THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT OF 1997

20 U.S.C. § 1415 - Procedural Safeguards

(a) Establishment of Procedures

- (c) Content of Prior Written Notice
  (d) Procedural Safeguards Notice
  
  (e) Mediation
  
  (f) Impartial Due Process Hearing
  - - Five Day Rule
  (g) Appeal
  
  (h) Safeguards
  
  (i) Administrative Procedures
  - - Attorneys Fees
  (j) Maintenance of Current Educational Placement
  
  (k) Placement in Alternative Educational Setting - Discipline
  - - Authority of School Personnel
      Authority of Hearing Officer
      
      Manifestation of Determination Review
      
      Guns and Drugs
  (l) Rule of Construction (ADA, 504, 1983)
  
  (m) Transfer of Parental Rights at Age of Majority

20 U.S.C. § 1415 - Procedural Safeguards

(a) Establishment of Procedures.--Any State educational agency, State agency, or local educational agency that receives assistance under this part shall establish and maintain procedures in accordance with this section to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of free appropriate public education by such agencies.

(b) Types of Procedures.--The procedures required by this section shall include--

(1) an opportunity for the parents of a child with a disability to examine all records relating to such child and to participate in meetings with respect to the identification, evaluation, and educational placement of the child, and the provision of a free appropriate public education to such child, and to obtain an independent educational evaluation of the child;

- (PWDW Note: In some jurisdictions, school districts refuse to allow parents examine their child’s records. The statute clarifies that parents do have this right. Past litigation has focused on test data and test scores. While parents may not be entitled to the actual test protocols (if necessary to protect the integrity of the test instrument), parents should be entitled to test data, including raw scores, standard scores, percentile ranks, age and grade equivalent, etc.
  One issue relating to independent educational evaluations is the independence of the evaluator. Some school districts try to limit the diagnostic tests used by such an independent evaluator. One school district routinely instructs independent evaluators about the range of findings and recommendations they are permitted to make on behalf of a child. Obviously the "independence" of these evaluators is suspect.)

(2) procedures to protect the rights of the child whenever the parents of the child are not known, the agency cannot, after reasonable efforts, locate the parents, or the child is a ward of the State, including the assignment of an individual (who shall not be an employee of the State educational agency, the local educational agency, or any other agency that is involved in the education or care of the child) to act as a surrogate for the parents;

(3) written prior notice to the parents of the child whenever such agency--

- (A) proposes to initiate or change; or
  (B) refuses to initiate or change; the identification, evaluation, or educational placement of the child, in accordance with subsection (c), or the provision of a free appropriate public education to the child;
  - - (PWDW Note: If the school district refuses to change the identification or educational placement of a child after a request to do so, and does not provide the parent with written notice about the refusal, this has been viewed as a serious procedural breach by some Courts, Hearing Officers, and Administrative Law Judges. Proving that the parent did not receive notice is often easier than proving that the school’s IEP is not appropriate and the program secured by the parents is appropriate. Read 1415(c) below to see exactly what should be included in the notice to parents. Schools often fail to comply with this section and 1415(c).)

(4) procedures designed to ensure that the notice required by paragraph (3) is in the native language of the parents, unless it clearly is not feasible to do so;

(5) an opportunity for mediation in accordance with subsection (e);

(6) an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child;

(7) procedures that require the parent of a child with a disability, or the attorney representing the child, to provide notice (which shall remain confidential)--

- (A) to the State educational agency or local educational agency, as the case may be, in the complaint filed under paragraph (6); and
  (B) that shall include--
  - - (i) the name of the child, the address of the residence of the child, and the name of the school the child is attending;
      (ii) a description of the nature of the problem of the child relating to such proposed initiation or change, including facts relating to such problem; and
      
      (iii) a proposed resolution of the problem to the extent known and available to the parents at the time; and
      - (PWDW Note: This is mandatory. The parent or attorney must comply with this. Written notice from the parent or attorney must include the name of the child, the address of residence, the name of the school that the child is presently attending, a description of the nature of the problem with a factual history, and a proposed resolution to the problem. Failure to comply may be absolutely fatal to a parent’s claim. This provision is new. It was included because, during the closed "off the record" working committee meetings, many school districts complained that when they received requests for due process hearings, they didn’t know anything about the child, where the child lived, what the issue was, and what the parents wanted.)

(8) procedures that require the State educational agency to develop a model form to assist parents in filing a complaint in accordance with paragraph (7).

