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    Part B

    Notice of Procedural Safeguards for Parents of Students with Disabilities 

     


    As a parent, you are entitled to information about your rights under the Individuals with Disabilities Education Act (IDEA). These rights, or procedural safeguards, are intended to ensure that you have the opportunity to  be a partner in the educational decisions made regarding your child.

     

    This notice of your procedural safeguards will be made available to you, at least one time a school year, except that a copy also must be given to you:

    • Upon initial referral or your request for an evaluation
    • In accordance with the discipline procedures when a change in placement occurs
    • Upon receipt of the first State complaint in a school year
    • Upon the receipt of the first request for a due process hearing in a school year
    • In accordance with the provisions of Section 212, F.S., upon the school district superintendent’s recommendation to the Commissioner of Education that an extraordinary exemption for a given state assessment be granted or denied
    • Upon your request to receive a copy

     You may elect to receive a copy of your procedural safeguards and required notices by email if the school district makes that option available. A district may also place a current copy of the procedural safeguards notice on its Internet website.

     This pamphlet helps parents of children in Florida understand the rights that go along with programs for students with disabilities. It includes a description of the procedural safeguards that apply to students with disabilities enrolled in public schools and those that apply to students with disabilities enrolled by their parents in nonprofit private schools.

     

    Parents who have issues with the district regarding their student’s exceptional student education may be able to resolve those issues informally at the local level. However, administrative remedies (mediation, state complaint, and due process hearing request) are also available.


    Table of Contents

    General Information..........................1

    Revocation of Parental Consent...........5

    Confidentiality of Information .............5

    Mediation .........................................7

    State Complaint Procedures.................8

    Due Process Hearing Request Procedures............9

    Due Process Hearings...........................12

    Appeals.............................................14

    Procedures When Disciplining Students with Disabilities.............15

    Requirements for Unilateral Placement by Parents of Students in Private Schools at Public Expense..........19

    Requirements for Students with Disabilities Enrolled by Their Parents in Private Schools...........19


    Under the IDEA, you have the following rights:

    GENERAL INFORMATION

    PRIOR WRITTEN NOTICE


    34 Code of Federal Regulations (CFR) §300.503 Notice

    Your school district must give you notice in writing whenever it:

    1. Proposes to initiate or to change the identification, evaluation,              eligibility determination, or educational placement of your child, or the provision of a free appropriate public education (FAPE) to your child; or
    2. Refuses to initiate or to change the identification, evaluation, eligibility determination or educational placement of your child or the provision of FAPE to your

     

    Content of notice

    The written notice must:

    1. Describe the action that your school district proposes or refuses to take;
    2. Explain why your school district is proposing or refusing to take action;
    3. Describe each evaluation procedure, assessment, record, or report your school district used in deciding to propose or refuse the action;
    4. Include a statement that you have protections under the procedural safeguards provisions in Part B of the IDEA;
    5. Tell you how you can obtain a copy of a description of the procedural safeguards if the

     

    action that your school district is proposing or refusing is not an initial referral for evaluation;

    1. Include resources for you to contact for help in understanding Part B of the IDEA;
    2. Describe any other choices that your child's individual educational plan (IEP) team considered and the reasons why those choices were rejected; and
    3. Provide a description of other reasons why your school district proposed or refused the

     

    Notice in understandable language

    The notice must be:

    1. Written in language understandable to the general public; and
    2. Provided in your native language or other mode of communication you use, unless it is clearly not feasible to do

     

    If your native language or other mode of communication is not a written language, your school district must ensure that:

    1. The notice is translated for you orally by other means in your native language or other mode of communication;
    2. You understand the content of the notice; and
    3. There is written evidence that 1 and 2 have been

    NATIVE LANGUAGE 34 CFR §300.29


    Native language, when used with an individual who has limited English proficiency, means the following:

    1. The language normally used by that person, or, in the case of a student, the language normally used by the student’s parents;
    2. In all direct contact with a student (including evaluation of the student), the language normally used by the student in the home or learning

     

    For a person with deafness or blindness, or for a person with no written language, the mode of communication is what the person normally uses (such as sign language, braille, or oral communication).

    ELECTRONIC MAIL 34 CFR §300.505


    If your school district offers parents the choice of receiving documents by email, you may choose to receive the following by email:

    1. Prior written notice;
    2. Procedural safeguards notice; and/or
    3. Notices related to a due process hearing

     

    PARENTAL CONSENT – DEFINITION 34 CFR §300.9


    Consent

    Consent means:

    1. You have been fully informed in your native language or other mode of communication (such as sign language, braille, or oral communication) of all information about the action for which you are giving consent;
    2. You understand and agree in writing to that action, and the consent describes that action and lists the records (if any) that will be released and to whom; and
    3. You understand that the consent is voluntary on your part and you may withdraw your consent at

     

    Your withdrawal of consent does not negate (undo) an action that has occurred after you gave your consent and before you withdrew it.

    PARENTAL CONSENT 34 CFR §300.300


    Consent for initial evaluation

    Your school district cannot conduct an initial evaluation of your child to determine whether your child is eligible under Part B of the IDEA to receive special education and related services without first providing you with prior written notice of the proposed action and without obtaining your consent as described under the heading Parental Consent.

     

    Your school district must make reasonable efforts to obtain your informed consent for an initial evaluation to decide whether your child is a child with a disability. Your consent for initial evaluation does not mean that you have also given your consent for the school district to start providing special education and related services to your child.

     

    If your child is enrolled in public school, or you are seeking to enroll your child in a public school and you have refused to provide consent or failed to respond to a request to provide consent for an initial evaluation, your school district may, but is not required to, seek to conduct an initial evaluation of your child by using mediation or due process procedures. Your school district will not violate its obligations to locate, identify, and evaluate your child if it does not pursue an evaluation of your child in these circumstances.

     

    Special rules for initial evaluation of wards of the State

    If a child is a ward of the State and is not living with his/her parent —

     

    The school district does not need consent from the parent for an initial evaluation to determine if the student is a student with a disability if:

    1. Despite reasonable efforts to do so, the school district cannot find the student’s parent;
    2. The rights of the parents have been terminated in accordance with State law; or
    3. A judge has assigned the right to make educational decisions and to consent for an initial evaluation to an individual other than the

     

    Ward of the State, as used in the IDEA, means a student who, as determined by the State where the student lives, is:

    1. A foster child unless the child has a foster parent who meets the state definition of a parent;
    2. Considered a ward of the State under State law;

    or

    1. In the custody of a public child welfare

     

    Parental consent for the initial provision of services

    Your school district must obtain your informed consent before providing special education and related services to your child for the first time.

     

    If you do not respond to a request to provide your consent for your child to receive special education and related services for the first time, or if you refuse to give such consent, your school district may not use mediation or due process hearing procedures in order to obtain agreement or a ruling that the special education and related services (recommended by your child’s IEP team) may be provided to your child without your consent.

     

    If you refuse to give your consent for your child to receive special education and related services for the first time, or if you do not respond to a request to provide such consent and the school district does not provide your child with the special education and related services for which  it sought your  consent, your school district:

    1. Is not in violation of the requirement to make a FAPE available to your child for its failure to provide those services to your child; and
    2. Is not required to have an IEP team meeting or develop an IEP for your child for the special education and related services for which your consent was

     

    Parental consent for specific actions

    The school district must obtain your consent for the following specific actions if included in your child’s IEP, unless your school district can demonstrate that it took reasonable steps to obtain your consent and you did not respond.

    These actions include:

     

    1. Administration of the alternate assessment and provision of instruction in the state standards access points
    2. Placing your child in an exceptional student education center, except in the circumstance of a placement in an interim alternative education setting for violation of the district’s code of student conduct related to weapons; possession, use or sale of illegal drugs; or infliction of serious bodily injury upon another person (see page 16, Special circumstances).

