Professional Documents
Culture Documents
Safeguards
Safeguards
As a parent, you are a vital member of the Committee on Special Education (CSE) or
Committee on Preschool Special Education (CPSE) in New York State. The CSE/CPSE
is responsible for developing recommendations for special education programs and
services for your child. You must be given opportunities to participate in the CSE/CPSE
discussion and decision-making process about your child’s needs for special education.
The following information concerns procedural safeguards that are your legal rights under
federal and State laws to be informed about and involved in the special education process
and to make sure that your child receives a free appropriate public education (FAPE).
A copy of this procedural safeguards notice must be provided to you one time a year and:
• upon initial referral or your request for an evaluation of your child.
• whenever you request a copy.
• upon receipt of the first due process complaint in a school year requesting mediation
or an impartial hearing.
• the first time in a school year when the school district receives a copy of a State
complaint that you submitted to the New York State Education Department (NYSED).
• when a decision is made to suspend or remove your child for discipline reasons that
would result in a disciplinary change in placement.
The Procedural Safeguards Notice has been adapted from the model form developed by
the United States Department of Education (USDOE). Information was added regarding
New York State’s requirements.
Table of Contents
General Information ...................................................................................................... 1
Definitions ....................................................................................................................... 8
Fees .............................................................................................................................. 10
Safeguards .................................................................................................................... 12
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Filing a Complaint.......................................................................................................... 15
Mediation....................................................................................................................... 18
The Child’s Placement While the Due Process Complaint and Hearing are
Pending (Pendency) .................................................................................................. 20
Appeals ........................................................................................................................ 26
Civil Actions, Including the Time Period in Which to File Those Actions ....................... 27
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Appeal ........................................................................................................................... 34
Protections for Children Not Yet Eligible for Special Education and Related
Services...................................................................................................................... 35
General ......................................................................................................................... 40
Resources ..................................................................................................................... 41
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GENERAL INFORMATION
Content of notice
The written notice must:
1. describe the action that your school district proposes or refuses to take;
2. explain why your school district is proposing or refusing to take the action;
3. describe each evaluation procedure, assessment, record, or report your school district
used in deciding to propose or refuse the action;
4. include a statement that you have protections under the procedural safeguards
provisions in Part B of the Individuals with Disabilities Education Act (IDEA);
5. tell you how you can obtain a description of the procedural safeguards notice if the
action that your school district is proposing or refusing is not an initial referral for
evaluation;
6. include resources for you to contact for help in understanding Part B of the Individuals
with Disabilities Education Act (IDEA);
7. describe any other choices that your child's Committee on Special Education (CSE)
or Committee on Preschool Special Education (CPSE),considered and the reasons
why those choices were rejected; and
8. provide a description of other reasons why your school district proposed or refused
the action.
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If your native language or other mode of communication is not a written language, your
school district must ensure that:
1. the notice is translated for you orally by other means in your native language or other
mode of communication;
2. you understand the content of the notice; and
3. there is written evidence that 1 and 2 have been met.
NATIVE LANGUAGE
34 CFR section 300.29; 8 NYCRR section 200.1(ff)
Native language, when used with an individual who has limited English proficiency,
means the following:
1. The language normally used by that person, or, in the case of a child, the language
normally used by the child's parents;
2. 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
34 CFR section 300.505; 8 NYCRR section 200.5(a), (f), and (i)
If your school district offers parents the choice of receiving documents by e-mail, you may
choose to receive the following by e-mail:
1. prior written notice (notice of recommendation);
2. procedural safeguards notice; and
3. notices related to a due process complaint.
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3. You understand that the consent is voluntary on your part and you may withdraw your
consent at anytime.
Your withdrawal of consent does not negate (undo) an action that has occurred after you
gave your consent and before you withdrew it.
PARENTAL CONSENT
34 CFR section 300.300; 8 NYCRR sections 200.5(a) and (b)
Consent for initial evaluation
Your school district cannot conduct an initial evaluation of your child to determine whether
your child is eligible under Part B of IDEA to receive special education and related
services without first providing you with prior written notice of the proposed action and
without obtaining your consent as described under the heading Parental Consent.
Your school district must make reasonable efforts to obtain your informed consent for an
initial evaluation to decide whether your child is a child with a disability.
Your consent for initial evaluation does not mean that you have also given your consent
for the school district to start providing special education and related services to your
child.
