation to determine if the child may be evaluated, reevaluated or initially provided special education and related services without parental consent.  If the district does so, and the hearing officer upholds the district, the district may evaluated, reevaluate or initially provide special education and related services to the child without the parent's consent, subject to the parent's rights under administrative appeal.

Parental consent is not required before;

1.  Reviewing existing data as part of an evaluation or reevaluation; or

2.  Administering a test or other evaluation that is administered to all children unless, before administration of that test or evaluation, consent is required of parents of all children.

A district may not use parent's refusal to consent to one service or activity under this section to deny the parent or child any other service, benefit, or activity of this public agency, except as required by the state rule.

Independent Educational Evaluation

If you disagree with the school's evaluation of your child, you can request an independent evaluation (IEE).  This type of evaluation is one which is conducted by a qualified person who is not employed by the school district.

An independent educational evaluation means an evaluation conducted by a qualified examiner who is not employed  by the district responsible for the education of your child.  Public expense means that the district either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to the parent.  At your request for an IEE, the district will provide you with information about where and IEE may be obtained, and the district criteria applicable for independent educational evaluations.

You have the right to an independent educational evaluation at public expense if you disagree with an evaluation obtained by the district.    If you request an independent educational evaluation at public expense, the district must, without unnecessary delay either initiate a hearing to show that its evaluation is appropriate or insure an independent educational evaluation is provided at public expense unless, through the hearing process, the district demonstrates that the evaluation obtained by the parent did not meet district criteria.  If the district initiates a hearing and the final decision is that the districts evaluation is appropriate, you still have the right to an independent educational evaluation, but not at public expense.

If you request an independent educational evaluation, the district may ask you for the reason why you object to the public evaluation.  However, the explanation by you may not be required and the district may not unreasonably delay either providing the independent educational evaluation at pubic expense or initiating a due process hearing to defend the public evaluation.

If you obtain an independent educational evaluation at private expense, the results of the evaluation must be considered by the district criteria, in any decision made with respect to the provision of a free appropriate public education to your child.  The results of the evaluation may be presented as evidence at at hearing under this state rule regarding your child.

If a hearing officer requests an independent educational evaluation as part of a hearing, the cost of the evaluation must be at public expense.

If an independent educational evaluation is at public expense, the criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner must be the same as the criteria that the district uses when it initiates an evaluation to the extent those criteria are consistent with the parent's right to an independent educational evaluation.  Except for the criteria described above, the district may not impose conditions or timelines related an independent educational evaluation at public expense.

OPPORTUNITY TO EXAMINE RECORDS; PARENT PARTICIPATION IN MEETING

As the parent of a child in need of special education or special education and related services, you have the right to see all education records pertaining to your child.  You must be invited to meetings where the identification, evaluation or placement of your child is discussed.  You must also be invited to participate in meetings held where there is discussion regarding the provision of a free appropriate public education for your child.

As a parent of a child with a disability, you must be afforded the opportunity to inspect and review all education records that relate to the identification, evaluation and educational placement of your child, and the provision of a free appropriate public education for your child.  You must be afforded the opportunity to participate in meetings that pertain to the identification, evaluation and education placement of your child and the provision of a free appropriate public education to your child.

The district shall provide notice to you which ensures that you have the opportunity to participate in meetings.  The notice will inform you of the purpose, time and location of the meeting, who will be in attendance.  The notice will inform you of the purpose, time, and location of the meeting, who will be in attendance, and your ability to invite  other individuals who have knowledge or special expertise about your child.  The term "meetings" does not include informal or unscheduled conversations involving district personnel and conversations on issues such as teaching methodology, lesson plans, or coordination of service provision, if those issues are not addressed on your child's IEP.  The term "meetings" also does not include preparatory activities that district personnel engage in to develop a proposal or response to a parent proposal that will be discussed at a later meeting.

The district shall ensure that you are members of any group that makes decisions on the educational placement of your child.  If neither parent can participate in a meeting in which a decisions on the educational placement of your child, the district shall use other methods to ensure their participation, including individual or conference telephone calls, or video conferencing.

To ensure your involvement in placement decisions, the district shall afford you the opportunity to participate in meetings including.

1.  Notifying you of the meetings early enough to ensure that you will have an opportunity to attend; and

2.  Scheduling the meeting at a mutually agreed on time and place.

A placement decision may be made by a group without your involvement, if the district is unable to obtain your participation in the decision.  In the case, the district must have a record of its attempts to ensure your involvement, including information that is consistent with the requirements of parent participation in meetings.  (i.e. records of telephone calls, correspondence, and home visits)

The district shall make reasonable efforts to ensure that you understand and are able to participate in any group discussions relating to the educational placement of your child, including arranging for an interpreter for parents with deafness or whose native language is other than English.

ACCESS TO EDUCATIONAL RECORDS

You have the right to see or request copies of all your child's records.  If you disagree with items in the records, you can request that they be changed or removed.

