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Due Process Procedures refers to the rights and procedural safeguards afforded to parents and children or students with disabilities under state and federal law. Parents of children or students with disabilities must be provided the opportunity to be involved in all aspects of developing, planning, acquiring, and implementing special education and related services specific to their child. When the natural parent cannot be located, or a court has extinguished all parental rights, the district has an obligation to ensure an individual is appointed to represent the child or student in accordance with state and federal law.
In some cases, parents and districts are not in agreement regarding the identification, evaluation, educational placement or provision of free, appropriate public education (FAPE) to the child or student. Parties are encouraged to resolve disputes over the identification, evaluation, educational placement, manifestation determination, interim alternative educational placement, or the provision of FAPE to a child with a disability through conciliation, mediation, facilitated team meetings, or other alternative process. Among the alternative processes also available for resolving disputes are the special education complaint process and the due process hearing system.
Required Policies
The districts must have in effect policies that are consistent with State policies established under 34 C.F.R. 300.101 through 300.163 and 300.165 through 300.174. Among those required polices the districts must have a policy to ensure the confidentiality of personally identifiable information, in compliance with 300.610 through 300.626. These policies should be included in the district's comprehensive, documented TSES plan.
Items to Demonstrate Compliance:
Parent Rights Brochure explaining how to challenge a decision;
Due Process forms such as consent and prior written notice;
Information on how to file a state complaint;
Information about the state's mediation and facilitated conference services;
As defined in this section, every district must ensure the following:
children with a disability and their parents or guardians are guaranteed procedural safeguards and the right to participate in decisions involving identification, assessment including assistive technology assessment, and educational placement of children with a disability
MN Stat. 125A.08(a)(3)
Parents of pupils with disabilities have a right to be involved by the school district in the education decision-making process by participating or being afforded the opportunity to participate at each IEP meeting to develop, review, or revise the IEP. At the time of contact, the district shall inform the parents of their right to bring anyone of their choosing to accompany them to the meeting. The district shall inform the pupil's parents about the alternatives and methods of instruction as described in Minnesota Statutes, section 125A.05.
MN R. 3525.0700
Each district that is a member of the Area Special Education Cooperative (ASEC) provides representation on the ASEC Special Education Advisory Council. This council is made up of parents and the director and assistant directors of ASEC. The purpose of this group is to provide input on district/coop policy-making and provide recommendations on areas of concern. In addition, at least one parent of a child with a disability is a member of each county IEIC committee in which ASEC provides special education services.
Parent means a biological or adoptive parent of a child; a foster parent, unless State Law, regulations, or contractual obligations with a State or local entity prohibit a foster parent from acting as a parent; a guardian generally authorized to act as the child's parent, or authorized to make educational decisions for the child (but not the State if the child is a ward of the State); an individual acting in the place of a biological or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child lives, or an individual who is legally responsible for the child's welfare ; or a surrogate parent who has been appointed in accordance with 300.519 or section 639(a)(5) of the Act.
Except as provided in paragraph (b)(2) of this section, the biological or adoptive parent, when attempting to act as the parent under this part and when more than one party is qualified under paragraph (a) of this section to act as a parent, must be presumed to be the parent for purposes of this section unless the biological or adoptive parent does not have legal authority to make educational decisions for the child. If a judicial decree or order identifies a specific person or persons under paragraphs (a)(1) through (a)(4) of this section to act as the "parent" of a child or to make educational decisions on behalf of a child, then such person or person shall be determined to be the "parent" for purposes of this section.
34 C.F.R. 300.30(a)
Reasonable efforts shall be made to locate the parent. These may be made through documented phone calls, letters, certified letters with return receipts, and visits to the parent's last known address.