     

    If the school district decides there is a need to change your child’s IEP as it relates to the actions described above, the school must hold an IEP meeting that includes you. The school must provide you with a written notice of this meeting at least 10 days before the meeting indicating the purpose, time, and location of the meeting and who, by title or position, will be attending the meeting. Once you receive this notice, you and the district may agree to meet earlier.

     

    If you refuse consent, the school district may obtain approval for these actions through a due process hearing. During the due process resolution period and while waiting for the decision of any impartial due process hearing or court proceeding, unless you and the school district agree otherwise, your child must remain in his or her current educational placement (see page 18, Due Process Hearing Request Procedures).

    Parental consent for reevaluations

    Your school district must obtain your informed consent before it reevaluates your child, unless your school district can demonstrate that:

    1. It took reasonable steps to obtain your consent for your child’s reevaluation; and
    2. You did not

     

    If you refuse to consent to your child’s reevaluation, the school district may, but is not required to, pursue your child’s  reevaluation by using the consent override provision of mediation or due process. As with initial evaluations, your school district does not violate its obligations under Part B of the IDEA if it declines to pursue the reevaluation in this manner.

     

    Documentation of reasonable efforts to obtain parental consent

    Your school must maintain documentation of reasonable efforts to obtain parental consent for initial evaluations, to provide special education and related services for the first time, to reevaluation, and to locate parents of wards of the State for initial evaluations. The documentation must include  a record of the school district’s attempts, 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

     

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

     

    Other consent requirements

    Your consent is not required before your school district may:

    1. Review existing data as part of your child’s evaluation or a reevaluation; or
    2. Give your child a test or other evaluation that is given to all students unless, before that test or evaluation, consent is required from all parents of all

     

    NOTE: In Florida, a parent must provide signed consent for a student to receive instructional accommodations that would not be permitted on the statewide assessments and must acknowledge in writing that he or she understands the implications of such accommodations. Your school district may not use your refusal to consent to one service or activity to deny you or your child any other service, benefit, or activity.

    If you have enrolled your child in a private school at your own expense, or if you are homeschooling your child, and you do not provide your consent for your child’s initial evaluation or your child’s reevaluation, or you fail to respond to a request to provide your consent, the school district may not use its consent override procedures of mediation and due process and is not required to consider your child as eligible to receive equitable services (services made available to parentally-placed private school students with disabilities).

    INDEPENDENT EDUCATIONAL EVALUATIONS 34 CFR §300.502


    General

    As described below, you have the right to obtain an independent educational evaluation (IEE) of your child if you disagree with the evaluation of your child that was obtained by your school district. If you request an IEE, the school district must provide you with information about where you may obtain an IEE and about the school district’s criteria that apply to IEEs.

    Definitions

    Independent educational evaluation (IEE) means an evaluation conducted by a qualified examiner who is not employed by the school district responsible for the education of your child.

     Public expense means that the school district either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to you.

     

    Parent right to evaluation at public expense

    You have the right to an IEE of your child at public expense if you disagree with an evaluation of your child obtained by your school district, subject to the following conditions:

    1. If you request an IEE of your child at public expense, your school district must, without unnecessary delay, either: (a) Provide an IEE at public expense, or (b) File a due process hearing request to show that its evaluation of your child is appropriate; unless the school district demonstrates in a hearing that the evaluation of your child that you obtained did not meet the school district’s
    2. If your school district requests a hearing and the final decision is that your school district’s evaluation of your child is appropriate, you still have the right to an IEE, but not at public
    3. If you request an IEE of your child, the school district may ask why you object to the evaluation of your child obtained by your school However, your school district may not require an explanation and may not unreasonably delay either providing the IEE of your child at public expense or filing a due process complaint to request a due process hearing to defend the school district’s evaluation of your child.

     

    You are entitled to only one IEE of your child at public expense each time your school district conducts an evaluation of your child with which you disagree.

    Parent-initiated evaluations

    If you obtain an IEE of your child at public expense or you share with the school district an evaluation of your child that you obtained at private expense:

    1. Your school district must consider the results of the evaluation of your child, if it meets the school district’s criteria for IEEs, in any decision made with respect to the provision of a FAPE to your child; and
    2. You or your school district may present the evaluation as evidence at a due process hearing regarding your

     

    Requests for evaluations by hearing officers

    If a hearing officer requests an IEE of your child as part of a due process hearing, the cost of the evaluation must be at public expense.

     

    School district criteria

    If an IEE 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 school district uses when it initiates an evaluation (to the extent those criteria are consistent with your right to an independent educational evaluation). Except for the criteria described above, a school district may not impose conditions or timelines related to obtaining an IEE at public expense.

     

    REVOCATION OF PARENTAL CONSENT

    GENERAL INFORMATION 34 CFR §300.300(b)(4)


    If, at any time subsequent to the initial provision of special education and related services, the parent of a student revokes consent in writing for the continued provision of special education and related services, the school district may not continue to provide special education and related services to the student, but must provide prior written notice before ceasing the provision of special education and related services. The school district may not use mediation or due process hearing procedures in order to obtain agreement or a ruling that the services may be provided to the student.

     

    If you  revoke your consent for the continued provision of special education and related services to your child, your school district:

    1. Will not be considered to be in violation of the requirement to make a FAPE available to your child for its failure to provide the student with further special education and related services to your child; and
    2. Is not required to convene an IEP team meeting or develop an IEP for the student for further provision of special education and related

     

    If you revoke consent in writing for your child’s receipt of special education services after the child is initially provided special education and related services, the school district is not required to amend your child’s education records to remove any references to the child’s receipt of special education and related services because of the revocation of consent.

     

     

    CONFIDENTIALITY OF INFORMATION

    DEFINITIONS 34 CFR §300.611


    As used under the heading Confidentiality of Information:

    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 (FERPA) of 1974, 20 U.S.C. 1232g.

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

     PERSONALLY  IDENTIFIABLE     34 CFR §300.32


    Personally identifiable means information that has:

    • Your child’s name, your name as the parent, or the name of another family member;
    • Your child’s address;
    • A personal identifier, such as your child’s social security number or student number; or
    • A list of personal characteristics or other information that would make it possible to identify your child with reasonable

    NOTICE TO PARENTS 34 CFR §300.612


    The Department of Education must give notice that is adequate to fully inform parents about confidentiality of personally identifiable information, including:

    1. A description of the extent to which the notice is given in the native languages of the various population groups in the state;
    2. A description of the students 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 of the rights of parents and children regarding this information, including the rights under the FERPA and its implementing regulations in 34 CFR Part

     

    Before any major identification, location, or evaluation activity (also known as “child find”), 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 to locate, identify, and evaluate children in need of special education and related services.

    ACCESS RIGHTS 34 CFR §300.613 §1002.22(3)(a)4, F.S.


    The participating agency must permit you to inspect and review any education records relating to your child that are collected, maintained, or used by your school district under Part B of the IDEA. The participating agency must comply with your request to inspect and review any education records on your child  without  unnecessary  delay  and  before  any meeting regarding an individual educational plan (IEP), or any impartial due process hearing (including a resolution meeting or a hearing regarding discipline), and in no case more than 30 calendar days after you have made a request.

     Your right to inspect and review education records includes:

    1. Your right to a response from the participating agency to your reasonable requests for explanations and interpretations of the records;
    2. Your right to request that the participating agency provide copies of the records if you cannot effectively inspect and review the records unless you receive those copies; and
    3. Your right to have your representative inspect and review the

    The participating agency may presume that you have authority to inspect and review records relating to your child unless advised that you do not have the authority under applicable State law governing such matters as guardianship or separation and divorce.

    RECORD OF ACCESS 34 CFR §300.614


    Each participating agency must keep a record of parties obtaining access to education records collected, maintained, or used under Part B of the IDEA (except access by parents and authorized employees of the participating agency), including the name of the party, the date access was given, and the purpose for which the party is authorized to use the records.

    RECORDS ON MORE THAN ONE CHILD 34 CFR §300.615


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

    LIST OF TYPES AND LOCATIONS OF INFORMATION 34 CFR §300.616


    On request, each participating agency must provide you with a list of the types and locations of education records collected, maintained, or used by the agency.