(c) Content of Prior Written Notice.--The notice required by subsection (b)(3) shall include--

(1) a description of the action proposed or refused by the agency;

(2) an explanation of why the agency proposes or refuses to take the action;

(3) a description of any other options that the agency considered and the reasons why those options were rejected;

(4) a description of each evaluation procedure, test, record, or report the agency used as a basis for the proposed or refused action;

(5) a description of any other factors that are relevant to the agency’s proposal or refusal;

(6) a statement that the parents of a child with a disability have protection under the procedural safeguards of this part and, if this notice is not an initial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained; and

(7) sources for parents to contact to obtain assistance in understanding the provisions of this part.

(PWDW Note: See the Note above in 1415(b)(3). The district’s failure to comply with this section can have serious consequences. Rather than state that a number of options were considered and rejected, the document must explain reasons and offer explanations. It cannot be a simple form checklist.)

(d) Procedural Safeguards Notice.--

(1) In general.--A copy of the procedural safeguards available to the parents of a child with a disability shall be given to the parents, at a minimum--

- (A) upon initial referral for evaluation;
  (B) upon each notification of an individualized education program meeting and upon reevaluation of the child; and
  
  (C) upon registration of a complaint under subsection (b)(6).
  - (PWDW Note: When a complaint is made in regard about any matter under 1415(b)(6), the school district must, at a minimum, provide the parents with a copy of their procedural safeguards. The contents of the procedural safeguards notice is provided below.)

(2) Contents.--The procedural safeguards notice shall include a full explanation of the procedural safeguards, written in the native language of the parents, unless it clearly is not feasible to do so, and written in an easily understandable manner, available under this section and under regulations promulgated by the Secretary relating to--

- (A) independent educational evaluation;
  (B) prior written notice;
  
  (C) parental consent;
  
  (D) access to educational records;
  
  (E) opportunity to present complaints;
  
  (F) the child’s placement during pendency of due process proceedings;
  
  (G) procedures for students who are subject to placement in an interim alternative educational setting;
  
  (H) requirements for unilateral placement by parents of children in private schools at public expense;
  
  (I) mediation;
  
  (J) due process hearings, including requirements for disclosure of evaluation results and recommendations;
  
  (K) State-level appeals (if applicable in that State);
  
  (L) civil actions; and
  
  (M) attorneys’ fees.
  - (PWDW Note: Parents should receive easy to read procedural safeguards. Recently, we scanned one state’s "Procedural Safeguards Notice" into the computer and, using the optical character recognition and word processor software. We evaluated the "ease of reading" and actual "reading grade level" of the document. The Notice was more than the 12^th grade reading level. At a minimum, reading clarity should be at 60-70% range, or higher, for a typical document. This Notice was at the 33% level in clarity. States and school districts can expect this to emerge as an issue in the future. In the beginning of the statute, I talked about the emphasis on minorities and households where English is the second language. OCR may examine the readability of the Notices provided to parents by school districts and states.)

(e) Mediation.--

(1) In general.--Any State educational agency or local educational agency that receives assistance under this part shall ensure that procedures are established and implemented to allow parties to disputes involving any matter described in subsection (b)(6) to resolve such disputes through a mediation process which, at a minimum, shall be available whenever a hearing is requested under subsection (f) or (k).

(2) Requirements.--Such procedures shall meet the following requirements:

- (A) The procedures shall ensure that the mediation process--
  - - (i) is voluntary on the part of the parties;
      (ii) is not used to deny or delay a parent’s right to a due process hearing under subsection (f), or to deny any other rights afforded under this part; and
      
      (iii) is conducted by a qualified and impartial mediator who is trained in effective mediation techniques.
      - (PWDW Note: The mediator is to be trained in mediation. This is proper. A good mediator does not need to know anything about special education law and practice. A mediator is not an arbitrator. (An arbitrator will eventually issue a ruling in favor of one party or the other.) Mediation is a process where the parties, in good faith, can resolve their dispute without litigation or a due process hearing. A mediator’s role is to ensure that both parties can express their views and positions, and help the other party actually hear and understand it. A mediator should never take a position or take sides. The mediator’s role is to facilitate the process of communication. Often mediators see their role as forcing a settlement, even this means that the mediator must take sides. Poorly trained mediators who insert their own personal and professional opinions into the process will quickly destroy trust and will cause the case to be litigated.
        Note: I am a trained mediator in divorce and custody litigation. I handled over one hundred domestic cases. I support mediation, if the mediator is and remains neutral throughout the process. Mediation is a two way street. Each side must be prepared to walk down the street together, and discuss their differences, without lawyers being present.
        
