ࡱ>      \bjbj££ X!R     T```d`q(0L|||$S   ||4+"""p | |"""Vt|Ii NA0q n  H ""q : PROCEDURAL SAFEGUARDS Your Familys Special Education Rights  Mississippi Department of Education Office of Special Education Revised December 17, 2013 Procedural Safeguards Requirements under the Individuals with Disabilities Education Act Amendments of 2004 (IDEA 2004) and State law As a parent, you are an important member of your childs multidisciplinary team. A multidisciplinary team makes decisions about evaluations and eligibility. Another multidisciplinary team, called the Individualized Education Program (IEP) Committee, develops recommendations for special education services for your child. You have the opportunity to participate in the multidisciplinary team meeting discussions and decision-making processes about your childs needs for special education. The following information relates to procedural safeguards explaining your rights under Federal and Mississippi law. One can expect these rights in order to ensure parental involvement in the special education programs. Please adhere to the amended sections 37-23-137 of the Mississippi Code of 1972 as it relates to provision of Procedural Safeguards to a child with a disability. A copy of this Procedural Safeguards Notice must be provided only one time each school year, with the following exceptions: Upon initial referral or your request for an evaluation or reevaluation; Upon the receipt of the first MDE 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 discipline procedures when a change in placement occurs; Upon your childs initial IEP Committee meeting; and Upon your request to receive a copy. The revisions reflect the new mandates of the Individuals with Disabilities Education Act Amendments of 2004. The Federal Regulations were issued on April 14, 2006, and became effective 鶹¼ 13, 2006. Additional amendments were issued on December 1, 2008, and became effective December 31, 2008. Additional information regarding special education and these procedural safeguards is available by contacting your local special education supervisor or school principal, a parent advocacy organization, or the Division of Parent Outreach at the Mississippi Department of Education, Office of Special Education at 1-877-544-0408. This document conforms to the U.S. Department of Educations Model Procedural Safeguards Notice (July 2009) and includes specific Mississippi requirements. This document is available electronically at:  HYPERLINK "http://www.mde.k12.ms.us/special-education/special-education-for-parents"  HYPERLINK "http://www.mde.k12.ms.us/special-education/special-education-for-parents" http://www.mde.k12.ms.us/special-education/special-education-for-parents Questions regarding this document may be referred to: Parent Outreach Division Mississippi Department of Education 359 North West Street P.O. Box 771 鶹¼, MS 39205-0771 601-359-3498 1-877-544-0408 TABLE OF CONTENTS General Information Notification Before Child Find Activities 1 Prior Written Notice 1 Native Language 2 Electronic Mail 2 Parental Consent Definition 2 Parental Consent 2 Independent Educational Evaluations 5 Audio Recording of Individual Education Program Meeting 6 Confidentiality of Information Definitions 6 Personally Identifiable 7 Notice to Parents 7 Access Rights 7 Record of Access 8 Records on More than One Child 8 List of Types and Locations of Information 8 Fees 8 Amendments of Records at Parents Request 8 Opportunity for a Hearing 8 Hearing Procedures 8 Result of a Hearing 9 Consent for Disclosure of Personally Identifiable Information 9 Safeguards 10 Destruction of Information 10 Formal State Complaint Procedures Difference between Due Process Hearing Request and Formal State Complaint Procedures 10 Adoption of Formal State Complaint Procedures 11 Formal State Complaint Procedures 11 Filing a Formal State Complaint 12 Due Process Complaint Procedures Filing a Due Process Complaint 13 Due Process Complaint 13 Model Forms 15 Mediation 15 Resolution Process 16 Hearings on Due Process Complaints Impartial Due Process Hearing 18 Hearing Rights 19 Hearing Decisions 19 Appeals Finality of Decision, Appeal, Impartial Review 20 Timelines and Convenience of Hearings and Review 20 Civil Actions, Including the Time Period in which to File Those Actions 20 The Childs Placement While the Due Process Complaint and Hearing are Pending 21 Attorneys Fees 22 Procedures When Disciplining Children with Disabilities Authority of School Personnel 23 Change of Placement Because of Disciplinary Removals 26 Determination of Setting 26 Appeal 27 Placement During Appeals 28 Protections for Children Not Yet Eligible for Special Education and Related Services 28 Referral to and Action by Law Enforcement and Judicial Authorities 29 Requirements for Unilateral Placement by Parents of Children in Private Schools at Public Expense General 29 Extended School Year30 General Information Notification Before Child Find Activities Before any major activity to identify, locate, or evaluate children in need of special education and related services (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 these activities. Prior Written Notice 300.503 Notice Unless you waive the timeline, written notice must be given to you seven (7) calendar days before the school district: Proposes to initiate or change the identification, evaluation, or educational placement of your child, or the provision of a free appropriate public education (FAPE) to your child; or Refuses to initiate or to change the identification, evaluation, or educational placement of your child, or the provision of FAPE to your child. Content of Notice The written notice must: Describe the action that the school district proposes or refuses to take; Explain why the school district is proposing or refusing to take the action; Describe each evaluation procedure, assessment, record, or report the school district used in deciding to propose or refuse the action; Include a statement that you have rights under the procedural safeguards provisions in Part B of the Individuals with Disabilities Education Act (IDEA); Inform you on how to obtain a description of the procedural safeguards if the action that the school district is proposing or refusing is not an initial referral for evaluation; Include resources for one to contact help in understanding Part B of the IDEA; Describe any other choices that your childs IEP Committee considered and why those choices were rejected; and Provide a description of other reasons as to why the school district proposed or refused the action. Notice in understandable language The notice must be: Written in language understandable to the general public; and Provided in your native language or other mode of communication one uses, unless it is clearly not feasible to do so. If ones native language or other mode of communication is not a written language, ones school district must ensure that: The notice is translated for you orally or by other means in your native language or other mode of communication; One understands the content of the notice; and There is written evidence that 1 and 2 above have been met. Native Language 300.29 Native language, when used with an individual who has limited English proficiency, means the following: The language normally used by that person, or, in the case of a child, the language normally used by the childs parents; in all direct contact with a child (including evaluation of the child), the language normally used by the child in the home or learning environment. 