     

    FEES 34 CFR §300.617


    Each participating agency may charge a fee for copies of records that are made for you under Part B of the IDEA, if the fee does not effectively prevent you from exercising your right to inspect and review those records. A participating agency may not charge a fee to search for or to retrieve information under Part B of the IDEA.

     

    AMENDMENT OF RECORDS AT PARENTS REQUEST 34 CFR §300.618


    If  you  believe  that  information  in  the  education

    records regarding your child collected, maintained, or used under Part B of the IDEA is inaccurate, misleading, or violates the privacy or other rights of your child, you may request the participating agency that maintains the information to change the information. The participating agency must decide whether to change the information in accordance with your request within a reasonable period of time of receipt of your request. If the participating agency refuses to change the information in accordance with your request, it must inform you of the refusal and advise you of the right to a hearing for this purpose as described under the heading Opportunity For a Hearing.

    OPPORTUNITY FOR A HEARING 34 CFR §300.619


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

    HEARING PROCEDURES 34 CFR §300.621


    A hearing to challenge information in education records must be conducted according to the procedures for such hearings under the FERPA.

    RESULT OF HEARING 34 CFR §300.620


    If, as a result of the hearing, the participating agency decides that the information is inaccurate, misleading, or otherwise in violation of the privacy or other rights of the student, it must change the information accordingly and inform you in writing. If, as a result of the hearing, the participating agency decides that the information is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of your child, it must inform you of your right to place in the records that it maintains on your child a statement commenting on the information or providing any reasons you disagree with the decision of the participating agency.

    Such an explanation placed in the records of your child must:

    1. Be maintained by the participating agency as part of the records of your child as long as the record or contested portion is maintained by the participating agency; and
    2. If the participating agency discloses the records of your child or the challenged portion to any party, the explanation must also be disclosed to that

     

    CONSENT FOR DISCLOSURE OF PERSONALLY  IDENTIFIABLE INFORMATION  34 CFR §300.622


    Unless the information is contained in education records, and the disclosure is authorized without parental consent under FERPA, your consent must be obtained before personally identifiable information is disclosed to parties other than officials of participating agencies. Except under the circumstances specified below, your consent is not required before personally identifiable information is released to officials of participating agencies for purposes of meeting a requirement of Part B of the IDEA.

     Your consent, or consent of an eligible student who has reached the age of majority under State law, must be obtained before personally identifiable information is released to officials of participating agencies providing or paying for transition services.

    If your child is in, or is going to go to, a private school that is not located in the same school district you reside in, your consent must be obtained before any personally identifiable information about your child is released between officials in the school district where the private school is located and officials in the school district where you reside.

     

    SAFEGUARDS34 CFR §300.623


    Each participating agency must protect the confidentiality of personally identifiable information at collection, storage, disclosure, and destruction stages. One official at each participating agency must assume responsibility for ensuring the confidentiality of any personally identifiable information. All persons collecting or using personally identifiable information must receive training or instruction regarding our State’s policies and procedures regarding confidentiality under Part B of the IDEA and the FERPA. Each participating agency must maintain, for public inspection, a current listing of the names and positions of those employees within the agency who may have access to personally identifiable information.

     DESTRUCTION OF INFORMATION   34 CFR §300.624


    Your school district must inform you when personally identifiable information collected, maintained, or used 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, and phone number, his or her grades, attendance record, classes attended, grade level completed, and year completed may be maintained without time limitation.

     

    CHILDRENS RIGHTS 34 CFR §300.625


    Under the regulations for FERPA in 34 CFR 99.5(a),

    your rights regarding education records are transferred to your child at age 18.

    If the rights accorded to you under IDEA are transferred to your child who reaches the age of majority, consistent with 34 CFR 300.520, the rights regarding educational records also are transferred to your child. However, the school district must provide any notice required under §615 of the Act or Florida State Board of Education Rules 6A-6.03011 through 6A-6.0361, Florida Administrative Code (F.A.C.), to you and the student.

     

    MEDIATION

    GENERAL INFORMATION 34 CFR §300.506


    The school district must make mediation available to allow you and the school district to resolve disagreements involving any matter under Part B of the IDEA, including matters arising prior to the filing of a due process complaint. Thus, mediation is available to resolve disputes under Part B of the IDEA, whether or not you have filed a due process complaint to request a due process hearing as described under the heading Filing a Due Process Hearing Request.

     

    Requirements

    The procedures must ensure that the mediation process:

    1. Is voluntary on your part and the school district’s part;
    2. Is not used to deny or delay your right to a due process hearing, or to deny any other rights you have under Part B of the IDEA; and
    3. Is conducted by a qualified and impartial mediator who is trained in effective mediation

     

    The school district may develop procedures that offer parents and schools that choose not to use the mediation process an opportunity to meet, at a time and location convenient to you, with a disinterested party:

    1. 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; and
    2. Who would explain the benefits and encourage the use of the mediation process to

     

    The State must have a list of people who are qualified mediators and know the laws and regulations relating to the provision of special education and related services. The Department of Education must select

     

    mediators on a random, rotational, or other impartial basis.

     

    The State is responsible for the cost of the mediation process, including the costs  of meetings. Each meeting in the mediation process must be scheduled in a timely manner and held at a place that is convenient for you and the school district. Both the parent and the school district may be required to sign a confidentiality pledge prior to the commencement of the mediation process.

     

    If you and the school district resolve a dispute through the mediation process, both parties must enter into a legally binding agreement that sets forth the resolution and that:

    1. States that all discussions that happened during the mediation process will remain confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding; and
    2. Is signed by both you and a representative of the school district who has the authority to bind the school

     

    A written, signed mediation agreement is enforceable in any State court of competent jurisdiction (a court that has the authority under State law to hear this type of case) or in a district court of the United States.

     

    Discussions that happened during the mediation process must be confidential. They cannot be used as evidence in any future due process hearing or civil proceeding of any federal court or State court of a State receiving assistance under Part B of IDEA.

     

    Impartiality of mediator

    The mediator:

    1. May not be an employee of the Department of Education or any school district or any State agency that receives IDEA funds through the Department of Education; and
    2. Must not have a personal or professional interest that conflicts with the mediator’s

     

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

     

    STATE COMPLAINT PROCEDURES

    DIFFERENCES BETWEEN DUE PROCESS HEARING AND STATE COMPLAINT PROCEDURES


    The regulations for Part B of IDEA set forth separate procedures for State complaints and for due process complaints and hearings. As explained below, any individual or organization may file a State complaint alleging a violation of any Part B requirement by a school district, the Department of Education, or any other public agency. Only you or a school district

     

    may file a due process complaint on any matter relating to a proposal or a refusal to initiate or change the identification, evaluation, or educational placement of a student with a disability, or the provision of a FAPE to the student. Although staff of the Department of Education generally must resolve a State complaint within a 60-calendar-day timeline, unless the timeline is properly extended, an impartial due process hearing officer must hear a due process complaint (if not resolved through a resolution meeting or through mediation) and issue a written decision within 45 calendar days after the end of the resolution period, as described in this document under the heading Resolution Process, unless the hearing officer grants a specific extension of the timeline at your request or the school district's request. The State complaint and due process complaint, resolution, and hearing procedures are described more fully below.