        Getting to Yes by Roger Fisher is an excellent book about how to devise "Win-Win" solutions to problems. If you are considering mediation, you should read this book. Both parties should understand their rights and the law before they enter mediation. End of PWDW Note)
  (B) A local educational agency or a State agency may establish procedures to require parents who choose not to use the mediation process to meet, at a time and location convenient to the parents, with a disinterested party who is under contract with--
  - - (i) a parent training and information center or community parent resource center in the State established under section 682 or 683; or
      (ii) an appropriate alternative dispute resolution entity; to encourage the use, and explain the benefits, of the mediation process to the parents.
      - (PWDW Note: Parents can be required to meet with a parent training center staff member or ADR staff person to discuss mediation. If parents fail to comply, they may be found to be "uncooperative" and may lose rights.)
  (C) The State shall maintain a list of individuals who are qualified mediators and knowledgeable in laws and regulations relating to the provision of special education and related services.
  
  (D) The State shall bear the cost of the mediation process, including the costs of meetings described in subparagraph (B).
  
  (E) Each session in the mediation process shall be scheduled in a timely manner and shall be held in a location that is convenient to the parties to the dispute.
  
  (F) An agreement reached by the parties to the dispute in the mediation process shall be set forth in a written mediation agreement.
  
  (G) Discussions that occur during the mediation process shall be confidential and may not be used as evidence in any subsequent due process hearings or civil proceedings and the parties to the mediation process may be required to sign a confidentiality pledge prior to the commencement of such process.
  - (PWDW Note: Confidentiality is crucial to the success of mediation. Discussions and admissions by the parties are confidential. Without confidentiality, mediation’s real purpose would be to gain tactical advantage in subsequent litigation. In law, settlement discussions are usually confidential, and they may not be used or disclosed in a subsequent trial if the case is not settled. Trying to use confidential information obtained in mediation or settlement discussions, could result in very adverse consequences if the case ends up in State or Federal Court.)

(f) Impartial Due Process Hearing.

(1) In general.--Whenever a complaint has been received under subsection (b)(6) or (k) of this section, the parents involved in such complaint shall have an opportunity for an impartial due process hearing, which shall be conducted by the State educational agency or by the local educational agency, as determined by State law or by the State educational agency.

(2) Disclosure of evaluations and recommendations.--

- (A) In general.--At least 5 business days prior to a hearing conducted pursuant to paragraph (1), each party shall disclose to all other parties all evaluations completed by that date and recommendations based on the offering party’s evaluations that the party intends to use at the hearing.
  (B) Failure to disclose.--A hearing officer may bar any party that fails to comply with subparagraph (A) from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party.
  - (PWDW Note: Parents are usually unaware of this provision. Most state regulations require that each party disclose and provide a copy of all documents and names of all witnesses to the other party one week before the hearing. Failure to comply will often result in the dismissal of the case. An exhibit list should include all research reports, learned treatises, journal articles, pertinent book chapters, and other documents that may be relevant to the case.)

(3) Limitation on conduct of hearing.--A hearing conducted pursuant to paragraph (1) may not be conducted by an employee of the State educational agency or the local educational agency involved in the education or care of the child.

(PWDW Note: Many parents believe that if the Hearing Officer is an employee of a school district in that state, the Hearing Officer is biased in favor of the school district. This occurs in some states. The quality of Hearing Officers varies throughout the country. Some people believe that the solution is to have attorneys as Hearing Officers. Other people believe that attorney Hearing Officer are rigid, and cause Hearings to be run as legal proceedings with the burden of proof on parents. There are no easy answers to this dilemma.)

(g) Appeal.--If the hearing required by subsection (f) is conducted by a local educational agency, any party aggrieved by the findings and decision rendered in such a hearing may appeal such findings and decision to the State educational agency. Such agency shall conduct an impartial review of such decision. The officer conducting such review shall make an independent decision upon completion of such review.

(PWDW Note: If the hearing is conducted at the local level, then the losing party may appeal to the State educational agency. The SEA will appoint an independent Reviewing Officer who shall issue a decision. The losing party, as described below in (i)(2)(A), may then appeal to State or Federal Court. The above subsection (g) is a two tiered system. First a due process hearing, then a review hearing, then Court, i.e., two levels before Court. Some states use a one-tier system. The initial hearing is not to be held by the LEA but instead by the SEA.)