MN R. 3525.2435
A. When a Surrogate is Required
Each district must ensure that the rights of a child are protected when:
No parent (as defined in 300.30) can be identified;
The district, after reasonable efforts, cannot locate a parent;
The child is a ward of the Sate under the laws of that State,; or
The child is an unaccompanied homeless youth as defined in section 725(6) of the McKinney-Vento Homeless Assistance Act (42 U.S.C.1143a(6))
34 C.F.R. 300.519(a)
The district shall appoint the surrogate parent when:
the parent, guardian, or conservator is unknown or unavailable;
the pupil is a ward of the commissioner of human services; or
the parent requests in writing the appointment of a surrogate parent. The request may be revoked in writing at any time.
MN R. 3525.2440
B. Agency Decision
Parents of children with disabilities have a right to be involved by the school district in the education decision-making process by participating or being afforded the opportunity to examine all records relating to their child. Parents must also be afforded the opportunity to participate in meetings regarding the identification, evaluation, and education placement of their child. Parents are also key members of the team at each IEP/IFSP meeting to develop, review, or revise the IEP/IFSP. At the time of contact, the district shall inform the parents of their right to bring anyone of their choosing to accompany them to the meeting. The case manager must document all attempts to include parents at any of the meetings involving their child. The district shall inform the pupil's parents about the alternatives and methods of instruction available.
The district shall annually notify parents of students of their rights under the Family Education Rights and Privacy Act and the Code of Federal Regulation, title 34, part 99. This notice is generally provided to parents in the district's student handbook which is provided to student on a yearly basis.
Parents have the right to review and inspect any educational records on their child upon request. A record must be maintained of the individuals, other than the parents and authorized employees of the district) that access special education files. The Access to Education Records log must be stapled in each Learner File and the person viewing the records must sign their name, date of viewing and the purpose for accessing the record.
The interagency early intervention committee in each county within the Area Special Education Cooperative have a policy of obtaining written parental permission to enable a member of an interagency early intervention committee to allow another member access to information on a particular child.
Consent to Release Information
Districts do not need parental permission to release special education records to another Minnesota school district to which a student is or will attend. The parent or a student over the age of 18, must provide a signed and dated Consent to Release Private Data form prior to the district disclosing any personally identifiable information or records to other individuals or agencies. When staff is working with a student that is receiving services from other individuals or agencies (such as mental health or social services) it is best practice to obtain a Consent to Release Private Data from the parent so that that programs and services can be coordinated and communication facilitated.
It is necessary to differentiate between a guardian and surrogate parent. A surrogate parent is a person appointed by the providing district to intervene on behalf of a pupil, to help ensure that the rights of a pupil to a free and appropriate education are protected. (M. R. 3525.0200 Subp.20b)
A surrogate parent shall be appointed when the parent or guardian is unknown or unavailable, when the pupil is a ward of the state, or when a parent requests that a surrogate be appointed. When a parent is not available, reasonable efforts must be made to locate the parent. These efforts may be made through documented phone calls, letters, certified letters with return receipts, and visits to the parent's last known address.
The surrogate parent shall not be a person who receives public funds to educate or care for the child; however, a foster parent may serve as a surrogate parent if no conflict of interest exists. A person cannot be a surrogate parent to a child for whom the person provides early intervention services.
NOTE: Group home directors, caseworkers, or others who receive public funds to educate or care for the learner may not be assigned as surrogate parents. However, the district shall consult with the county social services office before appointing a surrogate parent when the learner is a ward of the Commissioner of Human Services. Foster parents may be appointed as a surrogate parent if no conflict of interest exists. |
Upon written appointment, the surrogate parent may represent the child in all matters relating to the identification, evaluation and educational placement of the child, and development and implementation of the child's IEP or IFSP. Districts must ensure that a person selected as a surrogate has knowledge and skills regarding state and federal requirements, district structure and procedures, an understanding of the nature of the pupil's disability and needs and an ability to effectively advocate for the pupil. The Director of Special Education has materials available for surrogate parent training.
A parent the right to withdraw consent for a behavior intervention plan at any time by notifying the principal, case manager, or special education director. The district must stop the procedure immediately. After consent is withdrawn and the procedure stopped, the school must send written acknowledgment to the parent and request a parental signature. If a parent's signature to withdraw consent cannot be obtained, the district must document its efforts to communicate and obtain a signature. Parents must be contacted within three school days to determine the need to convene the IEP team to consider a change in placement or program. (M.R. 3525.2900 Subp.5.E.)
