Summary of Procedural Safeguardsfor Parents of Students with Disabilities

As a parent, you are entitled to informationabout your rights under the Individuals withDisabilities Education Act (IDEA). The follow-

This pamphlet helps parents of children in Florida'sschool districts understand the rights that go along withprograms for students with disabilities. It summarizesfederal and state laws on how your rights must be pro-tected relating to notice, consent, independent educa-

ing information is critical to ensuring that youhave the opportunity to be a partner in theeducational decisions made regarding yourchild. This notice of your procedural safe-guards will be made available to you, at aminimum, upon initial referral or your requestfor an evaluation; upon the school district'srefusal to conduct an initial evaluation that you

tional evaluation, records, hearings, and appeals. Theseprocedural safeguards apply for children with disabili-ties.

it is clearly not feasible. If your native lan-guage or other mode of communication is nota written language, the school district musthave requested; upon each notification of a

meeting of the individual educational plan (IEP)team for your child; upon your consent to areevaluation of your child; upon the school

ensure that• the notice is translated orally or by other

means to you in your native language orother mode of communicationdistrict's receipt of a request for a due process

hearing; and any other time you as a parentrequest to receive a copy.

• you understand the content of the notice• there is written evidence that the district

has met this requirement.

You may elect to receive a copy of your proce-dural safeguards and any notices required byelectronic mail communication, if the schooldistrict makes that option available. A districtmay also place a current copy of the proce-dural safeguards notice on its Internet website,if a website exists.

The prior written notice must include thefollowing information:

• a description of and explanation of why theaction is proposed or refused by the schooldistrict

• a description of any options considered bythe IEP team and why those options werenot selectedUnder the IDEA, you have the following rights. • a description of other factors relevant to thedistrict's proposed or refused action

Prior Written Notice • a description of each evaluation procedure,assessment, record, or report the districtused as a basis for making any decision(s)regarding your child ('Evaluation" meansprocedures used to determine whether yourchild has a disability and to determine thenature and extent of the special education

You have a right to prior written notice from theschool district a reasonable time before theschool district proposes or refuses to initiate orchange the identification, evaluation, educa-tional placement, or the provision of a freeappropriate public education (FAPE) to yourchild. Since graduation from high school with astandard regular diploma is a change in place-ment, prior written notice of it is required.

and related Services that your child needs.)• a statement that you have protections

under these procedural safeguards and howyou can obtain a copy of this description ofthe safeguards

Prior written notice must be written in languagethat is understandable to the general public andin your native language or other mode ofcommunication commonly used by you, unless

• sources you may contact for assistance inunderstanding your procedural safeguardsunder the IDEA.

for consent, the school district may not use themediation or due process procedures in orderto obtain agreement or a ruling that the ser-vices may be provided. If you refuse consent toinitial placernent or you fail to respond to arequest to provide consent for initial placement,however, the school district will not be in viola-tion of the requirement to make FAPE availableto your child for the failure to provide specialeducation and related services for which thedistrict requested consent.

Informed Consent

The school district must obtain your writtenconsent before it can

• conduct an initial individual evaluation todetermine eligibility for special educationservices

• initially provide special education and re-lated services to your child, or

• reevaluate your child, except where theschool district can show that it has takenreasonable steps to obtain your consent forreevaluation and you have failed to respond. Your consent is not required before

• reviewing existing data as part of an evalua-tion or a reevaluation• administering a test or other evaluation thatis administered to all children unless beforeadministration of that test or evaluationconsent is required of parents of all children,

If your child is a ward of the State and is notresiding with you, the district must make rea-sonable efforts to obtain your informed consentfor an initial evaluation. However, foster par-ents are able to provide consent. The schooldistrict is not required to obtain your consent or

• screening of your child by a teacher orfor an initial evaluation if your rights as a parentof the child have been terminated under Statelaw or your right to make educational decisionshas been removed by a judge under State lawand consent for an initial evaluation has beengiven by an individual appointed by the judgeto represent the child.

specialist to determine appropriate instruc-tional strategies for curriculum implementa-tion, which is not an evaluation for eligibilityfor special education and related services.

