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SPED: IV - Procedural Safeguards: Due Process Procedures for Parent(s) and Students (IDEA Subpart E)

IV. PROCEDURAL SAFEGUARDS: DUE PROCESS PROCEDURES FOR PARENT(S) AND STUDENTS (IDEA SUBPART E)

IV.A. PARENTAL OPPORTUNITY TO EXAMINE RECORDS AND PARTICIPATE IN MEETINGS (34 CFR § 300.501; Rules IV.A.)

Opportunity to examine records.
1. The parent(s) of a student with a disability or adult student must be afforded, in accordance with the Rules, an opportunity to inspect and review all education records with respect to the identification, evaluation, and educational placement of the student and the provision of a FAPE to the student.
Parent participation in meetings.
1. The parent(s) of a student with a disability or adult student must be afforded an opportunity to participate in meetings with respect to the identification, evaluation, and educational placement of the student and the provision of a FAPE to the student.
2. WSD must provide notice, consistent with the Rules, to ensure parents of students with disabilities or adult students have the opportunity to participate in meetings.
3. A meeting does not include informal or unscheduled conversations involving WSD personnel and conversations on issues such as teaching methodology, lesson plans, or coordination of service provision. A meeting also does not include preparatory activities that WSD personnel engage in to develop a proposal or a response to a parent or adult student proposal that will be discussed at a later meeting.
Parent involvement in placement decisions.
1. WSD must ensure that a parent of each student with a disability or adult student is a member of any group that makes decisions on the educational placement of the parent's student (34 CFR § 300.327), including notifying the parent(s) or adult student of the meeting early enough to ensure that they will have an opportunity to attend and scheduling the meeting at a mutually agreed-on time and place (34 CFR § 300.322(a)).
2. The notice of meeting must indicate the purpose(s), time, and location of the meeting, who will be in attendance, and inform the parents or adult student of their right to bring other individuals who have knowledge or special expertise about the student (34 CFR § 300.322(b)).
3. If neither parent or the adult student can participate in a meeting in which a decision is to be made relating to the educational placement of the student, WSD must use other methods to ensure their participation, including individual or conference telephone calls or video conferencing.
4. A placement decision may be made by a group without the involvement of a parent or adult student if WSD is unable to obtain the parent’s(s’) or adult student’s participation in the decision. In this case, the LEA must have a record of its attempt to ensure their involvement.

IV.B. INDEPENDENT EDUCATIONAL EVALUATION (34 CFR § 300.502; Rules IV.B.)

Definitions.
1. Independent educational evaluation (IEE) means an evaluation conducted by a qualified examiner who is not employed by the LEA responsible for the education of the student in question.
2. Public expense means that the LEA either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to the parent or adult student.
WSD has established and implemented the following policies and procedures related to independent educational evaluation that meet the requirements of Part B of the IDEA and the Rules.
The following requirements must be addressed:
1. The parent(s) of a student with a disability or adult student have the right to obtain an IEE of the student at public expense if they disagree with an evaluation obtained by WSD.
2. WSD must provide to the parent(s) or adult student, upon request for an IEE, information about where an IEE may be obtained and WSD criteria applicable for IEEs.
3. If the parent(s) or adult student requests an IEE at public expense, WSD must, without unnecessary delay, either file a due process complaint to request a hearing to show that its evaluation is appropriate, or ensure an IEE is provided at public expense, unless WSD demonstrates in a hearing that the evaluation obtained by the parent(s) or adult student did not meet WSD criteria. If WSD files a due process complaint notice to request a hearing and the final decision is that WSD’s evaluation is appropriate, the parent(s) or adult student still has the right to an IEE, but not at public expense. If the parent(s) or adult student requests an IEE, WSD may ask for the parent’s(s’) or adult student’s reason why they object to the public evaluation. However, the explanation by the parent(s) or adult student may not be required and WSD may not unreasonably delay either providing the IEE at public expense or requesting a due process hearing to defend the public evaluation.
4. The parent(s) or adult student is entitled to only one IEE at public expense each time WSD conducts an evaluation with which the parent(s) or adult student disagrees.
5. If the parent(s) or adult student obtains an IEE at public expense or shares with WSD an evaluation obtained at private expense, the results of the evaluation must be considered by WSD, if it meets WSD criteria, in any decision made with respect to the provision of a FAPE to the student, and may be presented by any party as evidence at a hearing on a due process complaint regarding that student.
6. If a hearing officer requests an IEE as part of a hearing on a due process complaint, the cost of the evaluation must be at public expense.
7. If an IEE is at public expense, the criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, must be the same as the criteria that WSD uses when it initiates an evaluation, to the extent those criteria are consistent with the parent's(s’) or adult student’s right to an IEE.
8. Except for the criteria described above, WSD may not impose additional conditions or timelines related to obtaining an IEE at public expense.
An IEE conducted at WSD’s expense becomes the property of WSD, in its entirety.