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 300.505 If ones school district offers parents the choice of receiving documents by email, one may choose to receive the following by email: Prior written notice; Procedural safeguards notice; and Notices related to a due process request. Parental Consent Definition 300.9 Consent Consent means: One has been fully informed in ones native language or other mode of communication (such as sign language, Braille, or oral communication) of all information about the action for which one is giving consent; one understands and agrees 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 One understands that the consent is voluntary on their part and consent may be withdrawn at any time. If one wishes to revoke (cancel) consent after their child has begun receiving special education and related services, one must do so in writing. Your withdrawal of consent does not negate (undo) an action that has occurred after you gave your consent but before you withdrew it. In addition, the school district is not required to amend (change) your childs education records to remove any references that your child received special education and related services after your withdrawal of consent. Parental Consent 300.300 Your school district cannot conduct an initial evaluation of your child to determine whether your child is eligible under Part B of IDEA to receive special education and related services without first providing you with written prior notice of the proposed action and without obtaining your consent as described under the headings Prior Written Notice and 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. Your school district may not use your refusal to consent to one service or activity related to the initial evaluation as a basis for denying you or your child any other services, benefit, or activity, unless another IDEA, Part B requirement requires the school district to do so. 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 for your child by utilizing IDEAs mediation or due process complaint, resolution meeting, and impartial due process hearing 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 either parent The school district does not need consent from the parent for an initial evaluation to determine if the child is a child with a disability if: Despite reasonable efforts to do so, the school district cannot find the childs parent; The rights of the parents have been terminated in accordance with State law; or A judge has assigned the right to make educational decisions to an individual other than the parent and that individual has provided consent for an initial evaluation. Ward of the State, defined by IDEA, means a child who, as determined by the State where the child lives, is: A foster child; Considered a ward of the State under State law; or In the custody of a public child welfare agency. Ward of the State does not include a foster child who has a foster parent who meets the definition of a parent as defined in IDEA. Parental consent for services The school district must make reasonable efforts to 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 or later revoke (cancel) your consent in writing, your school district may not use the procedural safeguards (i.e., mediation, resolution meeting, or an impartial due process hearing) in order to obtain agreement or a ruling that the special education and related services (decided by your childs IEP Committee) 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 or later revoke (cancel) your consent in writing 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: Is not in violation of the requirement to make FAPE available to your child for its failure to provide those services to your child; and Is not required to have an IEP meeting or develop an IEP for your child for the special education and related services for which your consent was requested. If you revoke (cancel) your consent in writing at any point after your child is first provided special education and related services, then the school district may not continue to provide such services, but must first provide you with prior written notice, as described under the heading Prior Written Notice, before discontinuing those services. Parental consent for reevaluations Your school district must obtain your informed consent before it reevaluates your child, unless your school district can demonstrate that: It took reasonable steps to obtain your consent for your childs reevaluation; and You did not respond. If you refuse to consent to your childs reevaluation, the school district may, but is not required to, pursue your childs reevaluation by using the mediation, resolution meeting, and impartial due process hearing procedures to seek to override your refusal to consent to your childs reevaluation. 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, for a reevaluation, and to locate parents of wards of the State for initial evaluations. The documentation must include a record of the school districts attempts in these areas, such as: Detailed records of telephone calls made or attempted and the results of those calls; Copies of correspondence sent to the parents and any responses received; and Detailed records of visits made to the parents home or place of employment and the results of those visits. Other consent requirements Your consent is not required before your school district may: Review existing data as part of your childs evaluation or a reevaluation; or Give your child a test or other evaluation that is given to all children unless, before that test or evaluation, consent is required from all parents of all children. 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, unless another IDEA, Part B requirement requires the school district to do so. If you have enrolled your child in a private school at your own expense or if you are home schooling your child, and you do not provide your consent for your childs initial evaluation or your childs reevaluation, or you fail to respond to a request to provide your consent, the school district may not use its dispute resolution procedures (i.e., mediation, resolution meeting, or an impartial due process hearing) and is not required to consider your child as eligible to receive equitable services (services made available to parentally-placed private school children with disabilities). Independent Educational Evaluations 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 districts criteria that apply to IEEs. Definitions Independent educational evaluation 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, consistent with the provisions of Part B of the IDEA, which allow each State to use whatever State, local, Federal and private sources of support that are available in the State to meet the requirements of Part B of the IDEA. Parents 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: If you request an IEE of your child at public expense, your school district must, without unnecessary delay, either: (a) File a request for a due process hearing to show that its evaluation of your child is appropriate; or (b) Provide an IEE at public expense, unless the school district demonstrates in a hearing that the evaluation of your child that you obtained did not meet the school districts criteria. If your school district requests a hearing and the final decision is that your school districts evaluation of your child is appropriate, you still have the right to an IEE, but not at public expense. 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 district. 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 request for a due process hearing to defend the school districts 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: Your school district must consider the results of the evaluation of your child, if it meets the school districts criteria for IEEs, in any decision made with respect to the provision of FAPE to your child; and You or your school district may present the evaluation as evidence at a due process hearing regarding your child. Requests for evaluations by hearing officers If a hearing officer requests an IEE for 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 IEE). Except for the criteria described above, a school district may not impose conditions or timelines related to obtaining an IEE at public expense. Audio Recording of Individual Education Program Meeting MS Code Section 37-23-137 The parent or guardian, or the local educational agency (LEA), has the right to participate in the development of the IEP and to initiate their intent to audio record the proceedings of the individualized education program (IEP) meetings. The parent or guardian or local educational agency shall notify the members of the IEP team of their intent to record a meeting at least twenty-four (24) hours prior to the meeting. Confidentiality of Information Definitions 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 of 1974, 20 U.S.C. 1232g [FERPA]). 