Under IDEA PL 94-142
(Least Restricted Environment)
The following information is a detailed statement of parental (guardian)
rights under PL 94-142, as amended. In the interest of simplicity,
some rights have been paraphrased here.
As a parent you have a right to:
|... be notified in writing a reasonable time before the public agency:
... a description of the action proposed or refused by the public agency with an explanation of why it is recomended, what other options were considered and why those options were ruled out.
... a description of each evaluation procedure, test, record, or report the public agency used as the basis for any decision regarding your child.
... be informed of any other relevant factors that the public agency considered in its decision.
... receive a notice that is written in language understandable to the general public.
... be provided notice in your native language or other mode of communication used by you, unless it is clearly not feasible to do so.
... be informed of sources to contact to obtain assistance in understanding your rights.
|... the notice is explained to them orally or in a mode of communication
... that they understand the information they have been given; and
... that there is written evidence that these requirements have been met.
Your written consent is required before the public agency can:
|... conduct an inititial evaluation of your child;
... place your child in special education and related services for the first time;
... conduct a reevaluation of your child.
The public agency must be sure that you understand and agree in writing to carrying out of the activity which requires your consent. The consent form must describe what you are agreeing to, list which of your child's records (if any) will be released and specify who will receive them.
Your consent is to be given freely, and you may withdraw it at any time.
Except for the preplacement and initial placement, consent may not be required as a condition of any benefit to you or your child.
If you refuse to give your consent for the initial evaluation, the public agency may continue to pursue an evaluation through mediation and due process hearing procedures except to the extent inconsistent with State law relating to parental consent.
Regarding reevaluation if the public agancy can demonstrate that it
has taken reasonable measures to obtain your consent, and you failed to
respond, the public agency may move forward with revaluation of your child.
EVALUATION AND PLACEMENT PROCEEDURES
Before a child is placed in special education services, a full and individual initial evaluation of the child must be conducted. This evaluation must consist of procedures to determine whether a child is a child with a disability and to determine the educational needs of the child. In this evaluation process your child has a right to:
|... be tested in such a manner that results are not affected by race
... be tested in his/her native language or other mode of communication, unless it is not clearly feasible to do so;
... be tested with validated tests used in a manner consistent with their purpose;
... be tested by trained personnel in accordance with test instructions;
... be tested with procedures in accordance with any instructions provided by the producer of such tests;
... have tests selected and administered in a way that ensures that when a test is given to a child with impaired sensory, manual or speaking skills, it measures the child's ability or what the child has learned and not the degree of impairment (unless, of course, measuring impairment is the purpose of the test);
... have his/her educational program determined on the basis of more than one test or procedure;
... be evaluated by a group of knowledgeable persons including at least one teacher or specialist who is knowledgeable about the kind of problem your child is thought to have;
... be tested in all three areas related to his or her suspected problem;
... be evaluated with a variety of assessment tools and strategies to gather relevant functional and developmental information, including information provided by you, that may assist in determining whether s/he is a child with a disability and in determining his/her educational needs. This includes information related to enabling him/her to be involved in and progress in the general curriculum or, for preschool children, to participate in appropriate activities;
... be evaluated with technically sound instruments that may access the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.
|... collect information from many sources;
... ensure that his information is documented and carefully considered;
... provided you with a copy of the evaluation report and documentation of determination of eligibility;
... ensure that the placement decision is made by a group of persons, including you and others who know about your child, who can interpret the evaluation results and who know about placement options.
... Ensure that your child shall not be determined to be a child with a disability if it is based on a lack of instruction in reading and math or limited English proficiency;
... ensure that the placement decision is made in such a way that your child's education will be provided in the least restricted environment according to established guidelines.
Each public agency shall ensure:
|... that the individualized education program (IEP) for each child
with a disability is reviewed annually according to established guidelines.
... that the IEP team and other qualified professionals, as appropriate,:
If you do not agree with the evaluation provided by the public agency - that is, if you don't think that the right tests were given or the right conclusions were reached - you may obtain an independant educational evaluation.
The public agency must provide you, upon your request, information about where independant educational evaluations may be obtained.