(h) Safeguards.--Any party to a hearing conducted pursuant to subsection (f) or (k), or an appeal conducted pursuant to subsection (g), shall be accorded--

(1) the right to be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities;

(2) the right to present evidence and confront, cross-examine, and compel the attendance of witnesses;

(3) the right to a written, or, at the option of the parents, electronic verbatim record of such hearing; and

(4) the right to written, or, at the option of the parents, electronic findings of fact and decisions (which findings and decisions shall be made available to the public consistent with the requirements of section 617(c) (relating to the confidentiality of data, information, and records) and shall also be transmitted to the advisory panel established pursuant to section 612(a)(21)).

(PWDW Note: A special education due process hearing is similar to a trial. Basically, both parties are represented by counsel. In some jurisdictions, parents are ably represented by advocates who prevail over school board counsel. IDEA 97 clarifies that the parents are entitled to a written verbatim record, i.e., a transcript of the hearing, rather, as has been the practice in some states, a tape recording of the hearing.
Our system of justice has the adversarial approach as its core. In theory, truth will be flushed to the surface of a dispute because of our system. Trials consist of opening statements, submission of evidence with specific rules about admissibility, and specific rules regarding direct and cross-examination, followed by closing statements. Cross-examination of a witness can be an especially brutal experience for that witness. Ultimate success is dependent in part upon the law of the case, the specific facts, the degree of preparation by the attorneys, and most important, the life experiences of the Hearing Officer, the Judge or person who will determine the outcome.)

(i) Administrative Procedures.--

(1) In general.--

- (A) Decision made in hearing.--A decision made in a hearing conducted pursuant to subsection (f) or (k) shall be final, except that any party involved in such hearing may appeal such decision under the provisions of subsection (g) and paragraph (2) of this subsection.
  (B) Decision made at appeal.--A decision made under subsection (g) shall be final, except that any party may bring an action under paragraph (2) of this subsection.

(2) Right to bring civil action.--

- (A) In general.--Any party aggrieved by the findings and decision made under subsection (f) or (k) who does not have the right to an appeal under subsection (g), and any party aggrieved by the findings and decision under this subsection, shall have the right to bring a civil action with respect to the complaint presented pursuant to this section, which action may be brought in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy.

- (B) Additional requirements.--In any action brought under this paragraph, the court--
  - - (i) shall receive the records of the administrative proceedings;
      (ii) shall hear additional evidence at the request of a party; and
      
      (iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate.
      - (PWDW Note: Many Courts refuse to hear additional evidence that could have been furnished at the due process hearing. The Courts may hear new evidence or "after discovered" evidence. This means that the parties at the due process hearing should put all of their evidence into the record at that time, and not wait until the case ends up in State or Federal Court.)

(3) Jurisdiction of district courts; attorneys’ fees.--

- (A) In general.--The district courts of the United States shall have jurisdiction of actions brought under this section without regard to the amount in controversy.
  (B) Award of attorneys’ fees.--In any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to the parents of a child with a disability who is the prevailing party.
  
  (C) Determination of amount of attorneys’ fees.--Fees awarded under this paragraph shall be based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished. No bonus or multiplier may be used in calculating the fees awarded under this subsection.
  
  (D) Prohibition of attorneys’ fees and related costs for certain services.--
  - - (i) Attorneys’ fees may not be awarded and related costs may not be reimbursed in any action or proceeding under this section for services performed subsequent to the time of a written offer of settlement to a parent if--
      - (I) the offer is made within the time prescribed by Rule 68 of the Federal Rules of Civil Procedure or, in the case of an administrative proceeding, at any time more than ten days before the proceeding begins;
        (II) the offer is not accepted within 10 days; and
        
        (III) the court or administrative hearing officer finds that the relief finally obtained by the parents is not more favorable to the parents than the offer of settlement.
      (ii) Attorneys’ fees may not be awarded relating to any meeting of the IEP Team unless such meeting is convened as a result of an administrative proceeding or judicial action, or, at the discretion of the State, for a mediation described in subsection (e) that is conducted prior to the filing of a complaint under subsection (b)(6) or (k) of this section.
      - (PWDW Note: If the school district makes a written settlement offer more ten days before the due process hearing that is the same as or similar to the relief received through litigation, then the parents will lose all entitlement to attorneys fees. No attorney’s fees will be awarded for IEP meetings unless the IEP meeting is convened as the result of a due process hearing. School board counsel will assert that the meeting would have been held anyway, and was not the result of the pending litigation.)
  (E) Exception to prohibition on attorneys’ fees and related costs.--Notwithstanding subparagraph (D), an award of attorneys’ fees and related costs may be made to a parent who is the prevailing party and who was substantially justified in rejecting the settlement offer.
  