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 300.32 Personally identifiable means information that includes: Your childs name, your name as the parent, or the name of another family member; Your childs address; A personal identifier, such as your childs 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 certainty. Notice to Parents 300.612 The Mississippi Department of Education (MDE) will give notice that is adequate to fully inform parents about confidentiality of personally identifiable information, including: A description of the extent to which the notice is given in the native languages of the various population groups in Mississippi; A description of the children on whom personally identifiable information is maintained, the types of information sought, the methods the MDE intends to use in gathering the information (including the sources from whom information is gathered), and the uses to be made of the information; 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 A description of all the rights of parents and children regarding this information, including the rights under the Family Educational Rights and Privacy Act (FERPA) and its implementing regulations in 34 CFR Part 99. Access Rights 300.613 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 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 IEP, or any impartial due process hearing (including a resolution meeting or a hearing regarding discipline), and in no case more than forty-five (45) calendar days after you have made the request. Your right to inspect and review education records includes: Your right to a response from the participating agency to your reasonable requests for explanations and interpretations of the records; 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 Your right to have your representative inspect and review the records. 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 Mississippi law governing such matters as guardianship, separation and divorce. Record of Access 300.614 Each participating agency must keep a record of parties obtaining access to education records collected, maintained or used under Part B of 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 300.615 If any education record includes information on more than one child, the parents of those children have the right to inspect and review only the information relating to their child or to be informed of that specific information. List of Types and Locations of Information 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 300.617 Each participating agency may charge a fee for copies of records that are made for you under Part B of 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 IDEA. Amendment of Records at Parents Request 300.618 If you believe that information in the education records regarding your child collected, maintained, or used under Part B of 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 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 300.621 A hearing to challenge information in education records must be conducted according to the procedures for such hearings under Family Educational Rights and Privacy Act (FERPA). Result of a Hearing 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 child, 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: 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 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 party.  Consent for Disclosure of Personally Identifiable Information 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 IDEA. Your consent, or consent of an eligible child who has reached the age of majority (twenty-one) under Mississippi 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 in which you reside, 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. Safeguards 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 MDEs policies and procedures regarding confidentiality under Part B of IDEA and 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 300.624 Your school district must inform you when personally identifiable information collected, maintained or used under Part B of IDEA 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 childs 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.  FORMAL STATE COMPLAINT PROCEDURES Difference Between Due Process Hearing Request and Formal State Complaint Procedures The regulations for Part B of IDEA set forth separate procedures for formal State complaints and for due process complaints and hearings. As explained below, any individual or organization may file a formal State complaint alleging a violation of any Part B requirement by a school district, the MDE or any other public agency. Only you or a school district may file a request for a due process hearing on any matter relating to a proposal or a refusal to initiate or change the identification, evaluation or educational placement of a child with a disability, or the provision of FAPE to the child. While staff of the MDE generally must resolve a formal State complaint within a sixty (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 forty-five (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 districts request. The formal State complaint and due process complaint, resolution and hearing procedures are described more fully on the next three pages. The MDE has available model forms to help you file a due process complaint and to help you or other parties to file a formal State complaint. Adoption of Formal State Complaint Procedures 300.151 General The MDE has written procedures for: Resolving any formal State complaint, including a formal State complaint filed by an organization or individual from another State; The filing of a formal State complaint with the MDE; Widely disseminating the formal 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 entities. Remedies for denial of appropriate services In resolving a formal State complaint in which the MDE has found a failure to provide appropriate services, the MDE will address: The failure to provide appropriate services, including corrective action appropriate to address the needs of the child (such as compensatory services or monetary reimbursement); and Appropriate future provision of services for all children with disabilities.  Formal State Complaint Procedures 300.152 Time limit, procedures MDE includes in its formal State complaint procedures a time limit of sixty (60) calendar days after a formal State complaint is filed to: Carry out an independent on-site investigation, if MDE determines that an investigation is necessary; Give the complainant the opportunity to submit additional information, either orally or in writing, about the allegations in the formal State complaint; Provide the school district or other public agency with the opportunity to respond to the formal State complaint, including, at a minimum: (a) at the option of the agency, a proposal to resolve the formal State complaint; and (b) an opportunity for a parent who has filed a formal State complaint and the agency to agree voluntarily to engage in mediation; 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 IDEA; and Issue a written decision to the complainant that addresses each allegation in the formal State complaint and contains: (a) findings of fact and conclusions; and (b) the reasons for MDEs final decision. Time extension, final decision, and implementation The MDEs procedures described above also: Permit an extension of the sixty (60) calendar-day time limit only if: (a) exceptional circumstances exist with respect to a particular formal 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; Include procedures for effective implementation of the MDEs final decision, if needed, including: (a) technical assistance