Participation in Meetings

You must be afforded the opportunity to partici-pate in meetings regarding the identification,evaluation, eligibility, reevaluation, and educa-tional placement of your child. In Order toensure your participation, the school districtmust provide you with notice of meetings earlyenough for you to make arrangements toattend. The notice must inform you of thepurpose and a mutually agreeable place andtime for the meeting and who, by title or posi-tion, will be in attendance. The notice for theIEP meeting must also include a statement thatyou have the right to invite individuals withspecial knowledge or expertise about your childto attend the IEP meeting with you.

You should be fully informed of all informationthat is important to the activity for which yourconsent is sought in your native language orother mode of communication, unless it isclearly not feasible. You should understand andagree in writing to the carrying out of the activ-ity for which the district seeks your consent,and the consent form must describe the activityand list the records, if any, that will be releasedand to whom.

Your consent to an initial evaluation does notmean that you have given consent for place-ment in a special education program. Yourconsent is voluntary, and you may revoke it atany time before the action to which you con-sented occurs. For a child beginning at age fourteen (14) or

younger if determined appropriate by the IEPteam, the notice must indicate that a purpose ofthe meeting will be the development of a state-ment of the transition service needs of yourchild and that the school district will invite yourchild to the meeting. For a child beginning atage sixteen (16) or younger if determinedappropriate by the IEP team, the notice mustindicate that a purpose of the meeting is the

If you do not provide consent for an initialevaluation or you fail to respond to a requestfor consent, the district may, but is not requiredto, pursue the initial evaluation by using themediation or due process procedures describedbelow, if appropriate. If you do not provideconsent for initial placement in a special educa-tion program or you fail to respond to a request

If you request access to the records before anIEP meeting or a due process hearing, thedistrict must provide you with access prior tothe meeting or hearing. The school district maypresume that you have authority to inspect andreview your child's records unless it has beeninformed that you do not have this right (forexample, because of legal action, such as acourt order). When you access your child'srecords, you will only be permitted to see theinformation which relates to your child whenrecords contain information on more than onechild.

consideration of needed transition services foryour child, indicate that the school district willinvite your child to the meeting, and indicateany other agency that will be invited to send arepresentative to the meeting.

A meeting does not include informal or un-scheduled conversations involving schooldistrict personnel and conversations on issuessuch as teaching methodology, lesson plans, orcoordination of service provision, if those issuesare not addressed in your child's IEP. A meet-ing also does not include preparatory activitiesin which school personnel may engage todevelop a proposal or response to a proposalyou have made that will be discussed at a latermeeting with you.

Upon your request, you have a right to informa-tion about the types of educational records kepton your child, where they are maintained, andhow you can gain access to them. You have aright for a representative to inspect and reviewthe record and have someone from the schooldistrict explain or interpret any item in therecords to you on your reasonable request.

As a parent, you are an important member ofyour child's IEP team and are encouraged to beinvolved in meetings where decisions are maderegarding the educational placement of yourchild. If you cannot attend the meeting, how-ever, the school district must use other methodsto ensure your participation, including indi-vidual or conference telephone calls. Decisionsabout your child's placement can be made bythe IEP team even if you do not attend themeeting, but the district must maintain a recordof its attempts to arrange a mutually agreedupon time and place for the meeting that in-cludes things such as detailed telephone callsmade or attempted and the results of thosecalls, copies of correspondence sent to you andany responses received, or detailed records ofvisits made to your home or workplace and theresults of those visits.

If you are unable to review the records at theschool or district office, you must be givencopies of the records. The school district maycharge a fee for the copies if such a chargedoes not prevent you from inspecting andreviewing the records. The district may notcharge a fee for the time needed to search foror collect the information. In any event, youhave a right to receive a free copy of yourchild's IEP, evaluation report, and any otherdocumentation used to determine your child'seligibility for a special education program.

The school district is responsible for protectingthe confidentiality of your child's educationalrecords. The district may only release informa-tion with your consent unless otherwise allowedby state or federal law. The district must keep arecord, including the names, dates of access,and reasons for seeking access of all people(except parents and authorized school officials)who have obtained access to educationalrecords.

The district must take whatever action is neces-sary to ensure that you and your child under-stand the proceedings at a meeting, which mayinclude arranging for an interpreter if you oryour child is deaf or your native language is notEnglish.

Records

If you believe that any statements in yourchild's records are wrong, misleading, or violatethe privacy or other rights of your child, youhave the right to request a hearing to challengethis information. The school district must pro-vide you with information on its records hearingprocess.