The parents of a child with a disability have the right under this part to obtain an independent educational evaluation of the child, subject to paragraphs (b) through (e) of this section.
Each district must provide to parents, upon request for an independent educational evaluation, information about where an independent education evaluation may be obtained, and the agency criteria applicable for independent education evaluations.
34 C.F.R. 300.502(a)(1)-(2)
For the purposes of this subpart: Independent educational evaluation means an evaluation conducted by a qualified examiner who is not employed by the district for the education of the child in question; and Public expense means that the district either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to the parent.
34 C.F.R. 300.502(a)(3)
A parent has the right to an independent educational evaluation at district expense if the parent disagrees with an evaluation obtained by the district, subject to the conditions in paragraphs (b)(2) through (4) of this sections.
If a parent requests an independent education evaluation at public expense, the district must without unnecessary delay, either:
File a due process complaint to request to request a hearing to show that its evaluation is appropriate; or
Ensure that an independent educational evaluation is provided at public expense, unless the district demonstrates in a hearing pursuant to 300.507 through 300.513 that the evaluation obtained by the parent did not meet district criteria.
If the district files a due process complaint notice to request a hearing and the final decision is that the district's evaluation is appropriate, the parent still has the right to an independent educational evaluation, but not at public expense.
If a parent request an independent educational evaluation, the district may ask for the parent's reason why he or she objects to the public evaluation. However, the district may not require the parent to provide an explanation and may not unreasonably delay either providing the independent educational evaluation at public expense or filing a due process complaint tor request a hearing to defend the public evaluation.
34 C.F.R. 300.502(b)
Parents may request an IEE be completed at the district's expense however districts are not obligated to complete another evaluation at district expense if they feel the district's evaluation is adequate. When a parent requests an independent education evaluation (IEE), the case manager must immediately inform the Special Education Director or Assistant Director for guidance. The following recommendations should be considered when planning an IEE:
The IEE be limited to an education evaluation. Medical procedures and diagnosis are not educational determinations.
The IEE be limited to those areas which the parent/guardian has noted specific objection with the District’s evaluation results i.e. specific test scores (achievement and/or ability), OT, speech, observations, etc.
Be educational in focus such that it may yield relevant and meaningful educationally based data in order to best assist the Educational Team in planning for the student’s educational needs.
Be completed by qualified (licensed) educational personnel who may provide a measure of objectivity and who are not employed directly by the District conducting the evaluation.
Be conducted on District campus or at a neutral site if necessary and agreed to by District and parent(s)/guardian(s).
Be least intrusive and minimize disruption to the on-going educational programming.
Be least intrusive and minimize demands on parent/guardian/families.
The parent of a child birth through two with a disability has the right to be notified in writing each time the district proposes to, or refuses to, initiate or change the identification, evaluation, educational placement or the provision of a free appropriate public education (FAPE) to their child. They have a right to be included as a member of the individualized family service plan (IFSP) team that determines eligibility, develops the IFSP, and coordinates its implementation. The IFSP team defines the service needs, identifies the service providers, and who will pay for them. The school district is required to provide, pay for, and facilitate the special education and related services only. The other agencies are required to provide, pay for, and facilitate payment for non-educational services.
A parent has the right to resolve issues regarding the identification, evaluation, or placement of the child, or the provision of appropriate early intervention services to the child and the child's family through an impartial due process hearing. District's and parents are strongly encouraged to resolve disputes through mediation or other forms of alternative dispute resolution. Alternative dispute resolution shall not be used to deny or delay a parent or guardian's right to a due process hearing. (M.S. 120.1701 Subd.16(b)(5))
If the parent chooses mediation, all public agencies involved in the dispute shall participate in the mediation process. The parent and the public agencies must complete the mediation process within 20 calendar days of the date the commissioner receives a parent's written request for mediation. The resolution of the mediation is not binding on any party. (M.S. 120.1701 Subd. 17)
Parents may determine whether they, their child, or other family members will accept or decline any early intervention service and may decline a service after first accepting it, without jeopardizing other early intervention services. (M.S. 120.1701 Subd. 16)
Generally conciliation conferences serve better than formal hearings to promote communication between parents and school staff and to reach prompt, shared decisions about educational programs for children with disabilities. It is the policy of ASEC and their districts to encourage staff and administrators to maintain open lines of communication with parents to resolve issues of concern before the need for outside resolution.