activities; (b) negotiations; and (c) corrective actions to achieve compliance. Formal State complaints and due process hearings If a formal State complaint is received that is also the subject of a due process hearing as described below under the heading Filing a Due Process Complaint, or the formal State complaint contains multiple issues of which one or more are part of such a hearing, MDE will set aside any part of the formal State complaint that is being addressed in the due process hearing until the hearing is over. Any issue in the formal State complaint that is not a part of the due process hearing will be resolved using the time limit and procedures described above. If an issue raised in a formal State complaint has previously been decided in a due process hearing involving the same parties (for example, you and the school district), then the due process hearing decision is binding on that issue and the MDE will inform the complainant that the decision is binding. A formal State complaint alleging a school districts or other public agencys failure to implement a due process hearing decision will be resolved by the MDE. Filing a Formal State Complaint 300.153 An organization or individual may file a formal State complaint under the procedures described above. The formal State complaint must include: A statement that a school district or other public agency has violated a requirement of Part B of IDEA or its implementing regulations in 34 CFR Part 300; The facts on which the statement is based; The signature and contact information for the party filing the complaint; and If alleging violations regarding a specific child: The name of the child and address of the residence of the child; The name of the school the child is attending; In the case of a homeless child or youth, available contact information for the child, and the name of the school the child is attending; A description of the nature of the problem of the child, including facts relating to the problem; and A proposed resolution of the problem to the extent known and available to the party filing the formal State complaint at the time the formal State complaint is filed. The formal State complaint must allege a violation that occurred not more than one (1) year prior to the date that the formal State complaint is received as described under the heading Adoption of Formal State Complaint Procedures. The party filing the formal State complaint must forward a copy of the formal State complaint to the school district or other public agency serving the child at the same time the party files the formal State complaint with the MDE. Additionally, the school district or other public agency must forward a copy of any and all responses they send to the MDE regarding said formal complaint. DUE PROCESS COMPLAINT PROCEDURES Filing a Due Process Complaint 300.507 General You or the 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 your child, or the provision of FAPE to your child. The due process complaint must allege a violation that happened not more than two (2) 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 if you could not file a due process complaint within the timeline because: The school district specifically misrepresented that it had resolved the issues identified in the complaint; or The school district withheld information from you that it was required to provide under Part B of IDEA. Information for parents 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 complaint. Due Process Complaint 300.508 General In order to request a hearing, you or the school district (or your attorney or the school districts attorney) must submit a due process complaint to the other party. That complaint must contain all of the content listed below and must be kept confidential. You or the school district, whichever one filed the complaint, must also provide the MDE with a copy of the complaint. Content of the complaint The due process complaint must include: The name of the child; The address of the childs residence; The name of the childs school; If the child is a homeless child or youth, the childs contact information and the name of the childs school; A description of the nature of the problem of the child relating to the proposed or refused action, including facts relating to the problem; and A proposed resolution of the problem to the extent known and available to the complaining party (you or the school district) at the time. Notice required before a hearing on a due process complaint You or the school district may not have a due process hearing until you or the school district (or your attorney or the school districts attorney), file a due process complaint that includes the information listed above. Sufficiency of complaint In order for a due process complaint to go forward, it must be considered sufficient. The due process complaint will be considered sufficient (to have met the content requirements above) unless the party receiving the due process complaint (you or the school district) notifies the hearing officer and the other party in writing, within fifteen (15) calendar days of receiving the complaint, that the receiving party believes the due process complaint does not meet the requirements listed above. Within five (5) calendar days of receiving notification that the receiving party (you or the school district) considers a due process complaint insufficient, the hearing officer must decide if the due process complaint meets the requirements listed above, and notify you and the school district in writing immediately. Complaint amendment You or the school district may make changes to the complaint only if: The other party approves of the changes in writing and is given the chance to resolve the due process complaint through a resolution meeting described below; or By no later than five (5) days before the due process hearing begins, the hearing officer grants permission for the changes. If the complaining party (you or the school district) makes changes to the due process complaint, the timelines for the resolution meeting (within fifteen [15] calendar days of receiving the complaint) and the time period for resolution (within thirty [30] calendar days of receiving the complaint) start again on the date the amended complaint is filed. Local educational agency (LEA) or school district response to a due process complaint 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 complaint, the school district must, within ten (10) calendar days of receiving the due process complaint, send to you a response that includes: An explanation of why the school district proposed or refused to take the action raised in the due process complaint; A description of other options that your childs IEP Committee considered and the reasons why those options were rejected; A description of each evaluation procedure, assessment, record, or report the school district used as the basis for the proposed or refused action; and A description of the other factors that are relevant to the school districts proposed or refused action. Providing the information in items 1-4 above does not prevent the school district from asserting that your due process complaint was insufficient. Other party response to a due process complaint Except as stated under the sub-heading immediately above, LEA or school district response to a due process complaint, the party receiving a due process complaint must, within ten (10) calendar days of receiving the complaint, send the other party a response that specifically addresses the issues in the complaint. Model Forms 300.509 The MDE has developed model forms to help you file a due process complaint and to help you and other parties file a formal State complaint. However, the MDE or school district does not require you to use these model forms. In fact, you can use this form or another appropriate form, so long as it contains the required information for filing a due process complaint or a formal State complaint. Mediation 300.506 General The school district must make mediation available to allow you and the school district to resolve disagreements involving any matter under Part B of IDEA, including matters arising prior to the filing of a due process complaint. Thus, mediation is available to resolve disputes under Part B of 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 Complaint. Requirements The procedures must ensure that the mediation process: Is voluntary on your part and the school districts part; 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 IDEA; and Is conducted by a qualified and impartial mediator who is trained in effective mediation techniques. 