Definitions as used in this section-

"Destruction" means physical destruction or removal of personal identifiers from information so that the information is no longer personally identifiable.

"Education records" means the type of records covered under the definition of "education records" in 34 CFR part 99 (the regulations implementing the Family Educational Rights and Privacy Act of 1974).

"Participating agency" means any agency or institution that collects, maintains, or uses personally identifiable information, or from which information is obtained, under Part B of the IDEA.

The office of Special Education shall give notice that is adequate to fully inform parents about the requirements of the confidentiality of personally identifiable information, including:

1.  a description of the extent that the notice is given in the native language of the various population groups in the state.

2.  a description of the children on whom personally identifiable information is maintained the types of information sought, the methods the state intends to use in gathering the information ( including the sources from whom information is gathered), and the uses to be made of the information.

3.  a summary of the policies and procedures that participating agencies must follow regarding storage, disclosure to third parties, retention, and destruction of personally identifiable information; and

4.  a description of all rights of parents and children regarding this information, including the rights under the Family Educational Rights and Privacy Act of 1974, and implementing regulations in 34 CFG part 99.

Before  any major identification, location, or evaluation activity, the notice must be published or announced in newspapers or other media or both, with circulation adequate to notify parents throughout the state of the activity.

The district must permit you to inspect and review any education records relating to your child which are collected, maintained or used by the district for the purpose of providing special education.  The district must comply with your request without necessary delay and before any meeting  regarding an individualized education program (IEP), hearing relating to the identification, evaluation, or education placement of your child or the provision of a free appropriate public education to your child.  The district may not take more than 45 days to comply after the request has been made.

Your rights to inspect and review records under this section includes:

1.  the right to a response from the district to reasonable requests for explanations and interpretations of the records;

2.  the right to request that the district provide copies of the records containing the information if failure to provide these copies would effectively prevent you from exercising your right to inspect and review the records;

3.  the right to have your representative inspect and review the records.

The school district may presume that you have authority to inspect and review records relating to your child unless the district has been advised that the parent does not have the authority under applicable State law governing such matters as guardianship, separation, and divorce.

The district must keep a record of parties obtaining access to the record collect, maintained or used under special education (except access by you or authorized school personnel) including the name of the party the date access was given and the purpose of which access to the records was given to the party.

If any education records include information on more than one child, the parents of those children have the right to inspect and review only the information relating to their child or to be informed of that specific information.

The district shall provide parents, upon request, a list of the types of records and the locations of those records collected, maintained an maintained and used by the district.

A fee may be charged by the district for copies of records that are made for parents, if the fee does not effectively prevent the parents form exercising their right to inspect and review those records.  The district may not charge a fee to search for or retrieve information.

Except as to disclosures addressed in "Discipline" for which parental consent is not required by FERPA, your consent must be obtained before personally identifiable information is disclosed to anyone other than officials of the district collecting or using the information for the purpose of the provision of special education, or is used for any other purpose than meeting a requirement of special education.

The school district may not release information form education records subject to FERPA (Family Educational Rights and Privacy Act) 34 part 99 unless authorized to do so under FERPA.

If the parents refuse consent for the release of personally identifiable information to a third party, the district may proceed with the due process hearing procedures in an effort to obtain the desired information.

The district shall protect the confidentiality of personally identifiable information at collection, storage, disclosure, and destruction stages.  One person at the district shall assume responsibility for ensuring the confidentially of any personally identifiable information.  All persons collecting or using personally identifiable information must receive training or instruction regarding the State's policies and procedures regarding confidentiality of personally identifiable information and FERPA.  The district shall maintain, for public inspection, a current listing of the names and positions of those employees within the district who may have access to personally identifiable information.  The district shall inform you when personally identifiable  information collected, maintained or used for special education and related services is no longer needed to provide educational services to your child.  The information must be destroyed at your request, however, a permanent record of your child's name, address, phone numbers, his or her own grades, attendance, record, classes attended, grade level, completed and year completed may be maintained without time limitation.

The Office of Special Education shall provide policies and procedures regarding the extent to which children are afforded rights of privacy similar to those afforded to parents, taking into consideration the age of the child and type or severity of disability.  In addition, the Office of Special Education shall provide polices and procedures, including sanctions that the State uses to ensure that its policies and procedures are followed and that the requirements of the IDEA and its implementing regulations are met.

Under the regulations for the Family Educational Rights and Privacy Act of 1974 (34 CFR 99.5 (a)), the rights of parents regarding education records are transferred to the student at age 18.

If the rights accorded to parents und Part B of the IDEA are transferred to a student who reaches the age of majority, the rights regarding educational records must be transferred to the student.  However, the district must provide any notice required under section 615 of the IDEA to the student and the parents.