If your child is enrolled in public school or you are seeking to enroll your child in a public
school and you have refused to provide consent or failed to respond to a request to
provide consent for an initial evaluation and your child is school-age, your school district
may, but is not required to, seek to conduct an initial evaluation of your child by utilizing
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 and your child can not receive special education services even if he/she
would have been eligible.
3. who is a destitute child under section 398(1) of the Social Services Law.
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1. it took reasonable steps to obtain your consent for your child's reevaluation; and
2. you did not respond.
If you refuse to consent to your child's reevaluation, the school district may, but is not
required to, pursue your child's reevaluation by using mediation, due process complaint,
resolution meeting, and impartial due process hearing procedures to seek to override
your refusal to consent to your child's reevaluation. As with initial evaluations, your school
district does not violate its obligations under Part B of IDEA if it declines to pursue the
reevaluation in this manner.
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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.
The school district must develop and implement procedures to ensure that your refusal
to consent to any of these other services and activities does not result in a failure to
provide your child with FAPE.
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 IDEA, which allow each state to use whatever State, local, federal
and private sources of support are available in the State to meet the requirements of Part
B of IDEA.
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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 choose to share with the school
district an evaluation of your child that you obtained at private expense:
1. Your school district must consider the results of the evaluation of your child, if it meets
the school district’s criteria for IEE, in any decision made with respect to the provision
of FAPE to your child; and
2. You or your school district may present the evaluation as evidence at a due process
hearing regarding your child.
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CONFIDENTIALITY OF INFORMATION
DEFINITIONS
34 CFR section 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 IDEA.
PERSONALLY IDENTIFIABLE
34 CFR section 300.32; 8 NYCRR section 200.5(e)
Personally identifiable means information that has:
(a) your child's name, your name as the parent, or the name of another family member;
(b) your child's address;
(c) a personal identifier, such as your child’s social security number or student number;
or
(d) a list of personal characteristics or other information that would make it possible to
identify your child with reasonable certainty.
NOTICE TO PARENTS
34 CFR section 300.612
When the New York State Education Department (NYSED) and school districts maintain
personally identifiable information, notice must be given that is adequate to fully inform
parents about confidentiality of personally identifiable information, including:
1. a description of the extent to which the notice is given in the native languages of the
various population groups in the State;
2. a description of the children on whom personally identifiable information is maintained,
the types of information sought, the methods used in gathering the information
(including the sources from whom information is gathered), and the uses to be made
of the information;
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3. a summary of the policies and procedures that participating agencies must follow
regarding storage, disclosure to third parties, retention, and destruction of personally
identifiable information; and
4. a description of all of the rights of parents and children regarding this information,
including the rights under FERPA and its implementing regulations in 34 CFR Part 99.
Before any major identification, location, or evaluation activity (also known as “child find”),
the notice must be published or announced in newspapers or other media, or both, with
circulation adequate to notify parents of the activity to locate, identify, and evaluate
children in need of special education and related services.
ACCESS RIGHTS
34 CFR section 300.613; 8 NYCRR sections 200.2(b)(6) and 200.5(d)(6)
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 45 calendar days
after you have made a request.
Your right to inspect and review education records includes:
1. a response from the participating agency to your reasonable requests for explanations
and interpretations of the records;
2. a request that the participating agency provide copies of the records if you cannot
effectively inspect and review the records unless you receive those copies; and
3. 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 State law governing such matters as guardianship, or separation and divorce.
RECORD OF ACCESS
34 CFR section 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.
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FEES
34 CFR section 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.
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HEARING PROCEDURES
34 CFR section 300.621
A hearing to challenge information in education records must be conducted according to
the procedures for such hearings under FERPA.
RESULT OF HEARING
34 CFR section 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:
1. be maintained by the participating agency as part of the records of your child as long
as the record or contested portion is maintained by the participating agency; and
2. if the participating agency discloses the records of your child or the challenged portion
to any party, the explanation must also be disclosed to that party.
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SAFEGUARDS
34 CFR section 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 New York State’s 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
34 CFR section 300.624
Your school district must inform you when personally identifiable information collected,
maintained, or used is no longer needed to provide educational services to your child.
The information must be destroyed at your request. However, a permanent record of
your child’s name, address, and phone number, his or her grades, attendance record,
classes attended, grade level completed, and year completed may be maintained without
time limitation.
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complaint contains multiple issues of which one or more are part of such a hearing,
NYSED must set aside the State complaint, or any part of the State complaint that is
being addressed in the due process hearing until the hearing is over. Any issue in the
State complaint that is not a part of the due process hearing must be resolved using the
time limit and procedures described above.