You may inspect and review any of your child'seducational records that are collected, main-tained or used by the school district in theeducation of your child. Without unnecessarydelay but no later than thirty (30) days afteryour request, the district must afford you ac-cess to inspect and review your child's records.

tion must be considered by the district in anydecision regarding your child and may bepresented as evidence in a due process hear-ing.

The school district is required to inform youwhen personally identifiable informationcollected, maintained, or used in educationalrecords is no longer needed to provide educa-tional services to your child. At your request.this information must be destroyed by thedistrict, but the district may keep a permanentrecord of your child's name, address, phonenumber, grades, attendance record, classesattended, grade level completed, and yearcompleted.

If an IEE is requested by an administrative lawjudge (ALJ) as part of a due process hearing,the evaluation must be at public expense.

Mediation

Parents and school districts have the opportu-nity to participate in mediation as an informaland non-litigious way to resolve disagree-ments over any matter related to a proposal orrefusal to initiate or change the identificationof, evaluation of, educational placement of, orprovision of FAPE to your child. The FloridaDepartment of Education (FDOE) makesmediation available at no cost to you or theschool district.

Independent Educational Evaluation

If you do not agree with an evaluation ob-tained by the school district, you have theright to ask the school district to obtain anindependent educational evaluation (IEE) atno cost to you. An ''independent educationalevaluation'' means that your child will beevaluated by a qualified person who is not anemployee of the school district. If you ask foran IEE, the school district must ensure thatthe IEE is conducted without unnecessarydelay, or it must initiate a due process hearingto show that its evaluation is appropriate orthat the evaluation obtained by you did notmeet the school district's criteria. If the schooldistrict initiates a due process hearing and thefinal decision is that the district's evaluation isappropriate, you still have the right to anindependent evaluation, but at your expense.If you request an IEE, the school district mayask you for a reason you object to thedistrict's evaluation. However, you are notrequired to give a reason, and the district maynot unreasonably delay its response to yourrequest.

Mediation• is available to resolve disputes over mat-

ters that arise even prior to the filing of arequest for due process hearing

• is voluntary for both parties• is conducted by a qualified and impartial

mediator who has been trained in effectivemediation techniques

• shall be scheduled in a timely manner andshall be held in a location that is conve-nient to both parties

• is confidential so that discussions whichoccur during the mediation process maynot be used as evidence in due processhearings or civil proceedings

• shall not be used to deny or delay yourright to a due process hearing or to denyany other rights afforded to you.If the school district agrees to fund the IEE,

the criteria under which the evaluation isconducted, including the location of the evalu-ation and the qualifications of the examiner,must be the same as those the school districtuses when it initiates an evaluation. Theschool district may not impose any conditionsor timelines for obtaining an IEE other thanthose related to the location of the evaluationand the qualifications of the examiner.

When agreement is reached through media-tion, the parties are required to execute alegally binding agreement that sets forth theresolution, states that all discussions duringthe mediation are confidential, is signed byyou and a representative of the district whohas authority to bind the district, and is en-forceable in any appropriate state or federalcourt.

If you have an IEE conducted at your ownexpense and the evaluation meets the schooldistrict's criteria for similar evaluations initi-ated by the district, the results of your evalua-

A list of qualified and impartial mediators ismaintained by the FDOE, and mediators areselected from that list on a rotating basis.

Mediators may not be employees of school writing about the allegations in the com-plaintdistricts or other agencies which provide

educational services to students with disabili-ties. However, a mediator is not considered anemployee of a school district or other agencyjust because he or she is paid by the agency toserve as a mediator. To request a mediationyou may contact your school district excep-tional student education office or DOE at 850-245-0476

• review all relevant information and makean independent determination as towhether the school district is violating astate or federal requirement regarding theeducation of students with disabilities

• issue a written decision to you that ad-dresses each issue presented in the com-plaint, including findings of fact, conclu-sions, and the reasons for the FDOE's finaldecisionState Complaint Procedures

• extend the 60-day time limit if exceptionalcircumstances exist.In addition to mediation, the FDOE maintains

a state complaint procedure whereby parentsand other interested parties may file a statecomplaint alleging that a school district hasviolated state or federal requirements regard-ing the education of students with disabilities.The state complaint procedures are dissemi-nated to parents and other interested individu-als, including parent training and informationcenters.