The State may require that a district include in the records of a child with a disability a statement of any current or pervious disciplinary action that has been taken against the child and transmit the statement to the same extent that the disciplinary information is included in, and transmit the statement to the same extent that the disciplinary information is included in, and transmitted with, the student records of nondisabled children.  The statement may include a description of any behavior engaged in by the child that required disciplinary action, a description of the disciplinary action taken and any other information that is relevant to the safety of the child and other individualized involved with the child.  If the State adopts such a policy and the child transfers from one school to another, the transmission of any of the child's records must include both the child's current individualized education program and any statement of current or pervious disciplinary action that has been taken against the child.

If the U.S. Department of Education or its authorized representatives collect any personally identifiable information regarding children with disabilities that is not subject to FERPA, the Secretary of Education shall apply comparable regulations.

AMENDMENT OF RECORDS AT PARENT'S REQUEST

If you believe the information in the education records collected, maintained or used for the purposes of providing special education and related services is inaccurate or misleading or violates the privacy or other rights of your child, you may request the district that maintains the information to amend the information.

The district shall decide whether to amend the information in accordance with the request within a reasonable period of time of receipt of the request.  If the district decides to refuse to amend the information in accordance with the request, it shall inform you of the refusal, and advise you of your rights to a hearing as described below.

The district shall, on request, provide an opportunity for a hearing to challenge information in education records to ensure that it is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of the child.

If, as a result of the hearing, the district decides that the information is inaccurate, misleading or otherwise in violation of the privacy or other rights of the child, it shall amend the information accordingly and so inform the parent in writing.  If as a result of the hearing, the district decides that the information is not inaccurate, misleading, or otherwise in violation of the privacy of other rights of the child, it shall inform you of the right to place in the records it maintains of the child a statement commenting on the information or setting forth any reasons for disagreeing with the decision of the agency.

Any explanation placed in your child's records must be maintained by the district as part of the records of your child as long as the record or contested portion is maintained by the district, and if the records your child or the contested portion is disclosed by the district to any party, the explanation must also be disclosed to the party.

CHILDREN PLACED IN PRIVATE SCHOOLS BY THEIR PARENTS

Parents who place their children in private schools for the purpose of receiving special education or special education and related services could be awarded reimbursement for educational costs if a court or hearing officer determined that the school district was not providing a free appropriate public education.

A school district is not required to pay the cost of education, including special education and related services, of a child with a disability at a private school or facility if the district made a free appropriate public education available to the child and you still elected the place the child at the private school or facility.  However, the district shall include your child in the population whose needs are addressed through private school enrollment where FAPE is not a issue.

Disagreement between you and the district regarding the availability of an appropriate program for your child and the question of financial responsibility are subject to the due process procedures found within this document.

If you enroll your child, who previously received special education and related services through your school district, in a private preschool, elementary, or secondary school without the consent of or referral by the district, a court or hearing officer finds that the district had not made FAPE available to your child in a timely manner prior to that enrollment, and that the private placement is appropriate.  A parental  placement may be found appropriate by a hearing officer or a court even if it does not meet the State standards that apply to education provided by the Division and school districts.

The cost of reimbursement described in the above paragraph may be reduced or denied if-

1.  at the most recent IEP meeting you attended prior to the removal of your child from public school, you did not inform the IEP team that you were rejecting the placement proposed by the district to provide FAPE to your child, including stating your concerns and intent to enroll your child at a private school at public expense: or at least ten (10) business days (including any holidays that occur in a business day) prior to the removal your child school, you did not give a written notice to the district of your rejection of the placement proposed by the district, including stating your concerns and intent to enroll your child in a private school at public expense.

2.  If, prior to your removal of your child from the public school, the district informed you through notice of its intent to evaluate your child ( including a statement of the purpose of the evaluation that was appropriate and reasonable) but you did not make the child available for the evaluation; or

3.  upon a judicial finding of unreasonableness with respect to actions taken by you.

The cost of reimbursement may not be reduced or denied for failure to provide the notice if-

1.  You are unable to  read and cannot write in English.

2.  Compliance with this section would likely result in physical or serious emotional harm to your child.

3.  The school prevented you from providing the notice: or

4.  You did not receive the notice of the requirement to provide written notice to the district.

PLACEMENT IN ALTERATIVE EDUCATIONAL SETTINGS

Discipline for students in need of special education has been defined in very specific terms.  The issues surrounding the problem behavior and the reasons for the problem behavior are considered in depth when making discipline decisions for students in need of special education.

For purpose of removals of a student with a disability from the student's current educational placement under a district's discipline procedures, a change of placement occurs if: 

1.  The removal is for more than 10 consecutive days: or

2.  The student is subjected to a series of removals that constitute a pattern because they cumulate to more than 10 school days in a school year, and because of factors such as the length of each removal, the total amount of time the student is removed, and the proximity of the removal to one another.

To the extent removal would be applied to students without disabilities, school personnel may order the removal of a student with a disability from the student's current placement for not more than 10 consecutive school days for any violation of school rules, and additional removals of not more than 10 consecutive days in that same school year for separate incidents of misconduct as long as those removals do not constitute a change of placement.