"Independant educational evaluation" means an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for your child's education.
"Public expense" means that the public agency either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided st no cost to the parent, consistent with guidelines on methods and payments for provision of free appropriate public education.
A parent has the right to an independent evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency. However, the public agency has a right to initiate a hearing to show that its evaluation is appropriate. If the final decision is that the evaluation is appropriate, you still have the right to an independant educational evaluation, but not at public expense.
If you have an independent educational evaluation conducted at your own expense, the results of this evaluation:
|... must be considered by the public agency in any decision regarding
your child's education; and
... may be presented as evidence at a formal hearing.
Independenteducational evaluations conducted at public expense must
meet the same criteria (qualifications of examiner, etc) as those
conducted by the public agency.
You have a right to:
|... examine all records relating to your child and to participate in
meetings with respect to the identification, evaluation, and educational
placement of your child and the provision of a free appropriate public
education to your child, and to obtain an independent educational evaluation
of your child. The public agency must comply with your request to
review records without unnecessary delay and before any meeting or hearing,
within 45 days after the request has been made;
... have someone at the public agency explain or interpret any item in your child's records upon reasonable request;
...receive copies of the records if this is the only way to ensure that you will be able to review and inspect them;
... have a representative inspect and review the records.
You have a right to receive, upon request, a list of the types and locations of records collected, maintained or used by the public agency.
A participating public agency may charge a fee for copies of records which are made for parents if the fee does not effectively prevent the parents from exercising their right to inspect and review those records.
A participating public agency may not charge a fee to search for or retrieve the information.
If you feel that any information in your child's education records are wrong or misleading, or violates the privacy or other rights of the child, you may ask the participating public agency to change it.
The participating public agency must either change such statements in a reasonable period of time or formally refuse to do so.
If it refuses, the public agency must inform you of its refusal and advise you of your right to a hearing to challenge information in the child's education record.
If you request such a hearing, the public agency must conduct one on the matter.
If the hearing is decided in your favor, the public agency must change the information and inform you in writing that it has done so.
If, as a request of the hearing, the public agency's information is held to be accurate, you have the right to add a statement to the record commenting on the information or setting forth any reasons for disagreeing with the agency's decision.
Your statement placed in your child's records must:
|... be kept as long as the contested part of the overall record is
... be disclosed along with the contested portion of the records to any party to whom the agency released the records.
CONFIDENTIALITY OF INFORMATION
States are required to have procedures to identify, locate and evaluate children with disabilities and to publish a statewide notice in newspapers or other media which informs parents of the requirements regarding identification, location and evaluation of children with disabilities as contained in the State's Annual Program Plan. It must include:
|... information as to the language(s) in which the notice is available;
... a description of the children on whom confidential information is kept, the methods and sources used to gather various types of information and uses to be made of the information;
... a description of how this information is kept, disclosed and destroyed;
... a description of all of the rights of parents and children regarding this information
The public agency is responsible for protecting the confidentiality of your child's education records by:
|... permitting parents to see only that information which relates to
their own child when records contain information on more than one child;
... requiring your consent before your child's education records are given to anyone not involved in your child's education;
... requiring your consent before using your child's records for any purposes other than those related to providing special education and related services;
... not releasing information from education records to participating agencies without parental consent unless authorized to do so under federal law and regulation;
... adhering to state policies and procedures which apply in the event that you decline to give this consent and that the public agency feels the records should be given to the person who requested them. These procedures could allow the public agency to send copies of the records to the requesting person or agency, under certain circumstances, despite your objection;
... protecting the confidentiality of personally identifiable information at collection, storage, disclosure and destruction stages;
... assigning an individual who is responsible for ensuring the confidentiality of records;
... guaranteeing that all persons who collect or use such information receive training in the State's policies and procedures regarding confidentiality;
... keeping for public inspection a list of names and positions of those employees who are permitted access to these records;
... informing you when confidential information is no longer needed to provide educational services to the child;
... destroying the information at your request. However, a permanent record of a student's name, address and phone number, his/her grades, attendance record, classes attended, grade level completed, and year completed may be maintained without limitation.