    ADOPTION OF STATE COMPLAINT PROCEDURES 34 CFR §300.151


    General

    The Department of Education must have written procedures for:

    1. Resolving any complaint, including a complaint filed by an organization or individual from another State;
    2. Widely disseminating the State complaint procedures to parents and other interested individuals, including parent training and information centers, protection and advocacy agencies, independent living centers, and other appropriate

     

    Remedies for denial of appropriate services

    In resolving a State complaint in which the Department of Education has found a failure to provide appropriate services, the Department of Education must address:

    1. The failure to provide appropriate services, including corrective action appropriate to address the needs of the student; and
    2. Appropriate future provision of services for all children with

    MINIMUM STATE COMPLAINT PROCEDURES 34 CFR §300.152


    Time limit; minimum procedures

    The Department of Education must include in  its State complaint procedures a time limit of 60 calendar days after a complaint is filed to:

    1. Carry out an independent on-site investigation, if the Department of Education 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 school district or other public agency with the opportunity to respond to the complaint,

     

    including, at a minimum: (a) at the option of the agency, a proposal to resolve the complaint; and

    (b) an opportunity for a parent who has filed a complaint and the agency to agree voluntarily to engage in mediation;

    1. Review all relevant information and make an independent determination as to whether the school district or other public agency is violating a requirement of Part B of the IDEA; and
    2. Issue a written decision to the complainant that addresses each allegation in the complaint and contains: (a) findings of fact and conclusions; and (b) the reasons for the Department of Education’s final decision

     

    Time extension; final decision; implementation  The Department of Education’s procedures described above also must:

    1. Permit an extension of the 60-calendar-day time limit only if: (a) exceptional circumstances exist with respect to a particular State complaint; or

    (b) the parent and the school district or other public agency involved voluntarily agree to extend the time to resolve the matter  through mediation or alternative means of dispute resolution, if available in the State.

    1. Include procedures for effective implementation of the Department of Education’s final decision, if needed, including: (a) technical assistance activities; (b) negotiations; and (c) corrective actions to achieve

     

    NOTE: Complaints limited to gifted education are covered by State Board of Education Rule 6A- 6.03313, Procedural Safeguards for Exceptional Students who are Gifted, and have a 90-calendar- day limit unless there is an approved extension for exceptional circumstances.

     

    State complaints and due process hearings

    If a written State complaint is received that is also the subject of a due process hearing as described below under the heading Filing a Due Process Hearing Request, or the State complaint contains multiple issues of which one or more are part of such a hearing, the State must set aside the State complaint, or any part of the State complaint that is being addressed in the due process hearing, until the hearing is over. Any issue in the State complaint that is not a part of the due process hearing must be resolved using the time limit and procedures described above.

     

    If an issue raised in a State complaint has previously been decided in a due process hearing involving the same parties (you and the school district), then the due process hearing decision is binding on that issue and the Department of Education must inform the complainant that the decision is binding.

     

    A complaint alleging a school district’s or other public agency’s failure to implement a due process hearing decision must be resolved by the Department of Education.

     FILING  A  STATE  COMPLAINT   34 CFR §300.153


    An organization or individual may file a signed written State complaint under the procedures described above.

     

    The State complaint must include:

    1. A statement that a school district or other public agency has violated a requirement of Part B of the IDEA or its regulations, or state requirements;
    2. The facts on which the statement is based;
    3. The signature and contact information for the complainant; and
    4. If alleging violations regarding a specific student:
      • The name of the student and address of the residence of the student;
      • The name of the school the student is attending;
      • In the case of a homeless student or youth, available contact information for the student and the name of the school the student is attending;
      • A description of the nature of the problem of the student, including facts relating to the problem; and
      • A proposed resolution of the problem to the extent known and available to the party filing the complaint at the time the complaint is

     

    The complaint must allege a violation that occurred not more than one year prior to the date that the complaint is received.

     

    The party filing the State complaint must forward a copy of the complaint to the school district or other public agency serving the student at the same time the party files the complaint with the Department of Education.

    DUE PROCESS HEARING REQUEST PROCEDURES

      FILING A DUE PROCESS HEARING  REQUEST     34 CFR §300.507


    General

    You or the school district may file a due process hearing request on any matter relating to a proposal or a refusal to initiate or change the identification, evaluation, eligibility determination, or educational placement of your child or the provision of a FAPE to your child.

     

    In addition, in accordance with §1008.212, F.S., in the event that your school district superintendent requests that an extraordinary exemption from participation in a state assessment be granted to your child and the Commissioner of Education denies this request, you have the right to request an expedited due process hearing. This request would be made to the Department of Education. Upon your request, you would be informed of any free or low-cost legal services and other relevant services available. The Department of Education will arrange a hearing on this matter with the State of Florida Division of Administrative Hearings. The hearing must begin within 20 school days following receipt of your request. The  administrative law judge (ALJ) must make a determination within 10 school days after the expedited hearing is completed.

     

    The due process hearing request must allege a violation that happened not more than two years before you or the school district knew or should have known about the alleged action that forms the basis of the due process complaint.

     

    The above timeline  does not  apply to you if you could not file a due process hearing request within the timeline because:

    1. The school district specifically misrepresented that it had resolved the issues identified in the complaint; or
    2. The school district withheld information from you that it was required to provide you under Part B of the

     

    Legal Services

    The school district must inform you of any free or low-cost legal and other relevant services available in the area if you request the information, or if you or the school district file a due process hearing request.

    DUE PROCESS HEARING REQUESTS 34 CFR §300.508


    General

    In order to request a hearing, you or the school district (or your attorney or the school district’s attorney) must submit a due process hearing request to the other party. That due process hearing request must contain all of the content listed below and must be kept confidential.

    You or the school district, whichever one filed the due process hearing request, must also provide the Department of Education with a copy of the due process hearing request.

    Content of the due process hearing request

    The due process hearing request must include:

    1. The name of the student;
    2. The address of the student’s residence;
    3. The name of the student’s school;

     

    1. If the student is a homeless child or youth, the student’s contact information and the name of the student’s school;
    2. A description of the nature of the problem of the student relating to the proposed or refused action, including facts relating to the problem; and
    3. A proposed resolution of the problem to the extent known and available to you or the school district at the

     

    Notice required before a hearing on a due process hearing request

    You or the school district may not have a due process hearing until you or the school district (or your attorney or the school district’s attorney) files a due process hearing request that includes the information listed above.

     

    Sufficiency of due process hearing request

    In order for a due process hearing request to go forward, it must be considered sufficient. The due process hearing request will be considered sufficient (to have met the content requirements above) unless the party receiving the due process hearing request (you or the school district) notifies the hearing officer and the other party in writing, within 15 calendar days of receiving the due process hearing request, that the receiving party believes that the due process hearing request does not meet the requirements listed above.

     

    Within five calendar days of receiving  the notification the receiving party (you or the school district) considers a due process hearing request insufficient, the hearing officer must decide if the due process hearing request meets the requirements listed above and notify you and the school district in writing immediately.

     

    Due process hearing request amendment

    You or the school district may make changes to the due process hearing request only if:

    1. The other party approves of the changes in writing and is given the chance to resolve the due process hearing request through a resolution meeting, described below; or
    2. By no later than five days before the due process hearing begins, the hearing officer grants permission for the

     

    If the complaining party (you or the school district) makes changes to the due process hearing request, the timelines for the resolution meeting (within 15 calendar days of receiving the due process hearing request) and the time period for resolution (within 30 calendar days of receiving the due process hearing request) start again on the date the amended due process hearing request is filed.

     

    Local educational agency (LEA) or school district response to a due process hearing request

    If the school district has not sent a prior  written notice to you, as described under the heading Prior Written Notice,  regarding the  subject matter contained in your due process hearing request, the school district must, within 10 calendar days of receiving the due process hearing request, send to you a response that includes:

    1. An explanation of why the school district proposed or refused to take the action raised in the due process hearing request;
    2. A description of other options that your student’s IEP team considered and the reasons why those options were rejected;
    3. A description of each evaluation procedure, assessment, record, or report the school district used as the basis for the proposed or refused action; and
    4. A description of the other factors that are relevant to the school district’s proposed or refused

     

    Providing the information in items 1–4 above does not prevent the school district from asserting that your due process hearing request was insufficient.

     

    Other party response to a  due process hearing request

    Except as stated under the sub-heading immediately above, LEA  or school district response to a due process hearing request, the party receiving a due process hearing request must, within 10 calendar days of receiving the due process hearing request, send the other party a response that specifically addresses the issues in the due process hearing request.