Decisions by the Florida Department of Edu-cation are final. If any of the issues containedin a complaint are also the subject of a dueprocess hearing, the FDOE will set thoseissues aside until the conclusion of the hear-ing. Other issues will be resolved using theprocedures described above. If an issue israised in a state complaint that has alreadybeen decided through a due process hearing,the administrative law judge's decision in ahearing is final and will not be reconsideredthrough the state complaint procedure.

State complaints may be riled by sending asigned, written complaint to Chief, Bureau ofExceptional Education and Student Services,Florida Department of Education, TurlingtonBuilding, Room 614, 325 West Gaines Street,Tallahassee, Florida 32399-0400.

Local Education Agency ComplaintIf you choose to file a complaint with the superin-tendent in your local school district, you mustprovide the superintendent with a signed, writtencomplaint which meets the requirements listedabove. Within five days from the time the superin-tendent receives your complaint, the district willnotify the Florida Department of Education that ithas received your complaint. The district mayoffer you mediation to resolve the concerns raisedin your complaint. Within 25 days of the receipt ofyour complaint, the superintendent will provideyou with a written response detailing the results ofthe district's inquiry. If you disagree with theresults, you may appeal the district's response bywriting to the Florida Department of Education.

The signed, written complaint must• include a statement which describes how a

requirement of the IDEA has not been met• include an explanation of the facts on

which the statement is based• allege a violation that occurred within one

year of the date when the complaint isfiled, unless the violation is continuing oryou are requesting compensatory servicesfor a violation which occurred within threeyears of the date the complaint is filed.

On receipt of a formal complaint filed by you,the FDOE will advise you of your right toalternate resolution activities, including media-tion, and within sixty (60) calendar days aftera complaint is date-stamped in the bureau

Due Process Hearings

While use of mediation and the state com-plaint procedures are preferable and lesslitigious, parents and school districts have theright to request an impartial due processhearing. A request for a due process hearingmay be made regarding any proposal orrefusal of the school district to initiate orchange the identification of, evaluation of,

chief's office, the FDOE must• conduct an independent on-site investiga-

tion, if the FDOE determines that is neces-sary

• provide you with the opportunity to submitadditional information either orally or in

due process hearing that meets the aboverequirernents.

educational placement of, or provision ofFAPE to your child. Should a due processhearing be required, the hearing will be con-ducted by the FDOE through an impartialadministrative law judge (ALJ) with Florida'sDivision of Administrative Hearings (DOAH) inaccordance with applicable Florida Statutesand State Board of Education Rules.

Your request for due process hearing will besufficient, unless the school district notifiesyou and the ALJ within 15 days of receipt ofthe request for due process hearing that itdoes not meet the content requirements listedabove. Within five (5) days of DOAH's receipt

Process for Requesting a Due Process Hear- of such notice, the assigned ALJ must make adetermination on the face of the request foring

A request for a due process hearing mustallege a violation that occurred not more thantwo years before the complaining party knewor should have known about the alleged actionthat forms the basis of the complaint. Theschool district must have a procedure in placethat requires a party requesting a due processhearing to complete and provide to the otherparty a request for due process heating (whichmust remain confidential). The school districtwill provide a request for due process hearingform to you for completion, and you shouldfile it with the district as instructed. When youfile your request, you must also forward acopy of the request to the Bureau for Excep-tional Education and Student Services at theaddress indicated on the complaint form.

due process hearing as to whether it meets thecontent requirements and must immediatelynotify the pat-ties in writing of that determina-tion.

A party may amend its request for due pro-cess hearing only if the other party consents inwriting to the amendment and is given theopportunity to resolve the request through aresolution meeting as described below; or theALJ gives permission to do so no later thanfive (5) days before the due process hearingbegins. If a party files an amended request fordue process hearing, the timelines for theresolution meeting and the time period toresolve begin again with the filing of theamended request.