A school district need not provide services during period of removal to a student with a disability who has been removed from his or her current placement for 10 school days or less in that school year.  If services are not provided to a student without disabilities who has been similarly removed.

In the case of a student with a disability who has been removed from his or her current placement for more than 10 school days in that school year, the district for the remainder of the removals, shall provide services to the extent necessary to enable the student to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the student's IEP.

School personnel  in consultation with the student's special education, determine the extent to which services are necessary  to enable the student to appropriately progress in the general  curriculum and appropriately advance toward achieving the goals set out in the student's IEP.

School personnel may order a change in placement of a student with a disability to an appropriate interim alternative educational setting for the same amount of time that a student without a disability would be subject to discipline, but for not more than 45 days if;

1.  The student carries a weapon to school or to a school function under the jurisdiction of a state or local education agency; or

2.  The student knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or a school function under the jurisdiction of a state or local educational agency.

Within 10 business days after first removing a student for more than ten (10) school days in a school year, including weapons violation, drugs violations, or behavior that is substantially likely to result in injury to the student or to others, the following actions shall be taken by the school district.

1.  If the district did not conduct a functional behavioral assessment and implement a behavioral intervention plan for the student before the behavior that resulted in the removal occurred, the district shall convene an individualized education program meeting to develop an assessment plan; or

2.  If the student already has a behavioral intervention plan, the individualized education program team shall meet to review the plan and its implementation and modify it, as necessary to address the behavior.

3.  As soon as practicable after developing the plan described in subsection (1) of this section and completing the assessment required by the plan, the district shall convene an IEP meeting to develop appropriate behavioral interventions to address that behavior and shall implement those interventions.

4.  If subsequently, a student with a disability who has a behavioral intervention plan and who has been removed from the student's current educational placement for more than 10 school days in a school year is subjected to a removal that does not constitute a change of placement the IEP team members shall review the behavioral intervention plan and its implementation to determine if modifications are necessary.

If one or more of the team members believe that modifications are needed, the team shall  meet to modify the plan and its implementation to the extent the team determines necessary.

For the purpose of this section, the district follows the federal definitions for  "controlled substance", "illegal drugs" and "weapons".

A hearing officer under section 615 of the IDEA may order a change in the placement of your child with a disability to an appropriate interim alternative educational setting for not more than 45 days if the hearing officer, in an expedited due process hearing:

1.  determine that the district has demonstrated by substantial evidence that maintaining the current placement of the child is substantially likely to result in injury to the child or to others.

2.  considers the appropriateness of the child's current placement;

3.  considers whether the district has made reasonable efforts to minimize the risk of harm in the child's current placement, including the use of supplementary aids and services; and

4.  determines that the interim alternative educational setting that is proposed by school personnel who have consulted with the student's special education teacher meets the requirements described below.

The alternative educational setting ordered by school personnel for weapon or drug violations must be determined by the IEP team.  Any interim alternative educational setting in which a child is placed by school personnel or hearing officer must:

1.  be selected so as to enable the child to continue to progress in the general curriculum, although in another setting, and to continue to receive those services and modifications, including those described in the child's IEP, that will enable the child to meet the goals set our in that IEP: and

2.  include services and modifications designed to address the behavior which resulted in the alternate educational setting.

MANIFEST DETERMINATION

If an action is contemplated regarding behavior involving weapons, drugs, or injury to self or others, or removal that constitutes a change in placement for a child with a disability who has engaged in other behavior that violated any rule or code of conduct of the district that applies to all children; not later than the date on which the decision to take that action is made, you must be notified of that decision and of all procedural safeguards described under state rule' and immediately, if possible, but in no case later than 10 school days after the day on which the decision to take that action is made, a review must be conducted of the relationship between the child's disability and the behavior subject to the disciplinary action.  This review may be conducted at the same IEP meeting that is convened to determine the school district's action regarding a functional behavioral assessment and intervention plan.

A review to determine the manifestation determination must be conducted by the IEP team and other qualified personnel in a meeting.  In carrying  out the review, the IEP team and other qualified personnel a may determine that the behavior of the child was not a manifestation of the child's disability only if the IEP team and other qualified personnel:

1.  first considers, in terms of the behavior subject to disciplinary action, all relevant information, including:

a)   evaluation and diagnostic results, including the results or other relevant information supplied by the parents of the child:

b)  observation of the child; and

2.  then determines that:

a) in relationship to the behavior subject to disciplinary action, the child's IEP and placement were appropriate and the special education services,  supplementary aids and services, and behavior intervention strategies were provided consistent with the child's IEP and placement:

b)  the child's disability did not impair the ability of the child to understand the impact and consequences of the behavior subject to disciplinary action: and

3.  the child's disability did not impair the ability of the child to control the behavior subject to disciplinary action.