    MODEL FORMS 34 CFR §300.509


    In its role as the state educational agency (SEA), the Department of Education must develop model forms to help you file a due process hearing request and a state complaint. However, the SEA or the school district may not require you to use these model forms. In fact, you can use this form or another appropriate model form, provided it contains the required information for filing a due process hearing request or state complaint.

     

    STUDENT’S PLACEMENT DURING DUE PROCESS PROCEEDINGS 34 CFR §300.518


    Except as provided below under the heading Change of Placement Because of Disciplinary Removals, once a due process hearing request is sent to the other party, during the resolution process time period, and while waiting for the decision of any impartial due process hearing or court proceeding, unless you and the SEA or school district agree otherwise, your child must remain in his or  her current educational placement.

     

    If the due process hearing request involves an application for initial admission to public school, your child, with your consent, must be placed in the regular public school program until the completion of all such proceedings.

     

    If the due process hearing request involves an application for initial services under Part B of the IDEA for a child  who is transitioning from being served under Part C of the IDEA to Part B of the IDEA and who is no longer eligible for Part C services because the child has turned three, the school district is not required to provide the Part C services that the child has been receiving. If the child is found eligible under Part B of the IDEA and you consent for the child to receive special education and related services for the first time, then, pending the outcome of the proceedings, the school district must provide those special education and related services that are not in dispute (those which you and the school district both agree upon).

    RESOLUTION PROCESS 34 CFR §300.510


    Resolution meeting

    Within 15 calendar days of receiving notice of your due process hearing request, and before the due process hearing begins, the school district must convene a meeting with you and the relevant member or members of the IEP team who have specific knowledge of the facts identified in your due process hearing request. The meeting:

    1. Must include a representative of the school district who has decision-making authority on behalf of the school district; and
    2. May not include an attorney of the school district unless you are accompanied by an

     

    You and the school district determine the relevant members of the IEP team to attend the meeting.

     

    The purpose of the meeting is for you to discuss your due process hearing request, and the facts that form the basis of the due process hearing request, so that the school district has the opportunity to resolve the dispute.

     

    The resolution meeting is not necessary if:

    1. You and the school district agree in writing to waive the meeting; or
    2. You and the school district agree to use the mediation process, as described under the heading Mediation.

     

    Resolution period

    If the school district has not resolved the due process hearing request to your satisfaction within 30 calendar  days  of  the  receipt  of  the  due  process

     

    hearing request (during the time period for the resolution process), the due process hearing may occur.

     

    The 45-calendar-day timeline for issuing a final decision begins at the expiration of the 30-calendar- day resolution period, with certain exceptions for adjustments made to the 30-calendar-day resolution period, as described below.

     

    Except where you and the school district have both agreed to waive the resolution process or to use mediation, your failure to participate in the resolution meeting will delay the timelines for the resolution process and due process hearing until you agree to participate in a meeting.

     

    If after making reasonable efforts, and documenting such efforts, the school district is not able to obtain your participation in the resolution meeting, the school district may, at the end of the 30-calendar-day resolution period, request that the ALJ dismiss your due process hearing request. Documentation of such efforts must include a record of the school district’s attempts to arrange a mutually agreed upon time and place, such as:

    1. Detailed records of telephone calls made or attempted and the results of those calls;
    2. Copies of correspondence sent to you and any responses received; and
    3. Detailed records of visits made to your home or place of employment and the results of those

     

    If the school district fails to hold the resolution meeting within 15 calendar days of receiving notice of your due process hearing request or fails to participate in the resolution meeting, you may ask the ALJ to order that the 45-calendar-day due process hearing timeline begin.

     

    Adjustments to the 30-calendar-day resolution period

    If you and the school district agree in writing  to waive the resolution meeting, then the 45-calendar- day timeline for the due process hearing starts the next day.

     

    After the start of mediation or the resolution meeting and before the end of the 30-calendar-day resolution period, if you and the school district agree in writing that no agreement is possible, then the 45-calendar- day timeline for the due process hearing starts the next day.

     

    If you and the school district agree to use the mediation process, at the end of the 30-calendar-day resolution period, both parties can agree in writing to continue the mediation until an agreement is reached. However, if either you or the school district withdraws from the mediation process, then the 45-

     

    calendar-day timeline for the due process hearing starts the next day.

     

    Written settlement agreement

    If a resolution to the dispute is reached at the resolution meeting, you and the school district must enter into a legally binding agreement that is:

    1. Signed by you and a representative of the school district who has the authority to bind the school district; and
    2. Enforceable in any State court of competent jurisdiction (a State court that has authority to hear this type of case) or in a district court of the United States or by the Department of

     

    Agreement review period

    If you and the school district enter into an agreement as a result of a resolution meeting, either party (you or the school district) may void the agreement within three business days of the time that both you and the school district signed the agreement.

     

    DUE PROCESS HEARINGS

     IMPARTIAL DUE  PROCESS   HEARING   34 CFR §300.511


    General

    Whenever a due process hearing request is filed, you or the school district involved in the dispute must have an opportunity for an impartial due process hearing, as described in the Due Process Hearing Request and Resolution Process sections.

     

    NOTE: In addition to requesting mediation and filing a state complaint, parents and school districts have the right to request an impartial due process hearing. A request for a due process hearing may be made regarding any proposal or refusal of the school district to initiate or change the identification of, evaluation of, educational placement of, or provision of a FAPE to your child. Should a due process hearing be required, the hearing will be conducted by the Department of Education through an impartial ALJ with Florida’s Division of Administrative Hearings (DOAH) in accordance with applicable Florida Statutes and State Board of Education Rules.

    Florida has a “one-tier” due process system in which the SEA or another State-level agency or entity (other than the school district) is responsible for convening due process hearings. An appeal from a due process hearing decision goes directly to a federal district or State circuit court.

     

    Impartial hearing officer (i.e., ALJ)

    At a minimum, a hearing officer:

    1. Must not be an employee  of the SEA or the school district that is involved in the education or care of the However, a person is not an

     

    employee of the agency solely because he/she is paid by the agency to serve as a hearing officer;

    1. Must not have a personal or professional interest that conflicts with the hearing officer’s objectivity in the hearing;
    2. Must be knowledgeable and understand the provisions of the IDEA, and federal and State regulations pertaining to the IDEA, and legal interpretations of the IDEA by federal and State courts; and
    3. Must have the knowledge and ability to conduct hearings, and to make and write decisions, consistent with appropriate, standard legal

     

    The Department of Education will keep a list of those persons who serve as ALJs  that must include the qualifications of each of those persons.

     

    Subject matter of due process hearing

    The party (you or the school district) that requests the due process hearing may not raise issues at the due process hearing that were not addressed in the due process hearing request, unless the other party agrees.

     

    Timeline for requesting a hearing

    You or the school district must request an impartial hearing on a due process hearing request within two years of the date you or the school district knew or should have known about the issue addressed in the due process hearing request.

     

    Exceptions to the timeline

    The above timeline  does not  apply to you if you could not file a due process hearing request because:

    1. The school district specifically misrepresented that it had resolved the problem or issue that you are raising in your due process hearing request; or
    2. The school district withheld information from you that it was required to provide to you under Part B of the IDEA.

     

    HEARING RIGHTS  34 CFR §300.512


    General

    Any party to a due process hearing (including a hearing relating to disciplinary procedures) has the right to:

    1. Be represented by counsel or to be represented by a qualified representative under the qualifications and standards set forth in Rules 28-106.106 and 28-106.107, A.C., or to be accompanied and advised by individuals with special knowledge or training with respect to the problems of students with disabilities, or any combination of the above;
    2. Present evidence and confront, cross-examine, and require the attendance of witnesses;

     

    1. Prohibit the introduction of any evidence at the hearing that has not been disclosed to that party at least five business days before the hearing;
    2. Obtain a written, or, at your option, electronic, word-for-word record of the hearing; and
    3. Obtain written,  or,  at  your  option,  electronic findings of fact and

     

    Additional disclosure of information

    At least five business days prior to a due process hearing, you and the school district must disclose to each other all evaluations completed by that date and recommendations based on those evaluations that you or the school district intend to use at the hearing. An ALJ may prevent any party that fails to comply with this requirement from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party.