Parents and guardians shall have an opportunity to meet with appropriate district staff in at least one conciliation conference, mediation, or other method of alternative dispute resolution that the parties agree to, if they object to any proposal of which they are notified. The conciliation process or other form of alternative dispute resolution shall not be used to deny or delay a parent’s or guardian’s right to a due process hearing. (M.S. 120.17 Subd. 3b)
The district is strongly encouraged to contact the Director or Assistant Director of Special Education prior to initiating any conciliation conferences. |
Refusal of Initial Assessment or Initial Placement
If the parent refuses to provide written consent for an initial assessment or placement within fourteen school days after receipt of the notice, the district shall offer the parent an opportunity to conciliate the matter. If the parent is willing to enter conciliation, the district shall arrange for a conference with the parent to review the parent's suggestions and concerns, and to conciliate the matter. The conference shall be held at a time and place mutually convenient to the parent and the school district representatives. If no response is received in cases of initial assessment or placement, the district shall offer a conciliation conference to be held within ten calendar days after the expiration of the 14 day period for parent response. In cases where the parent fails to attend the initial conciliation conference, the district may choose to offer to schedule additional conciliation conferences.
Request to Conciliate
The conciliation process must not be used to deny or delay a parent's right to a due process hearing. If the parent refuses efforts by the district to conciliate the dispute with the school district, the district's obligation to offer an opportunity for conciliation is satisfied.
When the parent refuses efforts by the district to conciliate the dispute and notifies the district of the intent to go to an impartial due process hearing, the district must provide the parent with the procedures and time in which to request the hearing, and the identification of the district employee to whom the written request form or other written request for a hearing must be mailed, and to whom questions and legal documents or requests about the hearing may be directed. In the case of ASEC schools, this person would be the Director of Special Education.
NOTE: The Office of Civil Rights (OCR) has clarified that the district is not required to take a parent to a due process hearing when the parent refuses to give consent for an initial assessment or initial placement. |
The building principal and the Director or Assistant Director of Special Education must immediately be notified whenever a parent objects to any purposed action. |
After the parents and district agree the final conciliation conference was held, the district shall serve the parent with a written memorandum within seven days that informs the parent:
Of the district’s proposed action following the conference;
That if they continue to object to the proposed action, they have the right to object to the proposed action at an impartial due process hearing and the procedure and time in which to do so, including a request form on which the parent may request the hearing, and the identification of the district employee to whom the written request form or other written request for hearing should be mailed, and to whom questions and legal documents or request relating to the hearing may be directed;
That if they do not request a hearing on the written request form or otherwise in writing within seven days after receipt of the notice, the district will proceed with the proposed action; unless the proposed action is an initial action. In cases of proposed initial actions, when a parent continues to refuse to provide written permission, the district shall schedule a hearing within seven days after the expiration of the seven days allowed for parent response. the district will proceed with the proposed action within seven calendar after the receipt of the notice unless the proposed action is an initial action; and
That if a hearing is scheduled, the district will send a notice describing the rights and procedures available to parents relative to a hearing. MR 3525.3700, subp 2
The State intends to encourage parties to resolve disputes through mediation or other form of alternative dispute resolution. Alternative dispute resolution must not be used to deny or delay a parent's or guardian's right to a due process hearing.
When informal meetings and/or a formal conciliation conference have failed to resolve the disputed issue, the parent or district may request mediation. Mediation is a process used to resolve disputes between two or more parties and can be used for resolving disputes between parents and one or more agencies, or between agencies themselves. Mediation is conducted by a specially trained neutral third party. Although the mediator has no decision-making authority, the mediator acts as a facilitator to help reach a settlement all parties can agree to.