The State educational agency shall ensure that each public agency establishes and implements procedures to ensure that your child has the right to:
|... be educated to the maximum extent appropriate with children who
are not disabled;
... be in regular education environment unless the nature or severity of the disability is such that he/she cannot receive a satisfactory education in the regular classes using additional aids and services;
... have available a variety of placements to meet the needs of children with disabilities for special education and related services;
... have a range of placements available, including instruction in regular classes, special classes, special schools, home instruction and instruction in hospitals and institutions;
... supplimentary services (such as resourse room or itinerant instruction) to be provided in conjunction with regular class placement.
|... reviewed and decided upon at least annually;
... based on the IEP;
... as close to home as possible.
Unless the IEP class for a different placement, your child should attend the school he or she would attend if not disabled.
In selecting the least restrictive environment for your child, the public agency must consider any possible harmful effects that a particular placement may have on your chld or on services your child is to receive.
In providing or arranging for the provision of nonacademic and extracurricular services and activities, the public agency shall ensure that your child with a disability participates with nondisabled children in those services and activities to the maximum extent appropriate to his/her needs.
It is the responsibility of the State educational agency to ensure that the general requirements governing educational placement in the least restrictive environment are implemented by public agencies by:
|... making arrangements with public and private institutions to ensure
that to the maximum extent appropriate, children with disabilities are
educated with nondisabled children;
... ensuring that teachers and administrators are fully informed about the implications of the concept of the least restrictive environment and receive training and assistance in its application;
... ensuring that all participating public agencies in the state are carrying out these requirements. If there is evidence that a public agency is not, the Department of Education is obliged to review the public agency's justification for its actions and to see that any shortcomings are corrected.
You as the parent, or a public education agency, may initiate a hearing on any matter relating to the identification, evaluation or educational placement of your child or the provision of a free appropriate public education to your child.
You may request an expedited hearing if you disagree with a determination that your child's behavior was not a manifestation of his/her disability or a decision regarding placement following a disciplinary action.
The public educational agency may request an expidited hearing when the agency maintains that it is dangerous for your child to be in the current placement (placement prior to an interim alternative education setting) during the pendency of the due process proceedings.
All hearings must be conducted by the State educational agency in accordance
with state law and regulation.
An impartial hearing officer will be assigned to preside over any hearing and arrive at a decision. To ensure impartiality, a hearing officer may not be:
|... an employee of the State agency or a public agency (school system,
institution, etc.) which is involved in the education or care of your
... anyone who has a personal or professional interest which would conflict with objectivity in the hearing.
Each public agency must keep a list of persons who serve as hearing
officers and a statement of their qualifications.
Parties have the right to participate in a mediation process in an attempt to resolve disputes regarding any matters previously described in the section marked "Hearings."
The mediation process is voluntary on the part of the parties and cannot be used to deny or delay your right to a hearing or any other rights under PL 94-142. The mediation prosecc is conducted by a trained, qualified and impartial mediator.
The State maintains a list of individuals who are qualified mediators.
Each session in the mediationprocess shall be scheduled in a timely manner and shall be held in a location that is convenient to the parties to the dispute.
An agreement reached by the parties to the dispute in the mediation process shall be set forth in a written mediation agreement.
Discussions that occur during the mediation process are confidential
and may not be used as evidence in any subsequent due process hearings
or civil procedings and the parties to the parties to the mediation process
will be required to sign a confidentiality pledge prior to the commencement
of the mediation session(s).
During the conduct of a hearing you, as a parent, have a right to:
|... be accompanied and advised by counsel and by persons with special
knowledge or training with respect to the problems of children with disabilities;
... present evidence, confront, cross-examione and compel the attendance of witnesses;
... prohibit the introduction of evidence, including all evaluations completed by the final date of disclosure and recommendations based on the offering party's evaluations that the party intends to use at the hearing that had not been revealed to either party at least five (5) business days before the hearing;
... obtain a written, or at your option, electronic verbatim record of the hearing.