    Parental rights at hearings

    You must be given the right to:

    1. Have your child present;
    2. Open the hearing to the public; and
    3. Have the record of the hearing, the findings of fact, and the decisions provided to you at no

    HEARING DECISIONS 34 CFR §300.513


    Decision of ALJ

    An ALJ’s decision on whether your child received a FAPE must be based on substantive grounds.

     

    In matters alleging a procedural violation, a hearing officer may find that your child did not receive a FAPE only if the procedural inadequacies:

    1. Interfered with your child’s right to a FAPE;
    2. Significantly interfered with your opportunity to participate in the decision-making process regarding the provision of a FAPE to your child; or
    3. Caused a deprivation of an educational

     

    Construction clause

    None of the provisions described above can be interpreted to prevent an ALJ from ordering a school district to comply with the requirements in the procedural safeguards section of the federal regulations  under  Part  B  of  the  IDEA  (34  CFR

    • §300.500 through 300.536).

     

    Separate request for a due process hearing  Nothing in the procedural safeguards section of the federal regulations under Part B of the IDEA (34 CFR §§300.500 through 300.536) can be interpreted to prevent you from filing a separate due process hearing  request  on  an  issue  separate  from  a  due process hearing request already filed.

     

    Findings and decision to advisory panel and general public

    The SEA or the school district (whichever was responsible for your hearing), after deleting any personally identifiable information, must:

    1. Provide the findings and decisions in the due process hearing or appeal to the State special education advisory panel; and
    2. Make those findings and decisions available to the

     

     

    APPEALS

    FINALITY OF DECISION; APPEAL; IMPARTIAL REVIEW 34 CFR §300.514


    Finality of hearing decision

    A decision made in a due process hearing (including a hearing relating to disciplinary procedures) is final, except that any party involved in the hearing (you or the school district) may appeal the decision by bringing a civil action, as described below.

     

    TIMELINES AND CONVENIENCE OF HEARINGS AND REVIEWS 34 CFR §300.515


    The SEA must ensure that not later than 45 calendar days after the expiration of the 30-calendar-day period for resolution meetings or, as described under the sub-heading Adjustments to the 30-calendar-day resolution period, not later  than 45 calendar  days after the expiration of the adjusted time period:

    1. A final decision is reached in the hearing; and
    2. A copy of the decision is mailed to each of the

     

    An ALJ may grant specific extensions of time beyond the 45-calendar-day time period described above at the request of either party. Each hearing must be conducted at a time and place that is reasonably convenient to you and your child.

     

    CIVIL ACTIONS, INCLUDING THE TIME PERIOD IN WHICH TO FILE THOSE ACTIONS 34 CFR §300.516


    General

    Any party (you or the school district) who does not agree with the findings and decision in the due process hearing (including a hearing relating to disciplinary procedures) has the right to bring a civil action with respect to the matter that was the subject of the due process hearing. The action may be brought in a State court of competent jurisdiction (a State court that has authority to hear this type of case) or in a district court of the United States without regard to the amount in dispute.

     

    Time limitation

    The party (you or the school district) bringing the action shall have 90 calendar days from the date of the decision of an ALJ to file a civil action.

     

    Additional procedures

    In any civil action, the court:

    1. Receives  the   records   of   the   administrative proceedings;
    2. Hears additional evidence at your request or at the school district’s request; and
    3. Bases its decision on the preponderance of the evidence and grants the relief that the court determines to be

     

    Jurisdiction of district courts

    The district courts of the United States have authority to rule on actions brought under Part B of the IDEA without regard to the amount in dispute.

     

    Rule of construction

    Nothing in Part B of the IDEA restricts or limits the rights, procedures, and remedies available under the

    U.S. Constitution, the Americans with  Disabilities Act of 1990, Title V of the Rehabilitation Act of 1973 (Section 504), 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 Part B of the IDEA, the due process procedures described above must be exhausted to the same extent as would be required if the party filed the action under Part B of the IDEA. This means that you may have remedies available under other laws that overlap with those available under the IDEA, but in general, to obtain relief under those other laws, you must first use the available administrative remedies under the IDEA (i.e., the due process hearing request, resolution meeting, and impartial due process hearing procedures) before going directly into court.

    ATTORNEYS FEES  34 CFR §300.517


    General

    In any action or proceeding brought under Part B of the IDEA, if you prevail, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to you.

     

    In any action or proceeding brought under Part B of the IDEA, the court, in its  discretion, may award reasonable attorneys’ fees as part of the costs to a prevailing SEA or school district, to be paid by your attorney, if the attorney: (a) filed a complaint or court case that the court finds is frivolous, unreasonable, or without foundation; or (b) continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation; or

     

    In any action or proceeding brought under Part B of the IDEA, the court, in its  discretion, may award reasonable attorneys’ fees as part of the costs to a prevailing SEA or school district, to be paid by you or your attorney, if your request for a due process hearing or later court case was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to unnecessarily increase the cost of the action or proceeding.

     

    Award of fees

    A court awards reasonable attorneys’ fees as follows:

    1. Fees must be based on rates prevailing in the community in which the action or hearing arose for the kind and quality of services No bonus or multiplier may be used in calculating the fees awarded.
    2. Fees may not be awarded and related costs may not be reimbursed in any action or proceeding under Part B of the IDEA for services performed after a written offer of settlement to you if:
      1. The offer is made within the time prescribed by Rule 68 of the Federal Rules of Civil Procedure or, in the case of a due process hearing, at any time more than 10 calendar days before the proceeding begins;
      2. The offer is not accepted within 10 calendar days; and
      3. The court or ALJ finds that the relief finally obtained by you is not more favorable to you than the offer of

    Despite these restrictions, an award of attorneys’ fees and related costs may be made to you if you prevail and you were substantially justified in rejecting the settlement offer.

    1. Fees may not be awarded relating to any meeting of the IEP team unless the meeting is held as a result of an administrative proceeding or court

     

    NOTE: Fees also may not be awarded for mediation as described under the heading Mediation.

    A resolution meeting, as described under the heading Resolution meeting, is not considered a meeting convened as a result of an administrative hearing or court action, and also is not considered an administrative hearing or court action for purposes of these attorneys’ fees provisions.

     

    The court reduces, as appropriate, the amount of the attorneys’ fees awarded under Part B of the IDEA, if the court finds that:

    1. You, or your attorney, during the course of the action or proceeding, unreasonably delayed the final resolution of the dispute;
    2. The amount of the attorneys’ fees otherwise authorized to be awarded unreasonably exceeds the hourly rate prevailing in the community for

     

    similar   services   by   attorneys   of   reasonably similar skill, reputation, and experience;

    1. The time spent and legal services furnished were excessive considering the nature of the action or proceeding; or
    2. The attorney representing you did not provide to the school district the appropriate information in the due process request notice as described under the heading Due Process Hearings.

     

    However, the court may not reduce fees if the court finds that the State or school district unreasonably delayed the final resolution of the action or proceeding or there was a violation under the procedural safeguards provisions of  Part B of the IDEA.

     

     

    PROCEDURES WHEN DISCIPLINING STUDENTS WITH DISABILITIES

    AUTHORITY OF SCHOOL PERSONNEL 34 CFR §300.530; Rule 6A-6.03312, F.A.C.


    Case-by-case determination

    School personnel may consider any unique circumstances on a case-by-case basis, when determining whether a change of placement, made in accordance with the following requirements related to discipline, is appropriate for a child with a disability who violates a school code of student conduct.

     

    General

    To the extent that they also take such action for children without disabilities, school personnel may, for not more than 10 school days in a row, remove a student with a disability who violates a code of student conduct from his or her current placement to an appropriate interim alternative educational setting (which must be determined by the student’s IEP team), another setting, or suspension. School personnel may also impose additional removals of the student of not more than 10 school days in a row in that same school year for separate incidents of misconduct; as long as those removals do not constitute a change of placement (see Change of Placement Because of Disciplinary Removals for the definition, below).