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: Who is under contract with an appropriate alternative dispute resolution entity, or a parent training and information center or community parent resource center in Mississippi; and Who would explain the benefits of, and encourage the use of, the mediation process to you. MDE has a list of people who are qualified mediators and know the laws and regulations relating to the provision of special education and related services. MDE selects mediators on a rotational and impartial basis. MDE 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. 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: 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 (court case); and Is signed by both you and a representative of the school district who has the authority to bind the school district. 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 kept 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: May not be an employee of MDE or the school district that is involved in the education or care of your child; and Must not have a personal or professional interest which conflicts with the mediators objectivity. A person who otherwise qualifies as a mediator is not an employee of a school district or MDE solely because they are paid by MDE or school district to serve as a mediator. Resolution Process 300.510 Resolution meeting Within fifteen (15) calendar days of receiving notice of your due process complaint, 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 Committee who have specific knowledge of the facts identified in your due process complaint. The meeting: Must include a representative of the school district who has decision-making authority on behalf of the school district; and May not include an attorney of the school district unless you are accompanied by an attorney. You and the school district determine the relevant members of the IEP Committee to attend the meeting. The purpose of the meeting is for you to discuss your due process complaint, and the facts that form the basis of the complaint, so that the school district has the opportunity to resolve the dispute. The resolution meeting is not necessary if: You and the school district agree in writing to waive the meeting; or 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 complaint to your satisfaction within thirty (30) calendar days of the receipt of the due process complaint (during the time period for the resolution process), the due process hearing may occur. The forty-five (45) calendar-day timeline for issuing a final decision begins at the expiration of the thirty (30) calendar-day resolution period with certain exceptions for adjustments made to the thirty (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 the meeting is held. 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 thirty (30) calendar-day resolution period, request that a hearing officer dismiss your due process complaint. Documentation of such efforts must include a record of the school districts attempts to arrange a mutually agreed upon time and place, such as: Detailed records of telephone calls made or attempted and the results of those calls; Copies of correspondence sent to you and any responses received; and Detailed records of visits made to your home or place of employment and the results of those visits. If the school district fails to hold the resolution meeting within fifteen (15) calendar days of receiving notice of your due process complaint or fails to participate in the resolution meeting, you may ask the hearing officer to begin the forty-five (45) calendar-day due process hearing timeline. Adjustments to the thirty (30) calendar-day resolution period If you and the school district agree in writing to waive the resolution meeting, then the forty-five (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 thirty (30) calendar day resolution period, if you and the school district agree in writing that no agreement is possible, then the forty-five (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 but have not yet reached agreement, at the end of the thirty (30) calendar day resolution period the mediation process may be continued until an agreement is reached if both parties agree to the continuation in writing. However, if either you or the school district withdraws from the mediation process during this continuation period, then the forty-five (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: Signed by you and a representative of the school district who has the authority to bind the school district; and Enforceable in any State court of competent jurisdiction (a State court that has the authority to hear this type of case) or in a district court of the United States. 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 (3) business days of the time that both you and the school district signed the agreement. HEARINGS ON DUE PROCESS COMPLAINTS Impartial Due Process Hearing 300.511 MS Code 37-23-143 General Whenever a due process complaint 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 Complaint and Resolution Process sections. Mississippi is a One-Tier state, which means that the MDE is responsible for convening due process hearings and any appeal from a due process hearing decision is filed directly with a court of competent jurisdiction. Impartial hearing officer At a minimum, a hearing officer: Must not be an employee of MDE or the school district that is involved in the education or care of the child. However, a person is not an employee of the agency solely because they are paid by the agency to serve as a hearing officer; Must not have a personal or professional interest that conflicts with the hearing officers objectivity in the hearing; Must be knowledgeable and understand the provisions of IDEA, and Federal and State Regulations pertaining to IDEA, and legal interpretations of IDEA by Federal and State Courts; and Must have the knowledge and ability to conduct hearings, and to make and write decisions, consistent with appropriate, standard legal practice. The MDE maintains a list of those persons who serve as hearing officers that includes a statement of the qualifications of each hearing officer. 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 complaint, unless the other party agrees. Timeline for requesting a hearing You or the school district must request an impartial hearing on a due process complaint within two (2) years of the date you or the school district knew or should have known about the issue addressed in the complaint. Exceptions to the timeline The above timeline does not apply to you if you could not file a due process complaint because: The school district specifically misrepresented that it had resolved the problem or issue that you are raising in your complaint; or The school district withheld information from you that it was required to provide to you under Part B of the IDEA. Hearing Rights 300.512 General You have the right to represent yourself at a due process hearing. In addition, any party to a due process hearing (including a hearing relating to disciplinary procedures) has the right to: Be accompanied and advised by counsel and by persons with special knowledge or training regarding the problems of children with disabilities; Be represented at the due process hearing by an attorney; Present evidence and confront, cross-examine, and require the attendance of witnesses; Prohibit the introduction of any evidence at the hearing that has not been disclosed to that party at least five (5) business