If you use and thoroughly complete the formthat the school district provides to you, yourcomplaint should be sufficient. At a mini-mum, yourrequest for due process hearing

If you file a request for due process hearingand the school district has not sent a priorwritten notice to you regarding the subjectmatter contained in your request, the schooldistrict must within ten (10) days of receivingthe request send to you a response that in-

must include• the name of your child• the address of the residence of your child cludes• the name of the school your child is at- • an explanation of why the district proposed

or refused to take the action raised in thetending• in the case of a homeless child or youth, request for due process hearing

available contact information for your childand the name of the school your child is

• a description of other options that the IEPteam considered and the reasons those

attending options were rejected• a description of the nature of the problem • a description of each evaluation procedure,

assessment, record, or report the districtused as the basis for the proposed or

about which you are complaining thatrelates to the proposed or refused initiationor change, including facts relating to the refused actionproblem • a description of the other factors that are

relevant to the district's proposed or re-fused action.

• a proposed resolution of the problem tothe extent known and available to you atthe time.

The provision of this prior written notice willnot preclude the school district from assertingthat your request for due process hearing isinsufficient, where appropriate.

A party requesting a hearing will not receivethe hearing or engage in a resolution sessionas described below until the party or an attor-ney representing the party files a request for

• enforceable in any appropriate state orfederal court.

Except as provided above, the party receivingthe request for due process hearing must sendto the other party a response that specificallyaddresses the issues raised in the request If the parties execute an agreement, either

party may void the agreement within three (3)business days of signing it.

within ten (10) days of receiving the request.

Resolution MeetingWithin fifteen (15) days of receiving yourrequest for due process hearing and prior tothe initiation of a due process hearing, theschool district must convene a meeting withyou and the relevant member or members ofthe IEP team who have specific knowledge of

Administrative Law JudgesIf a hearing is necessary, an impartial adminis-trative law judge (ALJ) will be assigned topreside over the hearing and arrive at a deci-sion. The ALJ may not be an employee of theschool agency involved in the education orcare of your child or be anyone who has apersonal or professional interest which wouldconflict with impartiality in the hearing. ALJsassigned to due process hearings must pos-sess knowledge of and the ability to under-stand the provisions of the IDEA, its regula-tion, Florida rules, and state and federal courtinterpretations of the IDEA. In addition, ALJsare required to possess the knowledge andability to conduct hearings in accordance withappropriate, standard legal practice. InFlorida, ALJs must conduct hearings in accor-dance with Uniform Rules for AdministrativeProceedings, Chapter 28-106, FAC and Rule6A-6.03311 (11), FAC. Should a hearing benecessary, the ALJ will inform you or yourrepresentative/attorney of the specificprehearing conferences, procedures, andtimelines that apply, including procedures forconducting discovery.

the facts identified in your request that• includes a representative of the school

district who has decision-making authority• may not include an attorney of the district

unless you are accompanied by an attor-ney.

The purpose of the resolution meeting is foryou to discuss your request for due processhearing and the facts that form the basis of therequest so that the school district has theopportunity to resolve the dispute.

The resolution meeting need not be held 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 previously.

If the school district has not resolved therequest for due process hearing to your satis-faction within thirty (30) days of the receipt ofthe request, the due process hearing mustoccur. The forty-five (45) -day timeline for theALJ to issue a final decision will begin to runat the expiration of this thirty (30) -day period.

Due Process Hearing RightsDuring a due process hearing, both you andthe school district, at a minimum, have theright to

• be represented by counsel or to be repre-sented by a qualified representative underapplicable Florida standards or to beaccompanied and advised by individualswith special knowledge or training regard-ing the problems of exceptional students,

Except where you and the school district havejointly agreed to waive the resolution meetingor to use mediation and where you have filedthe request for due process hearing, yourfailure to participate in the resolution meetingwill delay the timelines for the resolutionprocess and due process hearing until themeeting is held.

or any combination of the above• present evidence• cross-examine and compel the attendance of witnesses• prohibit the introduction of any evidence at the hearing that has not been disclosed to

you at least five (5) business days beforeIf a resolution to the dispute is reached at theresolution meeting, the parties must execute a

the hearinglegally binding agreement that is• obtain written or at your option an elec-• signed by you and a representative of the

district who has the authority to bind thedistrict

tronic verbatim record of the hearing at nocost

• obtain written or at your option electronicfindings of fact and decisions at no cost.

action in federal, district, or state circuit courtwithout regard to the amount in controversy.In such an action, the court must receive therecords of the administrative proceedings;hear additional evidence at the request of aparty; and basing its decision on the prepon-derance of the evidence, grant relief it deter-mines appropriate. In the alternative, a dissat-isfied party may request an impartial review