     

    Additional authority

    If the behavior that violated the student code of conduct was not a manifestation of the student’s disability (see Manifestation determination, below) and the disciplinary change of placement would exceed 10 school days in a row, school personnel may apply the disciplinary procedures to that student with a disability in the same manner and for the same duration as it would to students without disabilities, except that the school must provide services to that student  as  described  below  under  Services.  The

     

    student’s IEP team determines the interim alternative educational setting for such services.

     

    Services

    The services that must be provided to a student with a disability who has been removed from the student’s current placement may be provided in an interim alternative educational setting.

     

    A school district is only required to provide services 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 it provides services to a student without disabilities who has been similarly removed.

     

    A student with a disability who is removed from the student’s current placement for more than 10 school days must:

    1. Continue to receive educational services, so as to enable the student to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the student’s IEP; and
    2. 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 happen

     

    After a student with a disability has been removed from his or her current placement for 10 school days in that same school year, and if the current removal is for 10 school days in a row or less and if the removal is not a change of placement (see definition below), then school personnel, in consultation with the student’s special education teacher(s), determine the extent to which services are needed to enable the student to continue to participate in the general education curriculum, although in another  setting, and to progress toward meeting the goals set out in the student’s IEP.

     

    If the removal is a change of placement (see definition below), the student’s IEP team determines the appropriate services to enable the student to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the student’s IEP.

     

    Manifestation determination

    Within 10 school days of any decision to change the placement of a student with a disability because of a violation of a code of student conduct (except for a removal that is for 10 school days in a row or less and not a change of placement), the school district, the parent, and relevant members of the IEP team (as determined by the parent and the school district) must review all relevant information in the student’s file, including the student’s IEP, any teacher observations,

     

    and any relevant information provided by the parents to determine:

    1. If the conduct in question was caused by, or had a direct and substantial relationship to, the student’s disability; or
    2. If the conduct in question was the direct result of the school district’s failure to implement the student’s

     

    If the school district, the parent, and relevant members of the student’s IEP team determine that either of those conditions was met, the conduct must be determined to be a manifestation of the student’s disability.

     

    If the school district, the parent, and relevant members of the student’s IEP team determine that the conduct in question was the direct result of the school district’s failure to  implement the IEP, the school district must take immediate action to remedy those deficiencies.

     

    Determination that behavior was a manifestation of the student’s disability

    If the school district, the parent, and relevant members of the IEP team determine that the conduct was a manifestation of the student’s disability, the IEP team must either:

    1. Conduct a functional behavioral assessment, unless the school district 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 student; or
    2. If a behavioral intervention plan already has been developed, review the behavioral intervention plan and modify it, as necessary, to address the

     

    Except as described below under the sub-heading Special circumstances, the school district must return the student to the placement from which the student was removed, unless the parent and the district agree to a change of placement as part of the modification of the behavioral intervention plan.

     

    Special circumstances

    Whether or not the behavior was a manifestation of the student’s disability, school personnel may remove a student to an interim alternative educational setting (determined by the student’s IEP team) for up to 45 school days, if the student:

    1. Carries a weapon (see the definition below) to school or has a weapon at school, on school premises, or at a school function under the jurisdiction of the Department of Education or a school district;
    2. Knowingly has or uses illegal drugs (see the definition below), or sells or solicits the sale of a controlled substance (see the definition below), while at  school,  on  school  premises,  or  at  a

     

    school  function  under  the  jurisdiction  of  the Department of Education or a school district; or

    1. Has inflicted serious bodily injury (see the definition below) upon another person while at school, on school premises, or at a school function under the jurisdiction of the Department of Education or a school

     

    Definitions

    Controlled substance means a drug or other substance identified under schedules I, II, III, IV, or V in §202(c) of the Controlled Substances Act, 21

    U.S.C. 812(c) and §893.02(4), Florida Statutes.

     

    Illegal drug means a controlled substance but does not include a 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 the Controlled Substance Act, 21 U.S.C. 812(c) or under any other provision of federal law.

     

    Interim alternative educational setting (IAES) means a different location where educational services are provided for a specific time period due to disciplinary reasons and that meets the requirements of State Board of Education Rule 6A-6.03312.

     

    Serious bodily injury means bodily injury that involves a substantial risk of death; extreme physical pain; protracted and obvious disfigurement; or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

     

    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 that is less than two and one half inches in length.

     

    Notification

    On the date it makes the decision to make a removal that is a change of placement of the student because of a violation of a code of student conduct, the school district must notify the parents of that decision and provide the parents with a procedural safeguards notice.

     

    CHANGE OF PLACEMENT BECAUSE OF DISCIPLINARY REMOVALS 34 CFR §300.536

    A removal of a student with a disability from the student’s current educational placement is a change of placement if:

    1. The removal is for more than 10 school days in a row; or
    2. The student has been subjected to a series of removals that constitute a pattern because:
      1. The series of removals total more than 10 school days in a school year;

     

    1. The student’s behavior is substantially similar to the student’s behavior in previous incidents that resulted in  the series of removals;
    2. Of such additional factors as the length of each removal, the total amount of time the student has been removed, and the proximity of the removals to one another; and

     

    Whether a pattern of removals constitutes a change of placement is determined on a case-by-case basis by the school district and, if challenged, is subject to review through due process and judicial proceedings.

    DETERMINATION OF SETTING 34 CFR § 300.531


    The IEP team must determine the interim alternative educational setting for removals that are changes of placement, and removals under the headings Additional authority and Special circumstances, above.

     

    APPEAL 34 CFR § 300.532


    General

    The parent of a student with a disability may file a due process hearing request if he or she disagrees with:

    1. Any decision regarding placement made under these discipline provisions; or
    2. The manifestation determination described

     

    The school district may file a due process hearing request if it believes that maintaining the current placement of the student is substantially  likely to result in injury to the student or to others.

     

    Authority of an ALJ

    An ALJ hears and makes a determination regarding an appeal and requests for expedited due process hearing regarding discipline and, in making the determination:

    1. An ALJ may return the student with a disability to the placement from which the student was removed if the ALJ determines that the removal was a violation of the  requirements described under the heading Authority of School Personnel, or that the student’s behavior was a manifestation of the student’s disability; or
    2. Order a change of placement of the student with a disability to an appropriate interim alternative educational setting (IAES) for not more than 45 school days if the ALJ determines that maintaining the current placement of the student is substantially likely to result in injury to the student or to

     

    These hearing procedures may be repeated if the school district believes that returning the student to

     

    the original placement is substantially likely to result in injury to the student or to others.

     

    Whenever a parent or a school district files a due process hearing request, a hearing must be held that meets the requirements described under the headings Due Process Hearing Requests, Due Process Hearings, except as follows:

    1. The Department of Education or school district must arrange for 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
    2. Unless the parents and the school district agree in writing to waive the meeting, or agree to use mediation, a resolution meeting must occur within seven calendar days of receiving notice of the due process hearing The hearing may proceed unless the matter has been resolved to the satisfaction of both parties within 15 calendar days of receipt of the due process hearing request.
    3. A State may establish different procedural rules for expedited due process hearings than it has established for other due process hearings, but, except for the timelines, those rules must be consistent with the rules in this document regarding due process

     

    A party may appeal the decision in an expedited due process hearing in the same way as they may for decisions in other due process hearings (see Appeals, above).

    PLACEMENT DURING APPEALS 34 CFR §300.533


    When, as described above, the parent or school district has filed a due process hearing request related to disciplinary matters, the student must (unless the parent and the Department of Education or school district agree otherwise) remain in the interim alternative educational setting pending the decision of the ALJ, or until the expiration of the time period of removal as provided for and described under the heading Authority of School Personnel, whichever occurs first.