If an issue raised in a State complaint has previously been decided in a due process
hearing involving the same parties (you and the school district), then the due process
hearing decision is binding on that issue and NYSED must inform the complainant that
the decision is binding.
A complaint alleging a school district’s or other public agency’s failure to implement a due
process hearing decision must be resolved by NYSED.
FILING A COMPLAINT
34 CFR section 300.153; 8 NYCRR section 200.5(l)
An organization or individual may file a signed written State complaint under the
procedures described above.
The State complaint must include:
1. a statement that a school district or other public agency has violated a requirement of
Part B of IDEA or its regulations;
2. the facts on which the statement is based;
3. the signature and contact information for the complainant; and
4. if alleging violations regarding a specific child:
(a) the name of the child and address of the residence of the child;
(b) the name of the school the child is attending;
(c) 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;
(d) a description of the nature of the problem of the child, including facts relating to the
problem; and
(e) a proposed resolution of the problem to the extent known and available to the party
filing the complaint at the time the complaint is filed.
The complaint must allege a violation that occurred not more than one year prior to the
date that the complaint is received as described under the heading Adoption of State
Complaint Procedures.
The party filing the State complaint must forward a copy of the complaint to the school
district or other public agency serving the child at the same time the party files the
complaint with NYSED.
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4. if the child is a homeless child or youth, the child’s contact information and the name
of the child’s school;
5. 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
6. a proposed resolution of the problem to the extent known and available to you or the
school district at the time.
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 15 calendar days of
receiving the complaint, that the receiving party believes that the due process complaint
does not meet the requirements listed above.
Within five calendar days of receiving the notification the receiving party (you or the school
district) considers a due process complaint insufficient, the impartial 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:
1. 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
2. by no later than five 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 15 calendar days of receiving
the complaint) and the time period for resolution (within 30 calendar days of receiving the
complaint) start again on the date the amended complaint is filed.
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2. a description of other options that your child's CSE or CPSE considered and the
reasons why those options were rejected;
3. a description of each evaluation procedure, assessment, record, or report the school
district used as the basis for the proposed or refused action; and
4. a description of the other factors that are relevant to the school district’s proposed or
refused action.
Providing the information in items 1-4 above does not prevent the school district from
asserting that your due process complaint was insufficient.
MODEL FORMS
34 CFR section 300.509
NYSED must develop model forms to help you file a State complaint and a due process
complaint. However, NYSED or the school district may not require you to use these model
forms. You can use the State’s model form or another appropriate form, so long as it
contains the required information for filing a due process complaint or a State complaint.
The State’s model forms may be found at http://www.p12.nysed.gov/specialed/. Copies
of the forms will be provided to you by the school district or by contacting NYSED, Office
of Special Education at 518-473-2878.
MEDIATION
34 CFR section 300.506; 8 NYCRR section 200.5(h)
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:
1. is voluntary on your part and the school district's part;
2. is not used to deny or delay your right to a due process hearing, or to deny any other
rights you have under Part B of IDEA; and
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Arranging mediation
Mediation is arranged through the school district with CDRCs. The State is responsible
for the cost of the mediation process, including the costs of meetings.
Each meeting in the mediation process must be scheduled in a timely manner and held
at a place that is convenient for you and the school district.
Mediation agreements
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:
1. states that all discussions that happened during the mediation process will remain
confidential and may not be used as evidence in any subsequent due process hearing
or civil proceeding; and
2. is signed by both you and a representative of the school district who has the authority
to bind the school 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 confidential. They
cannot be used as evidence in any future due process hearing or civil proceeding of any
federal court or State court of a State receiving assistance under Part B of IDEA.
Impartiality of mediator
The mediator:
1. may not be an employee of a State educational agency or school that is involved in
the education or care of your child; and
2. must not have a personal or professional interest which conflicts with the mediator’s
objectivity.
A person who otherwise qualifies as a mediator is not an employee of a school district or
State agency solely because he or she is paid by the agency or school district to serve
as a mediator.
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RESOLUTION PROCESS
34 CFR section 300.510; 8 NYCRR section 200.5(j)
Resolution meeting
Within 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 CSE or CPSE who have specific knowledge of
the facts identified in your due process complaint. The meeting:
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1. must include a representative of the school district who has decision-making authority
on behalf of the school district; and
2. may not include an attorney of the school district unless you are accompanied by an
attorney.