If either you or the district has evidence suchas evaluations or recommendations based onevaluations and intend to use it at the hearing,copies must be provided to the other party atleast five (5) business days before the hearing.The ALJ may bar any party that fails to ex-change this evidence from introducing therelevant evaluation or recommendation at thehearing without the consent of the other party.

by the appropriate state district court of ap-peal as provided under applicable Florida law.Nothing under this provision limits the rights,procedures, and remedies available under theU.S. Constitution, the Americans with Disabili-ties Act of 1990, Title V of the RehabilitationAct of 1973, or other Federal laws protectingthe rights of children with disabilities. How-ever, before a party may file a civil actionunder these laws seeking relief that is alsoavailable under the IDEA, the procedures for adue process hearing must first be exhausted asset forth here and under the IDEA.

As a parent, you also have the followingrights:

• to be told by the school district of free orlow cost legal help and other relevantservices which may be available in thearea

• to be told about the availability of media-tion (However, since mediation is volun-tary for both parties, the district has theright to choose not to participate in media-tion.) Attorney's Fees

If you prevail in a due process hearing or in afurther proceeding, you may bring an action infederal, district, or state circuit court to re-cover reasonable attorneys' fees and costswithin the time determined by law. Only adistrict court of the United States or a state

• to have your child attend the hearing, ifyou wish

• to open the hearing to the public, if youwish

• to have the hearing conducted at a timeand place reasonably convenient to you

• to receive a copy of the record of the circuit court may award reasonable attorneysfees, and awards will be based on rates pre-vailing in your community for the kind andquality of services provided to you.

hearing and the final order issued by theALJ.

After the thirty (30) days for informal resolu-tion have expired, the 45-day timeline for theALJ to reach a final decision will begin and thehearing will be held. The ALJ may grantspecific extensions to this time period at therequest of either party and must mail a copyof the decision to all parties. The decision ofthe ALJ is final unless either you or the schooldistrict chooses to seek court review of thedecision as described below.

The court may deny a request for attorneys'fees for services performed after the districthas made a written offer of settlement morethan ten (10) days before the hearing begins.If you did not accept the offer within ten (10)days and the court or ALJ finds that the reliefobtained by you is not more favorable to youthan the district's offer of settlement, fees maynot be awarded to you. However, fees may beawarded if you were ''substantially justified'' inrejecting the district's settlement offer.After deleting any personally identifiable

information, the FDOE must transmit theALJs final order to the State Advisory Com-mittee for the Education of Exceptional Stu-dents and make it available to the public.

Attorneys' fees may not be awarded relating toany IEP team meetings (unless the IEP meet-ing is convened as a result of a due processhearing or other judicial action), resolutionmeetings, or mediation sessions that are heldprior to the filing of a request for a due processhearing.

Court Review of ALJ DecisionFollowing a due process hearing, a partydissatisfied with the ALJ's final order has theright within thirty (30) days to bring a civil

school year, and this removal does not consti-tute a change in placement of your child. Theschool district is not required to provide edu-cational services during these removals ifservices would not be provided to studentswithout disabilities under the same circum-stances.

A court may reduce attorneys' fees if the courtfinds that you unreasonably prolonged the timeit took to resolve the dispute or your attorneys'hourly rate or time spent in the proceedingswas excessive. However, this does not apply ifthe court finds that the school district unrea-sonably delayed the final resolution of theaction or proceeding or that there was a viola-tion of the IDEA. Long Term Removals

Removals for a total of ten (10) days or morein a school year may or may not constitute achange in placement, depending on the pat-tern of those removals and based on factorssuch as the length of each removal, the totalamount of time your child is removed in theschool year, and the length of time betweeneach removal. If your child is removed formore than ten (10) days in a school year, theschool district must provide your child withservices to the extent necessary to allow forappropriate progression in the general curricu-lum and appropriate advancement towardachieving IEP goals.

Fees may also be awarded to the FDOE or theschool district that is a prevailing party at a dueprocess hearing against your attorney if yourattorney files a request for due process orsubsequent court action that is frivolous,unreasonable, or without foundation. Fees canbe recovered against you if you continued tolitigate after litigation clearly became frivolous,unreasonable, or without foundation. In addi-tion, a prevailing school agency may recoverreasonable attorney's fees against you or yourattorney if your request for a due processhearing or subsequent court action was pre-sented for any improper purpose, such as toharass, to cause unnecessary delay, or toincrease the cost of litigation needlessly.