If the IEP team and other qualified personnel determines that any of the above standards were not met, the behavior must be considered a manifestation of the child's disability.

If the results of the review is a determination that the behavior was not a manifestation of the child's disability, the relevant disciplinary procedures applicable to children without disabilities may be applied to the child in the same manner in which they would be applied to children without disabilities, except that a free appropriate public education must be available to all children with disabilities, between the ages of three and twenty-one, including children with disabilities who have been suspended or expelled from school.

If you disagree with a determination that your child's behavior was not a manifestation of the child's disability or with any decision regarding placement, you may request a hearing,  The Office of Special Education and  district shall arrange for an expedited hearing in any case describe in this section if requested by a parent.

If in the manifestation determination review, the district identifies deficiencies in the child's IEP or placement or in their implementation, it must take immediate steps to remedy those deficiencies.

The student's IEP team determines the extent to which services are necessary to enable the student appropriately progress in the general curriculum an appropriately advance toward achieving the goals set out in the student's IEP if the student is removed because of behavior that has been determined not to be a manifestation of the student's disability.

If the school district initiates disciplinary procedures applicable to all students, the district shall ensure that the special education and disciplinary records of the student with a disability are transmitted for consideration by the person or persons making the final determination regarding the disciplinary action.

If you disagree with a determination that your child's behavior was not a manifestation of their disability or with any decision regarding placement, you may request a hearing,  The Office of Special Education and district shall arrange for an expedited hearing in any case described in this section if requested by a parent.

In reviewing a reviewing a decision with respect to the manifestation determination, the hearing officer shall determine whether the district has demonstrated that the child's behavior was not a manifestation of the child's disability consistent with the requirements of making that determination.  In reviewing a decision to place a child in an interim alternative educational setting, the hearing officer shall apply the standards referenced in this section which detail the process for determination of alternate educational settings by a hearing officer.

If you request a hearing regarding disciplinary action to challenge the interim alternative educational setting or the manifestation determination, your child must remain in the interim alternative educational setting pending the decision of the hearing officer or until the expiration of the time period provided for under the law, whichever occurs first, unless the parent and the State or school district agree otherwise.

If your child is placed in an interim alternative educational setting pursuant to the law, and school personnel propose to change the child's placement after expiration of the interim alternative placement, during the pendency of any proceeding to challenge the proposed change in placement, the child must remain in the current placement (the child's placement prior to the interim alternative education setting) except:

1.  if the school personnel maintain that it is dangerous for the child to be in the current placement (placement prior to removal to the interim alternative education setting) during the pendency of the due process proceeding, the district may request an expedited due process hearing.

2.  in determining whether the child may be placed in the alternative educational setting or in another appropriated placement ordered by the hearing officer, the hearing officer shall apply the standards in this section which detail the process for determination of alternate educational settings by a hearing officer.

3.  A placement ordered by a hearing officer under this section may not be longer than 45 days.

4.  The procedures in this section may be repeated as necessary.

PROCEDURES FOR CHILDREN NOT YET ELIGIBLE FOR SPECIAL EDUCATION AND RELATED SERVICES

A child who has been determined to be eligible for special education and related services, and who has engaged in behavior that violate any rule or code of conduct of the school district, may assert any of the protections provided for under this part if the district had knowledge ( as determined in accordance with the following information) that the child was a child with a disability before the behavior that precipitated the disciplinary if:

1.  the parent of the child has expressed concern in writing (or orally if the parent does not know who to write or has a disability that prevents a written statement) to personnel of the appropriate educational agency that the child is in need of special education and related services;

2.  the behavior or performance of the child demonstrates the need for these services;

3.  the parent of the child has requested an evaluation of the child; or

4.  the teacher of the child, or other personnel of the local educational agency, has expressed concern about the behavior or performance of the child to the director of special education of the district or the other personnel of the district in accordance with the district's established child find or special education referral system.

A district would not be deemed to have knowledge under this section, if as a result of receiving the information described above, the district:

1.  Either,

    a.  Conducted an evaluation consistent with state rule and determined that the student was not a student with a disability; or

    b.  Determined that an evaluation was not necessary; and

2.  Provided notice to the student's parents of its determination consistent with this chapter.

If a district does not have knowledge that the child is a child with a disability prior to taking disciplinary measures against the child, the child may be subjected to the same disciplinary measure as the measures applied to children without disabilities who engaged in comparable behaviors.

If a request is made for an evaluation of a child during the time in which a child is subjected to disciplinary measures, the evaluation must be conducted in an expedited manner.  Until the evaluation is completed the child remains in the educational placement determined by school authorities which can include suspension, or expulsion without educational service.  If the child is determined to be a child with a disability, taking into consideration information from the evaluation conducted by the district and information provided by the parents, the district shall provide special education and related services to the child in accordance with all the provisions of the law.