You and the school district determine the relevant members of the CSE or CPSE 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:
1. you and the school district agree in writing to waive the meeting; or
2. you and the school district agree to use the mediation process, as described under
the heading Mediation.
A school district must make reasonable efforts to obtain your participation in the resolution
meeting.
Resolution period
If the school district has not resolved the due process complaint to your satisfaction within
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 45-calendar-day timeline for school-age students or 30-calendar-day timeline for
preschool students for issuing a final decision begins at the expiration of the 30-calendar-
day resolution period, with certain exceptions for adjustments made to the 30-calendar-
day resolution period, as described below.
Except where you and the school district have both agreed to waive the resolution process
or to use mediation, your failure to participate in the resolution meeting will delay
the timelines for the resolution process and due process hearing until you agree
to participate in a meeting. If you decide not to attend the resolution meeting, your
impartial hearing may be dismissed by an impartial hearing officer.
If after making reasonable efforts and documenting such efforts, the school district is not
able to obtain your participation in the resolution meeting, the school district may, at the
end of the 30-calendar-day resolution period, request that an impartial hearing officer
dismiss your due process complaint. Documentation of such efforts must include a record
of the school district’s attempts to arrange a mutually agreed upon time and place, such
as:
1. detailed records of telephone calls made or attempted and the results of those calls;
2. copies of correspondence sent to you and any responses received; and
3. detailed records of visits made to your home or place of employment and the results
of those visits.
If the school district fails to hold the resolution meeting within 15 calendar days of
receiving notice of your due process complaint or fails to participate in the resolution
meeting, you may ask a hearing officer to order that the 45-calendar-day due process
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hearing timeline for school-age students (or the 30-calendar-day due process hearing
timeline for preschool) begin.
Written agreement
If a resolution to the dispute is reached at the resolution meeting, you and the school
district must enter into a legally binding agreement that is:
1. signed by you and a representative of the school district who has the authority to bind
the school district; and
2. enforceable in any State court of competent jurisdiction (a State court that has
authority to hear this type of case) or in a district court of the United States.
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2. the school district withheld information from you that it was required to provide to you
under Part B of IDEA.
HEARING RIGHTS
34 CFR section 300.512; 8 NYCRR section 200.5(j)
General
Any party to a due process hearing (including a hearing relating to disciplinary
procedures) or an appeal, as described under the sub-heading Appeal of decisions;
impartial review has the right to:
1. be accompanied and advised by a lawyer and/or persons with special knowledge or
training regarding the problems of children with disabilities;
2. present evidence and confront, cross-examine, and require the attendance of
witnesses;
3. prohibit the introduction of any evidence at the hearing that has not been disclosed to
the other party at least five business days before the hearing;
4. obtain a written, or, at your option, electronic, word-for-word record of the hearing;
and
5. obtain written, or, at your option, electronic findings of fact and decisions.
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HEARING DECISIONS
34 CFR section 300.513; 8 NYCRR section 200.5(j)
Decision of hearing officer
An IHO’s decision on whether your child received FAPE must be based on substantive
grounds.
In matters alleging a procedural violation, an IHO may find that your child did not receive
FAPE only if the procedural inadequacies:
1. interfered with your child’s right to FAPE;
2. significantly interfered with your opportunity to participate in the decision-making
process regarding the provision of FAPE to your child; or
3. caused a deprivation of an educational benefit.
Construction clause
None of the provisions described above can be interpreted to prevent an IHO 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 sections 300.500 through
300.536).
None of the provisions under the headings: Filing a Due Process Complaint; Due
Process Complaint; Model Forms; Resolution Process; Impartial Due Process
Hearing; Hearing Rights; and Hearing Decisions (34 CFR sections 300.507 through
300.513), can affect your right to file an appeal of the due process hearing decision with
the State Review Officer (SRO) (see heading Appeals - Finality of Decision).
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APPEALS
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Time limitation
The party (you or the school district) bringing the action have four months from the date
of the decision of the SRO to file a civil action.
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Additional procedures
In any civil action, the court:
1. receives the records of the administrative proceedings;
2. hears additional evidence at your request or at the school district's request; and
3. bases its decision on the preponderance of the evidence and grants the relief that the
court determines to be appropriate.
Rule of construction
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. However, before filing 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
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 meeting, and impartial due process
hearing procedures) before going directly into court.
ATTORNEYS’ FEES
34 CFR section 300.517
General
In any action or proceeding brought under Part B of IDEA, if you prevail, the court, in its
discretion, may award reasonable attorneys’ fees as part of the costs to you.