  (F) Reduction in amount of attorneys’ fees.--Except as provided in subparagraph (G), whenever the court finds that--
  - - (i) the parent, during the course of the action or proceeding, unreasonably protracted the final resolution of the controversy;
      (ii) 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 comparable skill, reputation, and experience;
      
      (iii) the time spent and legal services furnished were excessive considering the nature of the action or proceeding; or
      
      (iv) the attorney representing the parent did not provide to the school district the appropriate information in the due process complaint in accordance with subsection (b)(7); the court shall reduce, accordingly, the amount of the attorneys’ fees awarded under this section.
      - (PWDW Note: At the "off the record" working committee meetings before IDEA 97 was enacted, school districts complained that attorneys fees relating to special education due process hearings were excessive. School districts did not disclose that the fees were paid to their own counsel. When parents seek attorney’s fees, they should file a Freedom of Information Act request for information about all fees charged, incurred, paid, and time expended by the school district attorneys in their case. Fees charged to school boards by their own attorneys are usually much higher than fees incurred by parents.)
  (G) Exception to reduction in amount of attorneys’ fees.--The provisions of subparagraph (F) shall not apply in any action or proceeding if the court finds that the State or local educational agency unreasonably protracted the final resolution of the action or proceeding or there was a violation of this section.

(j) Maintenance of Current Educational Placement.--Except as provided in subsection (k)(7), during the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of such child, or, if applying for initial admission to a public school, shall, with the consent of the parents, be placed in the public school program until all such proceedings have been completed.

(PWDW Note: Pursuant to the U. S. Supreme Court Burlington and Carter cases this applies to the school district. Some Judges and Hearing Officers still believe that parents cannot change a child’s placement until proceedings are terminated. Parents may remove their children from damaging public school placements and seek reimbursement for the private school placement, subject to 20 U.S.C. § 1412. The proposed regulations state that the current educational placement after the final review decision is the placement ordered by the Reviewing Officer, even if the case is appealed to Court.)

(k) Placement in Alternative Educational Setting.--

(PWDW Note: This is the DISCIPLINE section. It was drafted as a result of multiple competing interests and balancing of school v. parent complaints. It is difficult to read and follow. You will have to go through it several times. There are two types of suspensions described below. Placement changes can be initiated solely by school personnel without seeking the authority of a Hearing Officer under (k)(1). For longer placement changes, the school must obtain an order from a Hearing Officer, pursuant to (k)(2). There are several items that the school must be able to prove that they have done in regard to the convening of IEP meetings, functional behavioral assessments and behavioral implementation plan. A child with a disability, regardless as to whether or not the disability was related to the adverse behavior, may not be denied educational services.)

(1) Authority of school personnel.--

- (A) School personnel under this section may order a change in the placement of a child with a disability--
  - - (i) to an appropriate interim alternative educational setting, another setting, or suspension, for not more than 10 school days (to the extent such alternatives would be applied to children without disabilities); and
      - (PWDW Note: Ten days suspension, or alternative setting for disciplinary reasons . . . )
      (ii) to an appropriate interim alternative educational setting for the same amount of time that a child without a disability would be subject to discipline, but for not more than 45 days if--
      - (I) the child carries a weapon to school or to a school function under the jurisdiction of a State or a local educational agency; or
        (II) the child knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or a school function under the jurisdiction of a State or local educational agency.
        
        (PWDW Note: If the child did not carry a weapon or illegal drugs to school, then the child may be suspended for up to ten days and or sent to an alternative setting, for ten days. The child cannot be suspended longer under this provision. For a longer placement in the interim alternative setting, the school must obtain an ORDER from an independent Hearing Officer and then can place the child in the interim alternative setting for up to 45 days. (See subsection (2) below.) If the child carried a weapon or illegal drugs to school, then the child can be suspended for ten days and placed, by school officials, without securing an Order from a Hearing Officer, into a 45 day alternative setting placement.)
  (B) Either before or not later than 10 days after taking a disciplinary action described in subparagraph (A)--
  - - (i) if the local educational agency did not conduct a functional behavioral assessment and implement a behavioral intervention plan for such child before the behavior that resulted in the suspension described in subparagraph (A), the agency shall convene an IEP meeting to develop an assessment plan to address that behavior; or
      (ii) if the child already has a behavioral intervention plan, the IEP Team shall review the plan and modify it, as necessary, to address the behavior.
      - (PWDW Note: If the school did not develop a functional behavioral assessment and implement a behavioral implementation plan before the incident, an IEP meeting must be convened to develop an assessment plan to address the behavior. If a plan is in place, an IEP meeting must be held to review and perhaps modify the plan to address the behavior.)