EXPEDITED DUE PROCESS HEARINGS

  Expedited due process hearing must:

1.  Result in a written decision being mailed to the parties within forty-five (45) days of the district's receipt of the request for the hearing without exceptions or extensions;

2.  meet the requirements for impartial due process hearing, except that the State may provide that the time periods identified for a due process hearing for the purpose of expedited due process hearings are not less than two business days: and

3.  be conducted by a due process hearing officer who satisfies the requirements of impartial due process hearing officer.

4.  the decisions on expedited hearings are subject to civil action.

Nothing in this part prohibits a school district from reporting a crime committed by a child with a disability to appropriate authorities or to prevent State law enforcement and judicial authorities exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability.  A district reporting a crime committed by a child with a disability shall ensure that copies of the special education and disciplinary records of the child are transmitted for consideration by the appropriate authorities to whom it reports the crime.

A school district reporting a crime under this section may transmit copies of the student's special education and disciplinary records only to the extent that the transmission is permitted by the Family Educational Rights and Privacy Act.

COMPLAINTS

If you believe the school district has violated a federal or state regulation, you may file a complaint with the Office of Special Education.  Upon receiving your written complaint, an investigation will be completed.

A complaint is a written signed statement by an individual or organization, including a complaint filed by an individual or organization from another state containing a statement that the state education agency or a school district has violated a requirement of federal or state statues or regulations that apply to a program and a statement of the facts on which the complaint is based.

In resolving the complaint in which the Division has found a failure to provide appropriate services, the Division, pursuant to its general supervisory authority under Part B of the IDEA, must address:

1.  How to remediate the denial of those services, including as appropriate, the awarding of monetary reimbursement of other corrective action appropriate to the needs of the child: and

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

The secretary of the Department of Education appoints a complaint investigation team form the Office of Special Education.  The team may conduct an on-site investigation if it determines that one is necessary.  The complaint team shall give the complainant the opportunity to submit additional information, either orally or in writing, about the allegation in the complaint.  The complaint team makes a recommendation to the secretary, and after reviewing all relevant information, the secretary shall determine whether the complaint is valid.  The secretary shall submit a written report of the final decision to all parties involved, including finding of fact, conclusions, and reasons for final decision.

All complaints must be resolved within 60 calendar days after the receipt of the complaint by the secretary as stated in this section.  An extension of the 60 day time limit may be granted only if exceptional circumstances exist with respect to a particular complaint.  This section does not limit any other rights to appeals, including appeal to the state board; however, these appeals may not be used for delay or to extend time limits.

If a written complain is received that is also the subject of a due process hearing, or contains multiple issues, of which one or more are part of that hearing, the Division 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 this section.

If an issue is raised in a complaint filed under this section that has previously been decided in a due process hearing involving the same parties:

1.  The hearing decision is binding; and

2.  The Division must inform the complainant to that effect.

A compliant alleging a district's failure to implement a due process hearing decision must be resolved by the Division.

The record of the hearing and the findings and decisions must be provided at no cost to you.

MEDIATION

Mediation is an effective way to resolved differences between you and the school district.  Mediation is free and conducted by someone who is not employed by the school district.

The State shall ensure that procedures are established and implemented to allow parties to disputes involved in the proposal to initiate or change the identification, evaluation or education placement of the child or the provision of a free appropriate public education to the child to resolve the disputes through a mediation process.  This process must be available at a minimum whenever a due process hearing is requested or when placement of a child is changed due to disciplinary processes.

The mediation procedures must ensure that participation is voluntary on the part of the parties.  Mediation may not be used to deny or delay the parent's right to a due process hearing or to deny any other rights afforded under Part B of the Act.  It must be conducted by a qualified and impartial mediator who is trained in effective mediation techniques.  Mediators are selected on a random basis.

The State Office of Special Education shall 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.  An individual who serves as a mediator may not be an employee of the school district, or State agency providing services to the child.  They must not have a personal or professional conflict of interest.  The State will bear the cost of the mediation process.

A person who otherwise qualifies as a mediator is not an employee of a district or State agency solely because he or she is paid by the Division to serve as a mediator.

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.  An agreement reached by the parties to the dispute in the mediation must be set forth in a written mediation agreement.

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 proceedings.  The parties to the mediation process may be required to sign a confidentiality pledge prior to the beginning of the process.

If you choose not to use the mediation process, the school district or a State agency providing services to the child, may establish procedures to require you to meet, at a time and location convenient to you, with a disinterested party, to encourage the use and explain the benefits of the mediation process to you.  This party may be under contract with a parent training and information center, community parent resource center established in the state or with an appropriate alternative dispute resolution entity.

IMPARTIAL DUE PROCESS HEARINGS

If you are unable to resolve your differences through the mediation process, a due process hearing will be held.  This hearing is a legal process in which both parties present their differing viewpoints to a hearing officer.  The hearing officer writes a finding or fact and decision based on the information presented by both parties.