IV.C. PRIOR WRITTEN NOTICE (34 CFR § 300.503; Rules IV.C.)

Prior written notice must be given to the parents of a student with a disability or adult student a reasonable time before WSD:
1. Proposes to initiate or change the identification, evaluation, or educational placement of the student or the provision of a FAPE to the student; or
2. Refuses to initiate or change the identification, evaluation, or educational placement of the student or the provision of a FAPE to the student.
The notice required must include:
1. A description of the action proposed or refused by WSD;
2. An explanation of why WSD proposes or refuses to take the action;
3. A description of each evaluation procedure, assessment, record, or report WSD used as a basis for the proposed or refused action;
4. A statement that the parent(s) of a student with a disability or adult student have protection under the procedural safeguards of Part B of the IDEA 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;
5. Sources for the parent(s) or adult student to contact to obtain assistance in understanding the provisions of Part B of the IDEA;
6. A description of other options the IEP Team considered and the reasons why those options were rejected; and
7. A description of other factors relevant to WSD's proposal or refusal.
The notice must be:
1. Written in language understandable to the general public; and
2. Provided in the native language of the parent(s) or adult student or other mode of communication used by the parent(s) or adult student, unless it is clearly not feasible to do so.
  1. If the native language or other mode of communication of the parent(s) or adult student is not a written language, WSD must take steps to ensure:
    1. The notice is translated orally or by other means to the parent(s) or adult student in his/her native language or other mode of communication;
    2. The parent(s) or adult student understands the content of the notice; and
    3. There is written evidence that the requirements have been met.

IV.D. PROCEDURAL SAFEGUARDS NOTICE (34 CFR § 300.504; Rules IV.D.)

A copy of the procedural safeguards available to the parent(s) of a student with a disability or adult student must be given to the parent(s) or adult student only one time a year, except that a copy also must be given to the parent(s) or adult student:
1. Upon initial referral or parental or adult student request for evaluation;
2. Upon receipt of the first State complaint or a due process complaint in that school year; and
3. Upon request by the parent(s) or adult student.
An LEA may place a current copy of the procedural safeguards notice on its website if a website exists.
The procedural safeguards notice must include a full explanation of all the procedural safeguards relating to:
1. Independent educational evaluations;
2. Prior written notice;
3. Parental or adult student consent;
4. Access to educational records;
5. The opportunity to present and resolve complaints through the State IEP facilitation, mediation, due process complaint or State complaint procedures, including the time period in which to file a complaint;
6. The opportunity for WSD to resolve the complaint, and the difference between the due process complaint and the State complaint procedures, including the jurisdiction of each procedure, what issues may be raised, filing and decisional timelines, and relevant procedures;
7. The availability of IEP facilitation and mediation;
8. The student's placement during pendency of hearings on due process complaints;
9. Procedures for students who are subject to placement in an interim alternative educational setting (IAES);
10. Requirements for unilateral placement by parent(s) of students or by adult students in private schools at public expense;
11. Hearings on due process complaints, including requirements for disclosure of evaluation results and recommendations;
12. State-level appeals;
13. Civil actions, including the time period in which to file those actions; and
14. Attorneys' fees.
The notice required must be in language understandable to the parent(s) or adult student.
A parent of a student with a disability or adult student may elect to receive notices by an electronic mail communication, if WSD makes that option available (34 CFR § 300.505).
1. Dispute resolution options remain available.

IV.E. STATE COMPLAINT PROCEDURES (34 CFR § 300.151–153; UCA 53E-7-208; Rules IV.E.)

WSD follows all requirements found in Rules IV.E. regarding State Complaint Procedures.

IV.F. MEDIATION (34 CFR § 300.506; Rules IV.F.)

WSD follows all requirements found in Rules IV.F. regarding Mediation.

IV.G. FILING A DUE PROCESS COMPLAINT (34 CFR § 300.507; UCA 53E-7-208; Rules IV.G)

WSD follows all requirements found in Rules IV.G. regarding filing a due process complaint.