days before the hearing; Obtain a written, or, at your option, electronic, word-for-word record of the hearing; and Obtain written, or, at your option, electronic findings of fact and decisions. Additional disclosure of information At least five (5) 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. A hearing officer 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: Have your child present at the hearing; Open the hearing to the public; and Have the record of the hearing, the findings of facts and decisions provided to you at no cost. Hearing Decisions 300.513 Decision of hearing officer A hearing officers decision on whether your child received FAPE must be based on evidence and arguments that directly relate to FAPE. In matters alleging a procedural violation (such as an incomplete IEP Committee), a hearing officer may find that your child did not receive FAPE only if the procedural violations: Interfered with your childs right to FAPE; Significantly interfered with your opportunity to participate in the decision-making process regarding the provision of FAPE to your child; or Caused your child to be deprived of an educational benefit. None of the provisions described above can be interpreted to prevent a hearing officer from ordering a school district to comply with the requirements in the procedural safeguards section of the Federal Regulations under Part B of 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 IDEA (34 CFR 300.500 through 300.536) can be interpreted to prevent you from filing a separate due process complaint on an issue separate from a due process complaint already filed. Findings and decision to advisory panel and general public MDE, after deleting any personally identifiable information, must: Provide the findings and decisions in the due process hearing to the State special education advisory panel; and Make those findings and decisions available to the public. APPEALS Finality of Decision, Appeal, Impartial Review 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 under the heading Civil Actions, Including the Time Period in Which to File Those Actions. Timelines and Convenience of Hearings and Review 300.515 The MDE must ensure that, not later than forty-five (45) calendar days after the expiration date of the thirty (30) calendar-day period for resolution meetings or, as described under the sub-heading Adjustments to the thirty (30) calendar-day resolution period, not later than forty-five (45) calendar days after the expiration of the adjusted time period: A final decision is reached in the hearing; and A copy of the decision is mailed to each of the parties. A hearing officer may grant specific extensions of time beyond the forty-five (45) calendar-day time period described above at the request of either party (you or the school district). 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 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 ninety (90) calendar days from the date of the decision of the hearing officer to file a civil action. Additional procedures In any civil action, the court: Receives the records of the administrative proceedings; Hears additional evidence at your request or at the school districts request; and Bases its decision on the preponderance of the evidence and grants the relief that the court determines to be appropriate. Under appropriate circumstances, judicial relief may include reimbursement of private school tuition and compensatory education services. Jurisdiction of district courts The district courts of the United States have authority to rule on actions brought under Part B of IDEA without regard to the amount in dispute. Interpretation Nothing in Part B of 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 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 IDEA. This means that you may have remedies available under the other laws that overlap with those available under IDEA, but in general, to obtain relief under those other laws, you must first use the available administrative remedies under IDEA (i.e., the due process complaint, resolution process, including the resolution meeting, and impartial due process hearing procedures) before going directly into court. The Childs Placement While the Due Process Complaint and Hearing Are Pending 300.518 Except as provided below under the heading Procedures When Disciplining Children with Disabilities, once a due process complaint 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 MDE or school district agree otherwise, your child must remain in his or her current educational placement. If the due process complaint 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 complaint involves an application for initial services under Part B of IDEA for a child who is transitioning from being served under Part C of IDEA to Part B of 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 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 upon which you and the school district both agree). If a hearing officer in a due process hearing conducted by the MDE agrees with you that a change of placement is appropriate, that placement must be treated as your childs current educational placement where your child will remain while waiting for the decision of any impartial due process hearing or court proceeding. Attorneys Fees 300.517 General In any action or proceeding brought under Part B of IDEA, the court, in its discretion, may award reasonable attorneys fees as part of the costs to you, if you prevail (win). In any action or proceeding brought under Part B of IDEA, the court, in its discretion, may award reasonable attorneys fees as part of the costs to a prevailing MDE 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 the prevailing MDE 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 (hearing). Award of fees A court awards reasonable attorneys fees as follows: Fees must be based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished. No bonus or multiplier may be used in calculating the fees awarded. Attorneys fees may not be awarded and related costs may not be reimbursed in any action or proceeding under Part B of IDEA for services performed after a written offer of settlement is made to you if: 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 or State-level review, at any time more than ten (10) calendar days before the proceeding begins; The offer is not accepted within ten (10) calendar days; and The court or administrative hearing officer finds that the relief finally obtained by you is not more favorable to you than the offer of settlement. 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. Fees may not be awarded relating to any meeting of the IEP Committee unless the meeting is held as a result of an administrative proceeding or court action. Fees also may not be awarded for mediation as described under the heading Mediation. A resolution meeting, as described under the heading Resolution Process, 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 IDEA, if the court finds that: You, or your attorney, during the course of the action or proceeding, unreasonably delayed the final resolution of the dispute; 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; The time spent and legal services furnished were excessive considering the nature of the action or proceeding; or 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 Complaint. 