You or the school district may initiate a hearing on any matters relating to the identification, evaluation or educational placement of your child or the provision of a free appropriate public education to your child.  When a hearing is initiated, the district shall inform you of the availability of mediation.  If you are requesting a hearing request information on any free or low-cost legal services, the district shall inform you of it and any other relevant services available in the area.

The district must have procedures that require you as the parent of a child with a disability or the attorney representing the child, to provide notice ( which must remain confidential) to the district in a request for a hearing.  The notice provided 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.  A description of the nature of the problem of the child relating to the proposed initiation or change, including facts relating to the problem; and

5.  A proposed resolution of the problem to the extent known and available to the parents at the time.

The State Office of Special Education has developed a model form to assist parents in filing a request for due process that includes the information required, and referenced in the above paragraph.  The district may not deny or delay your right to a due process hearing for failure to provide the notice.

A hearing may not be conducted:

1.  By a person who is an employee of the State agency, or the school district that is involved in the education or care of the child; or

2.  By any person having a personal or professional interest that would conflict with his or her objectivity in the hearing.

A person who otherwise qualifies to conduct a hearing under this section is not an employee of the agency solely because he or she is paid by the agency to serve as a hearing officer.  The Office of Special Education and district shall keep a list of the persons who serve as hearing officers.  The list must include a statement of the qualifications of each of those persons.

Any party to a hearing, has the right to:

1.  Be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities.

2.  Present evidence and confront cross-examine,  and compel the attendance of witnesses;

3.  Prohibit the introduction of any evidence at the hearing that has not been disclosed to that party at least 5 business days before the hearing.

4.  Obtain a written, or, at the option of the parents, electronic, verbatim record of the hearing; and

5.  Obtain written, or, at the option of the parents, electronic findings of fact and decisions.

At least 5 business days prior to a hearing, each party shall disclose to all other parties all evaluations completed by that date and recommendations based on the offering party's evaluations that they party intends to use at the hearing.

A hearing officer may bar any party that fails to comply with the disclosure requirements of this section form introducing the relevant evaluation or recommendation at the hearing without the consent of the other  party. 

As a parent involved the hearings, you have the right to:

1.  have the child who is the subject of the hearing present; and

2.  open the hearing to the public.

The record of the hearing and the findings of fact and decisions must be provided at no cost to you.

The office of Special Education, after deleting and personally identifiable information, shall transmit the findings and decisions to the State advisory panel, and make those findings and decisions available to the public.

A decision made in a hearing is final, except that any party involved in the hearing may appeal the decision through civil action.

The Office of Special education and district shall ensure that not later than 45 days after the receipt of a request for a hearing:

1.  a final decision is reached in the hearing: and

2.  a copy of the decision is mailed to each of the parties.

CIVIL ACTIONS

Any party aggrieved by the findings or decisions made through the hearing process has the right to bring a civil action with respect to the complaint presented in the hearing.  The action may be brought in any State court of competent jurisdiction or in a district court of the United States without regard to the amount of controversy.

In any action brought under the section, the court;

1.  Shall receive the records of the administrative proceedings;

2.  Shall hear additional evidence at the request of a party; and

3.  Basing its decision on the preponderance of the evidence, shall grant the relief that the court determines to be appropriate.

The district courts of the United States have jurisdiction of actions brought under section 615 of the IDEA without regard to the amount in controversy.  Nothing in this part restricts or limits the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under these laws seeking relief that is also available under section 615 of the IDEA, the due process hearing procedures must be exhausted to the same extent as would be required had the action been brought under section 615 of the IDEA.

ATTORNEYS' FEES

In any action or proceeding brought under section 615 of the IDEA, the court, in its discretion, may award reasonable attorneys' fees as part of the costs to the parent of a child with a disability who is the prevailing party.

Funds under Part B of the IDEA may not be used to pay attorneys' fees or costs of a party related to an action or proceeding under section 615 of the IDEA and state rule.

This section does not preclude a district from using funds under Part B of the IDEA for conducting an action or proceeding under section 615 of the IDEA

A court awards reasonable attorney's fees under section 615 (i) (3) of the IDEA consistent with the following:

Fees awarded under section 615 (i) (3) of the IDEA must be based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished.  No bonus or multiplier may be used in calculating the fees awarded under this section.

Attorneys' fees may not be awarded and related costs may not be reimbursed in any action or proceedings under section 615 of the IDEA for services performed subsequent to the time of a written offer of settlement to a parent if:

1.  The offer is made within the time prescribed by Rule 68 of the Federal Rules of Civil Procedures or, in the case of an administrative proceedings, at any time more than 10 days before the proceedings begins:

2.  The offer is not accepted within 10 days; and

3.  The court or administrative hearing officer finds that the relief finally obtained by the parents is not more favorable to the parents that the offer of settlement.

Attorneys' fees may not be awarded relating to any meeting of the IEP team unless the meeting is convened as a result of an administrative proceeding or judicial action, or the discretion of the Division for a mediation that is conducted prior to the filing of a request for due process.