If your child has been removed for more thanten (10) school days either consecutively orcumulatively during the school year and theremovals constitute a pattern that is a changein placement, the school district must notifyyou of the decision to remove and provide youwith a copy of the procedural safeguards onthe same day that the decision to remove ismade. In addition, an IEP meeting must beheld as soon as possible but no later than ten(10) school days after the removal decision inorder to conduct a manifestation determina-tion.

Placement during Due Process Hearings andAppealsDuring the time that any administrative orjudicial proceeding is taking place, your child isto remain in his or her present educationalplacement unless you and the school districtagree otherwise. If the dispute concerns theinitial admission of your child to public school,then your child, with your consent, will beplaced in a public school program until thecompletion of the proceedings. If an ALJagrees with you that a change of placement isappropriate, the new placement must be pro-vided during any appeal process.

In making a manifestation determination, theIEP team shall consider all relevant informa-tion supplied by you, observations of yourchild, your child's IEP and placement and anyother relevant information; and determine thatin relationship to the behavior subject to

Discipline

If your child's behavior impedes learning or thelearning of others, strategies including positivebehavioral interventions and supports must beconsidered in the development of your child'sIEPs.

disciplinary action• your child's IEP and placement were ap-

propriate and implemented• your child's disability impaired the ability

to understand the impact and conse-quences of the subject behavior

Short Term RemovalsTo the extent that children without disabilitieswould be disciplined, school district personnelmay remove your child from the current place-ment for a total of ten (10) days or less in a

• your child's disability impaired the abilityto control the behavior subject to disciplin-ary action.

dural safeguards. The school district must alsoIf the IEP team determines that your child'sbehavior was not related to the disability, thenfurther removal of your child is appropriate,and your child will be offered services in adifferent setting. The IEP team must decidewhat services are necessary to allow for ap-propriate progression in the general curriculumand appropriate advancement toward achiev-ing IEP goals.

follow all of the procedures described aboveunder ''Long Term Removals.'' For infractionsother than weapons and drugs violations, aschool district can request through an expe-dited hearing that an ALJ place your child inan IAES for up to 45 calendar days if theschool district believes that the child is danger-ous to self or others.

An IAES is a different location where educa-tional services are provided for a specific timeperiod for disciplinary reasons. The IAES willbe determined by the IEP team and must beselected so as to enable your child to continueto progress in the general curriculum, althoughin another setting, and to continue to receivethose services and modifications includingthose described in the current IEP that willenable him or her to meet IEP goals. The IAESmust also include services and accomoda-tions to address the behavior which resulted inthe removal and that are designed to preventthe misconduct from recurring.

If the IEP team determines that your child'sbehavior was caused by the disability, thenyour child's placement cannot be changed as adisciplinary intervention, but the team coulddetermine that a change of placement isnecessary to provide FAPE in the least restric-tive environment. If you disagree with disci-plinary decisions made, you have the right torequest an expedited due process hearing.

Whether the behavior was caused by thedisability or not, within ten (10) business daysof a removal that constitutes a change inplacement or after removal of your child formore than ten (10) school days in the schoolyear, the IEP team will plan for a functionalbehavioral assessment and develop a positivebehavioral intervention plan (PBIP) for yourchild to address the behavior which resulted inremoval or will review and modify, as neces-sary, a PBIP that already exists. Beginning onthe eleventh cumulative school day of removalin a school year, the district must provideservices to the extent necessary to enable yourchild to appropriately progress in the generalcurriculum and advance toward achieving IEPgoals.