    PROTECTIONS FOR STUDENTS NOT YET ELIGIBLE FOR SPECIAL EDUCATION AND RELATED SERVICES   34 CFR §300.534


    General

    If a student has not been determined eligible for special education and related services and violates a code of student conduct, but the school district had knowledge (as determined below) before the behavior that brought about the disciplinary action occurred, that the student was a student with a disability, then the student may assert any of the protections described in this notice.

     

    Basis of knowledge for disciplinary matters

    A school district must be deemed to have knowledge that a student is a student with a disability if, before the behavior that brought about the disciplinary action occurred:

    1. The parent of the student expressed concern in writing that the student is in need of special education and related services to supervisory or administrative personnel of the appropriate educational agency, or a teacher of the student;
    2. The parent requested an evaluation related to eligibility for special education and related services under Part B of the IDEA; or
    3. The student’s teacher or other school district personnel expressed specific concerns about a pattern of behavior demonstrated by the student directly to the school district’s director of special education or to other supervisory personnel of the school

     

    Exception

    A school district would not be deemed to have such knowledge if:

    1. The student’s parent has not allowed an evaluation of the student or refused special education services; or
    2. The student has been evaluated and determined to not be a student with a disability under Part B of the

     

    Conditions that apply if there is no basis of knowledge

    If, prior to taking disciplinary measures against the student, a school district does not have knowledge that a student is a student with a disability, as described above under the sub-headings Basis of knowledge for disciplinary matters and Exception, the student may be subjected to the disciplinary measures that are applied to students without disabilities who engaged in comparable behaviors.

     

    However, if a request is made for an evaluation of a student during the time period in which the student is subjected to disciplinary measures, the evaluation must be conducted in an expedited manner.

     

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

     

    If the student is determined to be a student with a disability, taking into consideration information from the evaluation conducted by the school district, and information provided by the parents, the school district must provide special education and related services in accordance with Part B of the IDEA, including the disciplinary requirements described above.

     

    REFERRAL TO AND ACTION BY LAW ENFORCEMENT AND JUDICIAL AUTHORITIES 34 CFR §300.535


    Part B of the IDEA does not:

    1. Prohibit an agency from reporting a crime committed by a student with a disability to appropriate authorities; or
    2. Prevent 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 student with a

     

    Transmittal of records

    If a school district reports a crime committed by a student with a disability, the school district:

    1. Must ensure that copies of the student’s special education and disciplinary records are transmitted for consideration by the authorities to whom the agency reports the crime; and
    2. May transmit copies of the student’s special education and disciplinary records only to the extent permitted by the Family Educational Rights and Privacy Act (FERPA).

     

     

    REQUIREMENTS FOR UNILATERAL PLACEMENT BY PARENTS OF STUDENTS IN PRIVATE SCHOOLS AT PUBLIC EXPENSE

    GENERAL 34 CFR §300.148


    Part B of the IDEA does not require a school district to pay for the cost of education, including special education and related services, of your child with a disability at a private school or facility if the school district made a FAPE available to your child and you choose to place the student in a private school or facility. However, the school district where the private school is located must include your child in the population whose needs are addressed under the Part B provisions regarding children who have been placed by their parents in a private school under 34 CFR §§300.131 through 300.144.

     

    Reimbursement for private school placement

    If your child previously received special education and related services under the authority of a school district, and you choose to enroll your child in a private preschool, elementary school, or secondary school without the consent of or referral by the school district, a court or an ALJ may require the agency to reimburse you for the cost  of that enrollment if the court or ALJ finds that the agency had not made a FAPE available to your child in a timely manner prior to that enrollment and that the private placement is appropriate. An ALJ or court may find your placement to be appropriate, even if the placement does not meet the State standards that

     

    apply to education provided by the Department of Education and school districts.

     

    Limitation on reimbursement

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

    1. If: (a) at the most recent IEP meeting that you attended prior to your removal of your child from the public school, you did not inform the IEP team that you were rejecting the placement proposed by the school district to provide FAPE to your child, including stating your concerns and your intent to enroll your child in a private school at public expense; or (b) at least 10 business days (including any holidays that occur on a business day) prior to your removal of your child from the public school, you did not give written notice to the school district of that information;
    2. If, prior to your removal of your child from the public school, the school district provided prior written notice to you 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 upon a court’s finding that your actions were

     

    However, the cost of reimbursement:

    1. Must not be reduced or denied for failure to provide the notice if: (a) the school prevented you from providing the notice; (b) you had not received notice of your responsibility to provide the notice described above; or (c) compliance with the requirements above would likely result in physical harm to your child; and
    2. May, in the discretion of the court or an ALJ, not be reduced or denied for the parents’ failure to provide the required notice if: (a) the parent is not literate or cannot write in English; or (b) compliance with the above requirement would likely result in serious emotional harm to  the

     

     

    REQUIREMENTS FOR STUDENTS WITH DISABILITIES ENROLLED BY THEIR PARENTS IN PRIVATE SCHOOLS

    GENERAL INFORMATION 34 CFR §§300.129 – 300.144


    Students with disabilities who have been enrolled in private schools by their parents do not have an individual right to special education and related services while enrolled in the private school. However, the following rights are afforded to parents of students enrolled in nonprofit private schools:

     

    CHILD FIND 34 CFR §300.131


    You have the right to have your child evaluated by the district in which the private school is located to determine if your child may be a student with a disability. The district’s child find and referral obligations toward your parentally-placed private school student are the same as for students enrolled in public school.

    EXPENDITURES 34 CFR §300.133


    The district in which the nonprofit private school is located has a duty to expend on the pool of identified parentally-placed private school students with disabilities an amount that is the same proportion of the district’s federal special education dollars as the number of those students is to the overall total number of students  with disabilities within the district’s jurisdiction.

    CONSULTATION 34 CFR §300.134


    When designing and implementing special education services for parentally-placed private school students, the district has an obligation to consult in a timely and meaningful manner with representatives of those students and with private schools regarding the following issues:

    1. The child find process itself, and whether parentally-placed private school students may participate equitably, as well as how parents of those students and private school representatives are notified of the process;
    2. How the school district determined the proportionate share of federal dollars that will be spent;
    3. The consultation process itself, including how that process will operate throughout the school year so as to ensure meaningful participation in services;
    4. How, where, and by whom special education and related services will be provided, including the types of services and how such services will be apportioned if funds are insufficient to serve all students, and how and when these decisions will be made; and

     

    1. If the district disagrees with views of  private school officials on the provision and types of services, how the local unit will provide a written explanation of the reasons why the district made the decisions that it

    EQUITABLE SERVICES DETERMINED 34 CFR §300.137


    The district in which the nonprofit private school is located shall make the final decision(s) with respect to the services to be provided to eligible parentally- placed private school students with disabilities, following timely and meaningful consultation.

    EQUITABLE SERVICES PROVIDED 34 CFR §300.138


    For any parentally-placed private school student with a disability for whom the district decides that it will provide services, the district shall initiate and conduct a meeting with representatives of the private school to develop, review and revise a services  plan detailing the special education and related services to be provided. To the extent appropriate, the services plan team shall develop the services plan in a manner consistent with the development of an IEP.

    DUE PROCESS HEARINGS 34 CFR §300.140


    The due process hearing requirements apply to allegations that a district has failed to meet its child find duty to locate, identify, and evaluate private school students with disabilities. See page 12 for information regarding dues process hearings.

    STATE COMPLAINTS 34 CFR §300.140

    The state complaint requirements apply to allegations that a district has failed to meets its obligations related to: the opportunity for equitable participation of parentally-placed private school students provided under IDEA; expenditures; the consultation process; provision of equitable services; including Private school officials may file a complaint with the Department of Education, Bureau of Exceptional Education and Student Services, alleging that the district did not engage in consultation that was timely or meaningful or did not give due consideration to the views of the private school officials.

     

     

     

    For more information about procedural safeguards in exceptional student education, please contact:

    ·      The exceptional student education administrator in your district

    ·      The Bureau of Exceptional Education and Student Services at the Florida Department of Education

    850-245-0476

     

    Pam Stewart, Commissioner 309256

    Revised 05/14

Last Modified on May 22, 2019