(2) Authority of hearing officer.--A hearing officer under this section may order a change in the placement of a child with a disability to an appropriate interim alternative educational setting for not more than 45 days if the hearing officer--

- (A) determines that the public agency has demonstrated by substantial evidence that maintaining the current placement of such child is substantially likely to result in injury to the child or to others;
  (B) considers the appropriateness of the child’s current placement;
  
  (C) considers whether the public agency has made reasonable efforts to minimize the risk of harm in the child’s current placement, including the use of supplementary aids and services; and
  
  (D) determines that the interim alternative educational setting meets the requirements of paragraph (3)(B).
  - (PWDW Note: Note that each clause is followed by a semicolon, with (C) having the word "and". This means that each element must be satisfied before a Hearing Officer can Order a 45 day setting. However, the setting must comply with (3)(B) below, i.e., the goals and objectives of the IEP must be maintained. Note the use of the phrase "supplementary aids and services" above, from 20 U.S.C. § 1402(29) in definitions. Did the school district provide the child with individualized tutoring as a supplementary aid and service?)

(3) Determination of setting.--

- (A) In general.--The alternative educational setting described in paragraph (1)(A)(ii) shall be determined by the IEP Team.
  (B) Additional requirements.--Any interim alternative educational setting in which a child is placed under paragraph (1) or (2) shall--
  - (i) be selected so as to enable the child to continue to participate in the general curriculum, although in another setting, and to continue to receive those services and modifications, including those described in the child’s current IEP, that will enable the child to meet the goals set out in that IEP; and
    (ii) include services and modifications designed to address the behavior described in paragraph (1) or paragraph (2) so that it does not recur.

(4) Manifestation determination review.--

- (A) In general.--If a disciplinary action is contemplated as described in paragraph (1) or paragraph (2) for a behavior of a child with a disability described in either of those paragraphs, or if a disciplinary action involving a change of placement for more than 10 days is contemplated for a child with a disability who has engaged in other behavior that violated any rule or code of conduct of the local educational agency that applies to all children--
  - - (i) not later than the date on which the decision to take that action is made, the parents shall be notified of that decision and of all procedural safeguards accorded under this section; and
      (ii) immediately, if possible, but in no case later than 10 school days after the date on which the decision to take that action is made, a review shall be conducted of the relationship between the child’s disability and the behavior subject to the disciplinary action.
  (B) Individuals to carry out review.--A review described in subparagraph (A) shall be conducted by the IEP Team and other qualified personnel.
  
  (C) Conduct of review.--In carrying out a review described in subparagraph (A), the IEP Team may determine that the behavior of the child was not a manifestation of such child’s disability only if the IEP Team--
  - - (i) first considers, in terms of the behavior subject to disciplinary action, all relevant information, including--
      - (I) evaluation and diagnostic results, including such results or other relevant information supplied by the parents of the child;
        (II) observations of the child; and
        
        (III) the child’s IEP and placement; and
      (ii) then determines that--
      - (I) in relationship to the behavior subject to disciplinary action, the child’s IEP and placement were appropriate and the special education services, supplementary aids and services, and behavior intervention strategies were provided consistent with the child’s IEP and placement;
        (II) the child’s disability did not impair the ability of the child to understand the impact and consequences of the behavior subject to disciplinary action; and
        
        (III) the child’s disability did not impair the ability of the child to control the behavior subject to disciplinary action.
        
        (PWDW Note: Several criteria must be met. There must be an observation of the child, the team must consider the evaluations submitted by the parent. Most important, the IEP Team must find that the child’s disability did not affect the child’s understanding of the impact and consequences of the behavior or the ability to control the behavior.)

(5) Determination that behavior was not manifestation of disability.--

- (A) In general.--If the result of the review described in paragraph (4) is a determination, consistent with paragraph (4)(C), that the behavior of the child with a disability was not a manifestation of the child’s disability, the relevant disciplinary procedures applicable to children without disabilities may be applied to the child in the same manner in which they would be applied to children without disabilities, except as provided in section 612(a)(1).
  - (PWDW Note: If the IEP team decides that the behavior is not a manifestation of the disability, then the child with a disability may be treated as a regular ed child, subject to 20 U.S.C. § 1412(a)(1). Remember: 1412(a)(1) requires that a "free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, inclusive, including children with disabilities who have been suspended or expelled from school." Even if a child with a disability is suspended or expelled for behaviors not related to the disability, the child must be provided a free, appropriate public education. This requirement has resulted in the proliferation of the "alternative educational settings.")
  (B) Additional requirement.--If the public agency initiates disciplinary procedures applicable to all children, the agency shall ensure that the special education and disciplinary records of the child with a disability are transmitted for consideration by the person or persons making the final determination regarding the disciplinary action.