In any action or proceeding brought under Part B of IDEA, the court, in its discretion, may
award reasonable attorneys’ fees as part of the costs to a prevailing school district, or
NYSED 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 IDEA, the court, in its discretion, may
award reasonable attorneys’ fees as part of the costs to a prevailing state educational
agency (SEA) or school district, to be paid by you or your attorney, if your request for a
due process hearing or later court case was presented for any improper purpose, such
as to harass, to cause unnecessary delay, or to unnecessarily increase the cost of the
action or proceeding.
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Award of fees
A court awards reasonable attorneys’ fees as follows:
1. Fees must be based on rates prevailing in the community in which the action or
hearing began for the kind and quality of services furnished. No bonus or multiplier
may be used in calculating the fees awarded.
2. Fees may not be awarded and related costs may not be reimbursed in any action or
proceeding under Part B of IDEA for services performed after a written offer of
settlement to you if:
a. 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 10 calendar days before the proceeding begins;
b. the offer is not accepted within 10 calendar days; and
c. 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.
3. Fees may not be awarded relating to any meeting of the CSE or CPSE unless the
meeting is held as a result of an administrative proceeding or court action. Fees also
may not be awarded for a mediation as described under the heading Mediation.
A resolution meeting, as described under the heading Resolution meeting, is not
considered a meeting convened as a result of an administrative hearing or court
action, and also is not considered an administrative hearing or court action for
purposes of these attorneys’ fees provisions.
The court reduces, as appropriate, the amount of the attorneys’ fees awarded under Part
B of IDEA, if the court finds that:
1. you, or your attorney, during the course of the action or proceeding, unreasonably
delayed the final resolution of the dispute;
2. the amount of the attorneys’ fees otherwise authorized to be awarded unreasonably
exceeds the hourly rate prevailing in the community for similar services by attorneys
of reasonably similar skill, reputation, and experience;
3. the time spent and legal services furnished were excessive considering the nature of
the action or proceeding; or
4. 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.
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General
The procedures for the discipline of students with disabilities must be in accordance with
section 3214 of the Education Law and Part 201 of the Regulations of the Commissioner
of Education. While the school has the authority to suspend or remove your child for
violating the school’s code of conduct, you and your child have certain rights throughout
the process.
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Once a child with a disability has been removed from his or her current placement for a
total of 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
child’s disability (see Manifestation determination, below) and the disciplinary change
of placement would exceed 10 school days in a row, school personnel may apply the
disciplinary procedures to that 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 child’s CSE or CPSE
determines the IAES for such services.
Services
The services that must be provided to a child with a disability who has been removed
from the child’s current placement may be provided in an IAES.
A school district is only required to provide services to a child with a disability who has
been removed from his or her current placement for 10 school days or less in that school
year, if it provides services to a child without disabilities who has been similarly removed.
In New York State, the school district must provide alternative instruction to a student with
a disability who has been suspended for less than 10 days in a school year if the student
is of compulsory school age. If the student is not of compulsory school age, alternative
instruction must be provided if these services are provided to nondisabled students.
The education service requirements for students with disabilities during the first 10 days
of suspension in a school year are the same as they are for nondisabled students. In
New York State, alternative instruction must be provided for a minimum of one hour daily
for an elementary student and two hours daily for a secondary student. If a student who
is not of compulsory school age is suspended, the school district is not required to provide
the student with the alternative instruction unless they provide this instruction to
nondisabled students.
A child with a disability who is removed from the child’s current placement for more than
10 school days must:
1. 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 child’s IEP; and
2. receive, as appropriate, a functional behavioral assessment, and behavioral
intervention services and modifications that are designed to address the behavior
violation so that it does not happen again.
After a child with a disability has been removed from his or her current placement for 10
school days in that same school year, and if the current removal is for 10 school days
in a row or less and if the removal is not a change of placement (see definition below),
then school personnel, in consultation with at least one of the child’s teachers, determine
the extent to which services are needed to enable the child to continue to participate in
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the general education curriculum, although in another setting, and to progress toward
meeting the goals set out in the child’s IEP.
If the removal is a change of placement (see definition below), the child’s CSE or CPSE
determines the appropriate services 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 child’s IEP.