Participation in mediation is voluntary, non-binding and either party may request a due process hearing at any time. However, it is the policy of the Area Special Education Cooperative to offer parents the opportunity to mediate special education disputes prior to initiation of a due process hearing.
When the parent agrees to mediate a dispute, the building principal shall contact the Director of Special Education who will contact the Minnesota Special Education Mediation Services (MNSEMS), or the parents may contact MNSEMS directly. MNSEMS will then contact the parent and district to explain the mediation process and arrange the time and place for the mediation conference.
Parents, guardians, and the district shall have an opportunity to obtain an impartial due process hearing initiated and conducted by and in the school district responsible for assuring that an appropriate program is provided, if the parent or guardian continues to object to:
A proposed formal educational assessment or proposed denial of a formal educational assessment of their child;
The proposed placement of their child in, or transfer of their child to a special education program;
The proposed denial of placement of their child in a special education program or transfer of their child from a special education program;
The proposed provision or addition of special education services for their child; or
The proposed denial or removal of special education services for their child.
A due process hearing shall be held whenever a parent or district requests a hearing.
Upon receipt of the parent’s request for a hearing, the case manager will immediately contact the building principal and the Director of Special Education. The district, under the direction of the Director, must serve the parent with written notice of rights and procedures relative to the hearing that informs the parent:
That the hearing shall take place before an impartial hearing officer mutually agreed to by the school board and the parent. If the parties have not agreed upon a hearing officer, and the board has not requested that a haring officer be appointed by the commissioner within four business days after the receipt of the request, the commissioner shall appoint a hearing officer upon the request of either party.
That they will receive notice of the time, date, and place of the hearing at least ten days in advance of the hearing which will be held within 30 days after the written request.
Of their right to receive a list of persons who will testify on behalf of the district concerning the proposed action within five days of the date the district receives their written request for the list of persons testifying.
Of their responsibility, within five days after written request by the school district, to provide to the district a list of person who will testify on the parent's behalf concerning the proposed action.
Of their right, at least five days before the hearing, to receive from the district, a brief resume of additional material allegations referring to conduct, situations, or conditions which are discovered to be relevant and which were not contained in the original notice or memorandum; the hearing officer may prohibit evidence not disclosed five days before a hearing.
Of the availability of mediation that is voluntary on the part of the parties, is conducted by a qualified and impartial mediator trained in effective mediation techniques and that may not be used to deny or delay a parent's right to a due process hearing.
That at the hearing the burden of proof is on the district to show that the proposed action is justified on the basis of the person's educational needs or the person's current educational performance, or presenting disabilities taking into account the presumption that placement in a regular public school class with special education services is preferable to removal from the regular classroom.
That the hearing officer will make a written decision based only on evidence received and introduced into the record at the hearing not more than 45 days from the receipt of the request for the hearing and that the proposed action will be upheld only upon showing by the school district by a preponderance of the evidence. A proposed action that would result in the pupil being removed from regular education program may be sustained only when, and to the extent the nature or severity of the disability is such that a regular education program would not be satisfactory and the pupil would be better served in an alternative program. Consideration of alternative educational programs must also be given.
The decision of the hearing officer is binding on all parties unless appealed to the commissioner by the parent or the district and is effective upon issuance. Any party aggrieved by the findings and decisions made by a hearing review officer shall have the right to bring a civil action regarding the complaint and decision in any state court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy.
That unless the district and parents agree otherwise, the pupil shall not be denied initial admission to school and the student's education program shall not be changed in conformance with United State Code, title 20, section1415 (i).
Districts are strongly encouraged to contact the director of special education immediately when any matter of conciliation, mediation or due process hearing arise. The Director will serve as primary contact between the MN Department of Children Families and Learning and the district regarding the due process hearing. Districts need to be represented by legal counsel throughout the due process hearing. |