(6) Parent appeal.--

- (A) In general.--
  - - (i) If the child’s parent disagrees with a determination that the child’s behavior was not a manifestation of the child’s disability or with any decision regarding placement, the parent may request a hearing.
      (ii) The State or local educational agency shall arrange for an expedited hearing in any case described in this subsection when requested by a parent.
  (B) Review of decision.--
  - - (i) In reviewing a decision with respect to the manifestation determination, the hearing officer shall determine whether the public agency has demonstrated that the child’s behavior was not a manifestation of such child’s disability consistent with the requirements of paragraph (4)(C).
      (ii) In reviewing a decision under paragraph (1)(A)(ii) to place the child in an interim alternative educational setting, the hearing officer shall apply the standards set out in paragraph (2).

(7) Placement during appeals.--

- (A) In general.--When a parent requests a hearing regarding a disciplinary action described in paragraph (1)(A)(ii) or paragraph (2) to challenge the interim alternative educational setting or the manifestation determination, the child shall remain in the interim alternative educational setting pending the decision of the hearing officer or until the expiration of the time period provided for in paragraph (1)(A)(ii) or paragraph (2), whichever occurs first, unless the parent and the State or local educational agency agree otherwise.
  - (PWDW Note: During an appeal, the child will remain in the interim alternative educational setting. This may not continue longer than either 10 or 45 days, depending upon whether drugs or guns were involved. Note the key words, interim and educational. It is an educational setting that is considered as an interim placement, not as the final permanent placement.)
  (B) Current placement.--If a child is placed in an interim alternative educational setting pursuant to paragraph (1)(A)(ii) or paragraph (2) and school personnel propose to change the child’s placement after expiration of the interim alternative placement, during the pendency of any proceeding to challenge the proposed change in placement, the child shall remain in the current placement (the child’s placement prior to the interim alternative educational setting), except as provided in subparagraph (C).
  - (PWDW Note: If the school district proposes to keep the child in the interim alternative educational setting after either the 10 day or 45 day period, the child shall return to the "child’s placement prior to the interim alternative educational setting" except under the circumstances listed below. Again, remember that paragraph 1, at the beginning, refers to the authority of school personnel, i.e., ten days if no drugs or guns, 45 days if guns or drugs, and paragraph 2 refers to the authority of the Hearing Officer.)
  (C) Expedited hearing.--
  - - (i) If school personnel maintain that it is dangerous for the child to be in the current placement (placement prior to removal to the interim alternative education setting) during the pendency of the due process proceedings, the local educational agency may request an expedited hearing.
      (ii) In determining whether the child may be placed in the alternative educational setting or in another appropriate placement ordered by the hearing officer, the hearing officer shall apply the standards set out in paragraph (2).
      - (PWDW Note: This area of law will probably increase the amount of litigation in special education.)

(8) Protections for children not yet eligible for special education and related services.--

- (A) In general.--A child who has not been determined to be eligible for special education and related services under this part and who has engaged in behavior that violated any rule or code of conduct of the local educational agency, including any behavior described in paragraph (1), may assert any of the protections provided for in this part if the local educational agency had knowledge (as determined in accordance with this paragraph) that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred.

- (B) Basis of knowledge.--A local educational agency shall be deemed to have knowledge that a child is a child with a disability if--
  - - (i) the parent of the child has expressed concern in writing (unless the parent is illiterate or has a disability that prevents compliance with the requirements contained in this clause) to personnel of the appropriate educational agency that the child is in need of special education and related services;
      (ii) the behavior or performance of the child demonstrates the need for such services;
      
      (iii) the parent of the child has requested an evaluation of the child pursuant to section 614; or
      