.. obtain a written, or at your option, electronic verbatim record of findings of fact and the decisions.
|... have your child who is the subject of the hearing attend the hearing
if you wish;
... open the hearing to the public if you wish;
... be told by the public agency where free or low-cost legal and other relevant services are available in the area:
... have the hearing conducted at a time and place reasonably convenient to you and your child.
The public agency shall ensure that not later than 45 days after the receipt of a request for a hearing; or in the case of a request for an expedited hearing in a period less than 45 days:
|... a final decision is reached in the hearing; and
... a copy of the decision is mailed to each of the parties.
Any party aggrieved by the findings and decision made in a hearing has the right to bring a civil action in either Federal District Court or State court of competent jurisdiction under section 615 (1)(2) of the Act. In accordance with Arkansas Code Annotated 6-41-216, any aggrieved party shall have thirty (30) days after the Hearing Officer's decision to file an appeal in State court. Appeals to the Federal court are not specifically subject to State created time limits; however, Federal courts will usually "borrow" the most closely analogous state limitations law, if it is not consistent with Federal law or policy.
Except for hearings related to disciplinary matters, during the time that the hearing and appeals process is taking place, your child is to remain in his or her present educational placementm unless you and the public agency agree otherwise.
If the dispute concerns the initial admission of your child to public school, then s/he, with your consent, will be placed in a public school program until the completion of the proceedings.
When you request a hearing regarding a disciplinary action or to challenge
the interim alternative educational setting or manifestation determination,
your child must remain in the interim alternative educational setting pending
the decision of the hearing officer or until the expiration of the 45 day
time period, whichever occurs first, unless you and the public agency agree
Each public agency must agree that the rights of a child are protected when:
|... the parents of the child are not known
... the agency, after reasonable efforts, cannot locate the parent; or
... the child is a ward of the state
It is the public agency's duty to assign an individual the act as a surrogate (stand-in) for the parents.
|... a method for determining whether a child needs a surrogate parent;
... a method for assigning a surrogate parent to the child.
The public agency shall ensure that a person selected as a surrogate:
|... does not have a conflict of interest; and
... is qualified to represent the child
A person who otherwise qualifies to be a surrogate parent in accordance with previously stated guidelines is not an employee of the agency because s/he may be compensated by the agency to serve as a surrogate parent.
The surrogate may represent the child in all matters relating to identification,
evaluation, placement and the provision os a free appropriate public education.
In any action proceeding, the court, in its discretion, may award reasonable
attorney's fees as part of the costs to the parents or guardians of a child
or youth with a disability who is the prevailing party.
COMPLAINT PROCEEDURES OF THE STATE
Each public agency shall provide to parents a copy of the "Complaint
Proceedures of the State" in compliance with Part B of the IDEA.
TRANSFER OF PARENTAL
RIGHTS AT AGE OF MAJORITY
When your child with a disability reaches the age of majority under the State law (which is 18), unless your child has been determined to be incompetent under State Law:
|... all rights, other than the right to receive notice, accorded to
you under PL 94-142 transfer to your child;
... the public agency shall provide notice to both you and your child of the transfer of rights; however;
... you will continue to be provided any notice required under PL 94-142
PLACEMENT OF CHILDREN IN
PRIVATE SCHOOLS BY PARENTS
Upon notification by you, as the parent of a child with a disability,
of your intent to place your child in a private school, the public agency
shall provide you with written information regarding payment for education
of children enrolled in private school without consent of or referral by
the public agency. this information contains limitations on your
reimbursement for private school placement wich may apply if you, as the
parent of a child with a disability, elect to place your child in a private
school, without prior notice to the school.
OF THE STATE of ARKANSAS
In compliance with 34 Code of Federal Regulations (CFR) 300.660-300.662
and 302.64-302.66, the Arkansas Department of Education, special Education,
hereby establish policy and procedures for the management of complaints
received from an organization or individual alleging a violation of requirements
of Public Law (PL) 94-142 as amended, the Individuals with Disabilities
Education Act, or PL 89-313.
|A. Filing a Complaint
B. Processing a Complaint
D. Conducting The Investigation
E. The Report