Notwithstanding the above provisions, an award of attorneys' fee and related costs may be made to a parent who is the prevailing party and who was substantially justified in rejecting the settlement offer.

Except as provided in this section, the court reduces, accordingly, the amount of the attorney's fees awarded under section 615 of IDEA, if the court finds that:

1.  The parent, during the course of the action or proceedings, unreasonably protracted the final resolution of the controversy:

2.  The amount of the attorneys' fee otherwise authorized to be awarded unreasonably exceeds the hourly rate prevailing in the community for similar services by attorneys of reasonably comparable skill, reputation, and experience;

3.  The time spent and legal services furnished were excessive considering the nature of the action or proceeding; or

4.  The attorney representing the parent did not provide to the school district the appropriate information in the due process complaint in accordance with this section.

The above provisions do not apply in any action or proceeding if the court finds that the Division or district unreasonably protracted the final resolution of the action or proceeding or there was a violation of section 615 of the IDEA.

MAINTENANCE OF CURRENT EDUCATIONAL PLACEMENT

Pending any administrative or judicial proceeding regarding a complaint, unless the district and parents of the child agree otherwise, the child involved in the complaint shall remain in their current educational placement.  Or, if applying for initial admission to a public school, shall, with the consent of the parents, be placed in the public school program until all such proceedings have been completed.  This section applies to all proceedings with exceptions as provided under placements in alternative educational settings.

If the decision of a hearing officer in a due process hearing conducted by the Division agrees with the child's parents that a change of placement is appropriate, that placement must be treated as an agreement between the district and the parents for the purposes of pendency.

SURROGATE PARENTS

If a child's parents cannot be identified, if the district, after making reasonable effort, is unable to discover the location of the parent or if the child is a ward of the State, an individual must be assigned by the school district to act in the role of parent.

The term "parent" means a natural or adoptive parent, a guardian, a person acting as a parent of a child (such as grandparent or stepparent with whom the child lives, as well as persons legally responsible for the child's welfare), or a surrogate who has been appointed under these procedures.  This term does not include the State if the child is a ward of the State.  Unless State law prohibits a foster parent from acting as a parent, the Division may provide that a foster parent qualifies as a parent under Part B of the IDEA if:

1.  the natural parents authority to make educational decisions on the child's behalf has been extinguish under State Law.

2.  The foster parent has an ongoing long-term relationship with the child.

3.  The foster parent is willing to make the educational decisions required of parents under the IDEA; and

4.  The foster parent has no interest that would conflict with the interests of the child.

The district shall ensure that the rights of a child are protected if:

1.  No parent can be identified;

2.  The district, after reasonable efforts, cannot discover the whereabouts of the parents; or

3.  The child is a ward of the State under the laws of South Dakota.

The duty of the district to assign an individual to act as a surrogate for the parents must include a method:

1.  For determining whether a child needs a surrogate parent; and

2.  For assigning a surrogate parent to the child.

The district may select a surrogate parent in any way permitted under State law.  The district shall ensure that a person selected as a surrogate :

1.  Is not an employee of the Office of Special Education, school district, or any other agency that is involved in the education or care of the child:

2.  Has no interest that conflicts with the interest of the child he or she represents; and

3.  Has knowledge and skills that ensure adequate representation of the child.

A district may select as a surrogate a person who is an employee of a nonpublic agency that only provided non-educational care for the child and meets the standards in items 2 and 3 above.

A person assigned as a surrogate may not be an employee of a public agency that is involved in the education or care of the child.  A person who otherwise qualifies to be a surrogate parent under this section is not an employee of the district solely because he or she is paid by the district to serve as a surrogate parent.

The surrogate parent may represent the child is all matters relating to the identification, evaluation and educational placement of the child, and the provision of a free appropriate public education (FAPE) to the child.

TRANSFER OF PARENTAL RIGHTS AT AGE OF MAJORITY

When an student receiving special education and related services reaches age 18, the rights given to his or her parents now are provided to the student.  Some special provisions apply  for situations when the student is not able to make  decisions on their own behalf.

A State may provide that when a child with a disability reaches the age of majority under State law that applies to all children (except for a child with a disability who has been determined to be incompetent under State law), the district shall provide any notice required under special education to both the individual and the parents.  All other rights accorded to parents under Part B of the IDEA transfer to the child at that time.  All rights accorded to parents under Part B of the IDEA transfer to children who are incarcerated in an adult or juvenile, State, or local correctional institution.

Whenever a State transfers rights under special education, the district shall notify the individual and the parents of the transfer of rights.

If under State law, a state has the mechanism to determine that a child with a disability upon reaching the age of majority under state law that applies to all children and has not been determined incompetent under state law, is determined not to have the ability to provide informed consent with respect to the educational program of the student, the State shall establish procedures for appointing the parent or if the parent is not available another appropriate individual, to represent the educational interests of the student throughout the student's eligibility under Part  B of the IDEA

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