If you disagree with the decision and requestan expedited due process hearing to challengethe decision, your child will remain in the IAESplacement during the pendency of the hearingunless you and the school district agree other-wise or until the 45-day time period expires. Aschool may seek subsequent expedited hear-ings and alternative placements if after the first45-day term has expired the school districtbelieves your child is still dangerous. If youdisagree with the ALJs decision from theexpedited due process hearing, you mayappeal the decision by filing a civil action in afederal, district, or state circuit court.Interim Alternative Educational Settings

If your child carries a weapon to school or to aschool function, possesses a weapon at schoolor at a school function, knowingly possessesor uses illegal drugs, or sells or solicits the saleof a controlled substance while at school or aschool function, the school district may placeyour child in an interim alternative educationalsetting (IAES) for up to 45 calendar dayswithout your written consent. When the deci-sion to place your child in an IAES has beenmade, the school district must notify you ofthis on the day the decision was made andprovide you with a copy of the notice of proce-

If your child has not been found eligible forspecial education but the district has knowl-edge that your child is disabled before thebehavior occurred for which disciplinary actionis being taken, you may assert the sameprotections in discipline afforded to a studentwith a disability. The district is considered tohave knowledge of a disability if you haveexpressed concerns in writing (or orally if youcan not read or write) that your child needsspecial education and related services, if yourchild's behavior or school performance shows

action on your part. However, your request forreimbursement can not be reduced or denied iftire school prevented you from providing thewritten notice, you had not received a copy ofthe procedural safeguards, or requiring you toprovide the notice would have likely resulted inphysical harm to your child. In addition and atthe discretion of an ALJ or court, your requestfor reimbursement may not be denied if youcannot read and write in English or compliancewith the notice would have likely resulted inphysical harm to your child.

the need for special education, if you haverequested an evaluation to determine if yourchild needs special education, or if one of Yourchild's teachers or other district staff has madea referral for special education services to thespecial education director or other appropriatedistrict personnel. The district is not consideredto have knowledge of a disability if it has con-ducted an evaluation and found your child doesnot have a disability or if it determined that anevaluation was not needed and informed you inwriting of the determination that your childdoes not have a disability.

Transfer of Parental RightsPrivate School Placements

On your child's eighteenth birthday, your rightsunder the IDEA will transfer to your childunless your child has been determined incom-petent under Florida law or a guardian advo-cate has been appointed to make decisionsaffecting educational services as providedunder Florida law. Although the rights havetransferred, the district will continue to providewritten notices to both you and your child andthe school district will notily you and your childof the transfer of rights when your child turnseighteen (18).

If the district has made EAPE available to yourchild but you elect to place your child in aprivate school or facility without the consent orreferral of the school district, the school districtis not required to pay for the cost of the educa-tion, including special education and relatedservices. However, if your child previouslyreceived special education from a schooldistrict, an AU may order the school district toreimburse you for the costs of a private schoolif the AU finds that the school district had notmade FAPE available to your child in a timelymanner and that the private placement isappropriate.

For children who have attained age eighteen(18) and are incarcerated in a juvenile justicefacility or local correctional facility, all rightsaccorded to parents transfer to the student,including the right to notices.

The AU or court may reduce or deny yourrequest for reimbursement if at the most recentIEP meeting that you attended prior to remov-ing your child from public school, you did notinform the IEP team that you were rejecting itsproposed placement, including stating yourconcerns and intent to enroll Your child in aprivate school at public expense; at least ten(10) business days prior to removal of yourchild from public school, you did not givewritten notice to the district that you wererejecting the placement and enrolling your childin a private school; prior to removal of yourchild from public school, the district informedyou in writing of its intent to evaluate yourchild, but you did not make your child avail-able; or upon a court finding of unreasonable

If your child has reached eighteen (18) anddoes not have the ability to provide informedconsent with respect to educational program-ming, you may have your child declaredincompetent and the appropriate guardianshipestablished under Florida law, be appointed torepresent the educational interests of yourchild throughout eligibility for special educa-tion and related services, or have anotherappropriate individual appointed to representthe educational interests of your child through-out eligibility for special education and relatedservices if you are not available.

The sample notice was developed anddisseminated by the Florida Department ofEducation, K-12 Public Schools, Bureau ofExceptional Education and Student Services.

For more information about procedural safeguardsin exceptional student education please contact

• the exceptional student education administratorin your school district

• the Florida Diagnostic and Learning ResourceSystem center serving your area

• the Bureau of Exceptional Education andStudent Services at the Florida Department ofEducation (850 245 ,0475)

.

Florida Department of EducationJohn L. Winn, Commissioner

ESE 9256

Title adapted from Florida Department of Education document for districts use

Florida Department of EducationJohn L. Winn, Commissioner

Florida Department of EducationJohn L. Winn, Commissioner