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 IDEA. PROCEDURES WHEN DISCIPLINING CHILDREN WITH DISABILITIES Authority of School Personnel 300.530 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 ten (10) school days in a row, remove a child with a disability who violates a code of student conduct from his or her current placement to an appropriate interim alternative educational setting (which must be determined by the childs IEP Committee), another setting, or suspension. School personnel may also impose additional removals of the child of not more than ten (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 in placement (see Change of Placement Because of Disciplinary Removals for the definition, page 31). Once a child with a disability has been removed from his or her current placement for a total of ten (10) school days in the same school year, the school district must, during any subsequent days of removal in that school year, provide services to the extent required below under the sub-heading Services. Additional authority. If the behavior that violated the student code of conduct was not a manifestation of the childs disability (see Manifestation determination) and the disciplinary change of placement would exceed ten (10) school days in a row, school personnel may apply the disciplinary procedures to that child with a disability in the same manner and for the same duration as it would to children without disabilities, except that the school must provide services to that child as described below under Services. The childs IEP Committee determines the interim alternative educational setting for such services. Services The services that must be provided to a child with a disability who has been removed from the childs current placement [300.530(d)(2)] may be provided in an interim alternative educational setting. Dependent upon local school board policy, a school district may only be required to provide services to a child with a disability who has been removed from his or her current placement for ten (10) school days or less in that school year, if it provides services to a child without disabilities who has been similarly removed. A child with a disability who is removed from the childs current placement for more than ten (10) school days and the behavior is not a manifestation of the childs disability (see subheading, Manifestation determination) or who is removed under special circumstances (see subheading, Special circumstances) must: Continue to receive educational services, so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the childs IEP; and Receive, as appropriate, a functional behavioral assessment, and behavioral intervention services and modifications, which are designed to address the behavior violation so that it does not happen again. After a child with a disability has been removed from his or her current placement for ten (10) school days in that same school year, and if the current removal is for ten (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 at least one of the childs teachers, determine the extent to which services are needed to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the childs IEP. If the removal is a change of placement (see the heading, Change of Placement Because of Disciplinary Removals), the childs IEP Committee determines the appropriate services to enable the child to continue to participate in the general education curriculum, although in another setting (that may be an interim alternative educational setting), and to progress toward meeting the goals set out in the childs IEP. Manifestation determination Within ten (10) school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct (except for a removal that is for ten (10) school days in a row or less and not a change of placement), the school district, you, and other relevant members of the IEP Committee (as determined by you and the school district) must review all relevant information in the students file, including the childs IEP, any teacher observations, and any relevant information provided by you to determine: If the conduct in question was caused by, or had a direct and substantial relationship to, the childs disability; or If the conduct in question was the direct result of the school districts failure to implement the childs IEP. If the school district, you, and other relevant members of the childs IEP Committee determine that either of those conditions was met, the conduct must be determined to be a manifestation of the childs disability. If the school district, you, and other relevant members of the childs IEP Committee determine that the conduct in question was the direct result of the school districts failure to implement the IEP, the school district must take immediate action to remedy those deficiencies. Determination that behavior was a manifestation of the childs disability If the school district, you, and other relevant members of the IEP committee determine that the conduct was a manifestation of the childs disability, the IEP committee must either: 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 child; or If a behavioral intervention plan already has been developed, review the behavioral intervention plan, and modify it, as necessary, to address the behavior. Except as described below under the sub-heading Special circumstances, the school district must return the child to the placement from which the child was removed, unless you 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 childs disability, school personnel may remove a student to an interim alternative educational setting (determined by the childs IEP Committee) for not more than forty-five (45) school days, if the child: 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 MDE or a school district; 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 MDE or a school district; or 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 MDE or a school district. Definitions Controlled substance means a drug or other substance identified under schedules I, II, III, IV, or V in section 202(c) of the Controlled Substances Act (21 U.S.C. 812(c)). Illegal drug means a controlled substance, but does not include a controlled substance that is legally possessed or used under the supervision of a licensed health-care professional or that is legally possessed or used under any other authority under that Act or under any provision of Federal law. Serious bodily injury has the meaning given the term serious bodily injury under paragraph (3) of subsection (h) of section 1365 of title 18, United States Code. Weapon has the meaning given the term dangerous weapon under paragraph (2) of the first subsection (g) of section 930 of title 18, United States Code. Notification On the date it makes the decision to make a removal that is a change of placement because of a violation of a code of student conduct, the school district must notify you of that decision, and provide you with a Procedural Safeguards Notice. Change of Placement Because of Disciplinary Removals 300.536 A removal of a child with a disability from the childs current educational placement is a change of placement if: The removal is for more than ten (10) school days in a row; or Your child has been subjected to a series of removals that constitute a pattern because: The series of removals total more than ten (10) school days in a school year; Your childs behavior is substantially similar to the childs behavior in previous incidents that resulted in the series of removals; and Of such additional factors as the length of each removal, the total amount of time your child has been removed, and the proximity of the removals to one another. 