      (iv) the teacher of the child, or other personnel of the local educational agency, has expressed concern about the behavior or performance of the child to the director of special education of such agency or to other personnel of the agency.
      - (PWDW Note: Parents who are concerned that their child has a disability, must report these concerns in writing. If parents report verbally, for purposes of law and litigation, it was not said. If it is an important statement, then it is important enough to follow up a conversation, meeting, telephone call, with a letter restating the concerns. Doing less is naïve. Courts have little sympathy for people who know they have rights, fail to safeguard their rights, and then later complain that their rights were violated. The Courts believe that the party who complains of a violation of rights must be able to prove that they took all reasonable steps to protect themselves, and yet their rights were still violated.)
  (C) Conditions that apply if no basis of knowledge.--
  - - (i) In general.--If a local educational agency does not have knowledge that a child is a child with a disability (in accordance with subparagraph (B)) prior to taking disciplinary measures against the child, the child may be subjected to the same disciplinary measures as measures applied to children without disabilities who engaged in comparable behaviors consistent with clause (ii).
      (ii) Limitations.--If a request is made for an evaluation of a child during the time period in which the child is subjected to disciplinary measures under paragraph (1) or (2), the evaluation shall be conducted in an expedited manner. If the child is determined to be a child with a disability, taking into consideration information from the evaluation conducted by the agency and information provided by the parents, the agency shall provide special education and related services in accordance with the provisions of this part, except that, pending the results of the evaluation, the child shall remain in the educational placement determined by school authorities.

(9) Referral to and action by law enforcement and judicial authorities.--

- (A) Nothing in this part shall be construed to prohibit an agency from reporting a crime committed by a child with a disability to appropriate authorities or to prevent State law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability.
  (B) An agency reporting a crime committed by a child with a disability shall ensure that copies of the special education and disciplinary records of the child are transmitted for consideration by the appropriate authorities to whom it reports the crime.

(10) Definitions.--For purposes of this subsection, the following definitions apply:

- (A) Controlled substance.--The term ‘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)).
  - (PWDW Note: In other words, over the counter medications such aspirin, ibuprofen, Tums, are not controlled substances. Using "zero tolerance policies" and "Just Say No" anti drug policies, many school now label these over the counter medications as "drugs" and then expel children from school, branding them as drug violators. This cannot happen with the child with a disability who is receiving services under IDEA 97, but can happen with a Section 504 child.)
  (B) Illegal drug.--The term ‘illegal drug’--
  - - (i) means a controlled substance; but
      (ii) does not include such a substance that is legally possessed or used under the supervision of a licensed health-care professional or that is legally possessed or used under any other authority under that Act or under any other provision of Federal law.
      - (PWDW Note: In other words, if your child is in possession of Ritalin that was prescribed to the child, the child may not be expelled or suspended. However, if the child tries to sell or distribute drugs, then the child will face sanctions that are described in the beginning of this section under (k)(1) and (k)(2).)
  (C) Substantial evidence.--The term ‘substantial evidence’ means beyond a preponderance of the evidence.
  - (PWDW Note: Beyond a preponderance of the evidence is a new standard of evidence. Normally there are three levels of evidence that must be found to make a finding of fact by a Judge or Jury. Preponderance of the evidence, clear and convincing evidence, and proof beyond a reasonable doubt. This new phrase is more than a preponderance of the evidence but less than clear and convincing evidence.)
  (D) Weapon.--The term ‘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.
  - (PWDW Note: Under current "zero tolerance" policies, where the punishment will not fit the crime, schools routinely suspend and expel children for inadvertently bringing a pen knife to school, bringing a cracker jack box replica of a gun, and other absurd incidents. IDEA 97 says that a weapon means a weapon, not a toy.)

(l) Rule of Construction.--Nothing in this part shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this part, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this part.

(PWDW Note: If a parent or child with a disability has a case against a school district or employee for reasons, facts, and events other than under IDEA 97, they may file suit under that legal theory, but must initiate it through a due process hearing. The law is still developing in this area.)

(m) Transfer of Parental Rights at Age of Majority.--

(1) In general.--A State that receives amounts from a grant under this part may provide that, when a child with a disability reaches the age of majority under State law (except for a child with a disability who has been determined to be incompetent under State law)--

- (A) the public agency shall provide any notice required by this section to both the individual and the parents;
  (B) all other rights accorded to parents under this part transfer to the child;
  
  (C) the agency shall notify the individual and the parents of the transfer of rights; and
  
  (D) all rights accorded to parents under this part transfer to children who are incarcerated in an adult or juvenile Federal, State, or local correctional institution.

(2) Special rule.--If, under State law, a child with a disability who has reached the age of majority under State law, who has not been determined to be incompetent, but who is determined not to have the ability to provide informed consent with respec t to the educational program of the child, the State shall establish procedures for appointing the parent of the child, or if the parent is not available, another appropriate individual, to represent the educational interests of the child throughout the period of eligibility of the child under this part.

Peter W. D. Wright, Esq.
P. O. Box 1008
Deltaville, Virginia 23043-1008

804-776-7008