Manifestation determination
Within 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 10
school days in a row or less and not a change of placement), the school district, the
parent, and relevant members of the CSE or CPSE (as determined by the parent and the
school district) must review all relevant information in the student’s file, including the
child’s IEP, any teacher observations, and any relevant information provided by the
parents to determine:
1. if the conduct in question was caused by, or had a direct and substantial relationship
to, the child’s disability; or
2. if the conduct in question was the direct result of the school district’s failure to
implement the child's IEP.
If the school district, the parent, and relevant members of the child’s CSE or CPSE
determine that either of those conditions was met, the conduct must be determined to be
a manifestation of the child’s disability.
If the school district, the parent, and relevant members of the child’s CSE or CPSE
determine that the conduct in question was the direct result of the school district’s failure
to implement the IEP, the school district must take immediate action to remedy those
deficiencies.
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Special circumstances
Whether or not the behavior was a manifestation of the child’s disability, school personnel
may remove a student to an IAES (determined by the child’s CSE or CPSE) for up to 45
school days, if the child:
1. carries a weapon (see the definition below) to school or has a weapon at school, on
school premises, or at a school function under the jurisdiction of NYSED or a school
district;
2. knowingly has or uses illegal drugs (see the definition below), or sells or solicits the
sale of a controlled substance, (see the definition below), while at school, on school
premises, or at a school function under the jurisdiction of NYSED or a school district;
or
3. 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 NYSED
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 other 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 of the
child because of a violation of a code of student conduct, the school district must notify
the parents of that decision, and provide the parents with a procedural safeguards notice.
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DETERMINATION OF SETTING
34 CFR section 300.531; 8 NYCRR section 201.10
The CSE or CPSE must determine the IAES for removals that are changes of
placement, and removals under the headings Additional authority and Special
circumstances, above.
APPEAL
34 CFR section 300.532; 8 NYCRR section 201.11
General
The parent of a child with a disability may file a due process complaint (see above) to
request a due process hearing if he or she disagrees with:
1. any decision regarding placement made under these discipline provisions; or
2. 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 the child is substantially
likely to result in injury to the child or to others.
Whenever a parent 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, Hearings on Due Process
Complaints, and Appeal of decisions; impartial review except as follows:
1. The school district must arrange for an expedited due process hearing, which must
occur within 20 school days of the date the hearing is requested and must result in a
determination within 10 school days after the hearing.
2. Unless the parents and the school district agree in writing to waive the meeting, or
agree to use mediation, a resolution meeting must occur within seven calendar days
of receiving notice of the due process complaint. The hearing may proceed unless
the matter has been resolved to the satisfaction of both parties within 15 calendar
days of receipt of the due process 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 Appeals, above).
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2. the parent requested an evaluation related to eligibility for special education and
related services under Part B of IDEA; or
3. the child’s teacher, or other school district personnel expressed specific concerns
about a pattern of behavior demonstrated by the child directly to the school district’s
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:
1. the child’s parent has not allowed an evaluation of the child or refused special
education services; or
2. the child has been evaluated and determined to not be a child with a disability under
Part B of IDEA.
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Transmittal of records
If a school district reports a crime committed by a child with a disability, the school district:
1. must ensure that copies of the child’s special education and disciplinary records are
transmitted for consideration by the authorities to whom the agency reports the crime;
and
2. may transmit copies of the child’s special education and disciplinary records only to
the extent permitted by FERPA.
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GENERAL
34 CFR section 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 sections 300.131 through 300.144.
Limitation on reimbursement
The cost of reimbursement described in the paragraph above may be reduced or denied:
1. if: (a) At the most recent CSE or CPSE meeting that you attended prior to your
removal of your child from the public school, you did not inform the CSE or CPSE that
you were rejecting the placement proposed by the school district to provide FAPE to
your child, including stating your concerns and your intent to enroll your child in a
private school at public expense; or (b) At least 10 business days (including any
holidays that occur on a business day) prior to your removal of your child from the
public school, you did not give written notice to the school district of that information;
2. if, prior to your removal of your child from the public school, the school district provided
prior written notice to you, of its intent to evaluate your child (including a statement of
the purpose of the evaluation that was appropriate and reasonable), but you did not
make the child available for the evaluation; or
3. upon a court’s finding that your actions were unreasonable.
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RESOURCES
USDOE - IDEA Site - (includes Part 300 of the Code of Federal Regulations)
http://idea.ed.gov/
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Peekskill Site
NYS Education Department
Special Education Quality Assurance
1 Park Place, 3rd Floor
Peekskill, NY 10566
(914) 940-2900
(914) 402-2180 (fax)
July 2017