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 300.531 The IEP committee determines the interim alternative educational setting for removals that are changes of placement, and removals under the headings Additional authority and Special circumstances. Appeal 300.532 General You may file a due process complaint (see the heading Due Process Complaint Procedures) to request a due process hearing if you disagree with: Any decision regarding placement made under these discipline procedures; or The manifestation determination described above. The school district may file a due process complaint (see above) to request a due process hearing if it believes that maintaining the current placement of your child is substantially likely to result in injury to your child or to others. Authority of hearing officer A hearing officer that meets the requirements described under the sub-heading Impartial Hearing Officer must conduct the due process hearing and make a decision. The hearing officer may: Return your child with a disability to the placement from which your child was removed if the hearing officer determines that the removal was a violation of the requirements described under the heading Authority of School Personnel, or that your childs behavior was a manifestation of your childs disability; or Order a change of placement of your child with a disability to an appropriate interim alternative educational setting for not more than forty-five (45) school days if the hearing officer determines that maintaining the current placement of your child is substantially likely to result in injury to your child or to others. These hearing procedures may be repeated, if the school district believes that returning your child to the original placement is substantially likely to result in injury to your child or to others. Whenever you or a school district files a due process complaint to request such a hearing, a hearing must be held that meets the requirements described under the headings Due Process Complaint Procedures and Hearings on Due Process Complaints, except as follows: The MDE or school district must arrange for an expedited due process hearing, which must occur within twenty (20) school days of the date the hearing is requested and must result in a determination within ten (10) school days after the hearing. 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 (7) calendar days of receiving notice of the due process complaint. The hearing may proceed unless the matter has been resolved to the satisfaction of both parties within fifteen (15) calendar days of receipt of the due process complaint. 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 the heading Appeal). Placement During Appeals 300.533 When, as described above, you or the school district files a due process complaint related to disciplinary matters, your child must (unless you and the MDE or school district agree otherwise) remain in the interim alternative educational setting pending the decision of the hearing officer, 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 Children Not Yet Eligible for Special Education and Related Services 300.534 General If your child 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 your child was a child with a disability, then your child 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 your child is a child with a disability if, before the behavior that brought about the disciplinary action occurred: You expressed concern in writing to supervisory or administrative personnel of the appropriate educational agency, or to your childs teacher that your child is in need of special education and related services; You requested an evaluation related to eligibility for special education and related services under Part B of IDEA; or Your childs teacher or other school district personnel expressed specific concerns about a pattern of behavior demonstrated by your child directly to the school districts director of special education or to other supervisory personnel of the school district. Exception A school district would not be deemed to have such knowledge if: You have not allowed an evaluation of your child or have refused special education services; or Your child has been evaluated and determined to not be a child with a disability under Part B of IDEA. Conditions that apply if there is no basis of knowledge If prior to taking disciplinary measures against your child, a school district does not have knowledge that your child is a child with a disability, as described above under the subheadings Basis of knowledge for disciplinary matters and Exception, your child may be subjected to the disciplinary measures that are applied to children without disabilities who engage in comparable behaviors. However, if a request is made for an evaluation of your child during the time period in which your child is subjected to disciplinary measures, the evaluation must be conducted in an expedited manner. Until the evaluation is completed, your child remains in the educational placement determined by school authorities, which can include suspension or expulsion without educational services. If your child is determined to be a child with a disability, taking into consideration information from the evaluation conducted by the school district, and information provided by you, the school district must provide special education and related services in accordance with Part B of IDEA, including the disciplinary requirements described above. Referral to and Action by Law Enforcement and Judicial Authorities 300.535 Part B of IDEA does not: Prohibit an agency from reporting a crime committed by a child with a disability to appropriate authorities; or 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 child with a disability. Transmittal of records If a school district reports a crime committed by a child with a disability, the school district: Must ensure that copies of the childs special education and disciplinary records are transmitted for consideration by the authorities to whom the agency reports the crime; and May transmit copies of the childs special education and disciplinary records only to the extent permitted by FERPA. REQUIREMENTS FOR UNILATERAL PLACEMENT BY PARENTS OF CHILDREN IN PRIVATE SCHOOLS AT PUBLIC EXPENSE General 300.148 Part B of 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 FAPE available to your child and you choose to place the child 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 a hearing officer may require the agency to reimburse you for the cost of that enrollment if the court or hearing officer finds that the agency had not made FAPE available to your child in a timely manner prior to that enrollment and that the private placement is appropriate. A hearing officer 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 MDE and school districts. Limitation on reimbursement The cost of reimbursement described in the paragraph above may be reduced or denied: If: (a) At the most recent IEP Committee meeting that you attended prior to your removal of your child from the public school, you did not inform the IEP Committee 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 ten (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; 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 courts finding that your actions were unreasonable. However, the cost of reimbursement: 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 May, in the discretion of the court or a hearing officer, not be reduced or denied for the parents failure to provide the required notice if: (a) You are not literate or cannot write in English; or (b) Compliance with the above requirement would likely result in serious emotional harm to your child. Extended School Year (ESY) General 300.106 Extended school year (ESY) is the provision of special education and related services to students with disabilities in accordance with their individualized education program (IEP) beyond the normal school year of the local district and at no cost to the parents of the students. Each public agency must ensure that extended school year services are available as necessary to provide FAPE, consistent with paragraph (a)(2) below and in State Board of Education Policy 7212. ESY services must be provided only if a childs IEP Committee determines, on an individual basis, in accordance with 300.320 through 300.324, that the services are necessary for the provision of FAPE to the child. Students with disabilities who turn age twenty-one (21) during the school year and who are eligible for ESY services may be served in an ESY program as determined by the IEP Committee. In implementing the ESY requirements, a public agency may not limit ESY services to particular categories of disability or unilaterally limit the type, amount, or duration of those services. Definition The term ESY services means special education and related serves that are provided to a child with a disability beyond the normal school year (180 days) of the public agency in accordance with the childs IEP, at no cost to the parents of the child and meet the standards of the State Board of Education.      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