IV.H. DUE PROCESS COMPLAINT (34 CFR § 300.508; Rules IV.H.)

WSD follows all requirements found in Rules IV.H. regarding due process complaints.

IV.I. MODEL FORMS (34 CFR § 300.509; Rules IV.I.)

The USBE staff have developed model forms to assist parent(s) or adult students in filing a State complaint, a due process hearing complaint, and requesting mediation. These forms are available on the USBE Special Education Services webpage. Parties are not required to use the State’s model forms. Parents or adult students, public agencies, and other parties may use the appropriate State model form or another form or other document, so long as the form or document that is used meets, as appropriate, the content requirements for filing a due process complaint or the requirements for filing a State complaint.

IV.J. RESOLUTION PROCESS (34 CFR § 300.510; Rules IV.J.)

WSD follows all requirements found in Rules IV.J. regarding the resolution process.

IV.K. IMPARTIAL DUE PROCESS HEARING (34 CFR § 300.511; Rules IV.K.)

WSD follows all requirements found in Rules IV.K. regarding impartial due process hearings.

IV.L. HEARING RIGHTS (34 CFR § 300.512; Rules IV.L.)

WSD follows all requirements found in Rules IV.L. regarding hearing rights.

IV.M. HEARING DECISIONS (34 CFR § 300.513; Rules IV.M.)

WSD follows all requirements found in Rules IV.M. regarding hearing decisions.

IV.N. FINALITY OF DECISION (34 CFR § 300.514; Rules IV.N.)

WSD acknowledges that a decision made in a hearing conducted is final, unless a party to the hearing appeals the decision to a civil action.

IV.O. STATE ENFORCEMENT MECHANISMS (34 CFR § 300.537; Rules IV.O.)

WSD acknowledges the state enforcement mechanisms found in Rules IV.O.

IV.P. TIMELINES AND CONVENIENCE OF HEARINGS (34 CFR § 300.515; UBSE-SER IV.P.)

WSD follows all requirements found in Rules IV.P. regarding timelines and convenience of hearings.

IV.Q. CIVIL ACTION (34 CFR § 300.516; Rules IV.Q.)

WSD follows all requirements found in Rules IV.Q. regarding civil action.

IV.R. ATTORNEYS’ FEES (34 CFR § 300.517; UCA 53E-7-208(4)(b); Rules IV.R.)

WSD follows all requirements found in Rules IV.R. regarding attorneys’ fees.

IV.S. STUDENT’S STATUS DURING PROCEEDINGS (34 CFR § 300.518; Rules IV.S.)

WSD follows all requirements found in Rules IV.S. regarding student’s status during proceedings.

IV.T. SURROGATE PARENTS (34 CFR § 300.519; Rules IV.T.)

WSD ensures the rights of a student are protected when:
1. No parent can be identified for a student under the age of majority;
2. WSD, after reasonable efforts, cannot locate a parent for a student under the age of majority;
3. The student is a ward of the state under the laws of that state; or
4. The student is an unaccompanied homeless youth under the age of majority.
The duties of WSD include the assignment of an individual to act as a surrogate for the parent(s) for a student under the age of majority. This must include a method for determining whether a student under the age of majority needs a surrogate parent and for assigning a surrogate parent to the student.
In the case of a student who is a ward of the State, the surrogate parent alternatively may be appointed by the judge overseeing the student's case, provided that the surrogate meets the requirements.
WSD may select a surrogate parent in any way permitted under State law.
WSD must ensure that a person selected as a surrogate parent:
1. Is not an employee of the USBE, WSD, or any other agency that is involved in the education or care of the student;
2. Has no personal or professional interest that conflicts with the interest of the student he/she represents; and
3. Has knowledge and skills that ensure adequate representation of the student.
A person otherwise qualified to be a surrogate parent is not an employee of WSD solely because the person is paid by WSD to serve as a surrogate parent.
In the case of a student who is an unaccompanied homeless youth, appropriate staff of emergency shelters, transitional shelters, independent living programs, and street outreach programs may be appointed as temporary surrogates until a surrogate can be appointed who meets all of the requirements.
The surrogate parent may represent the student in all matters relating to the identification, evaluation, and educational placement of the student, and the provision of a FAPE to the student.
The USBE and WSD staff must make reasonable efforts to ensure the assignment of a surrogate parent not more than 30 calendar days after WSD determines the student needs a surrogate.

IV.U. TRANSFER OF PARENTAL RIGHTS AT AGE OF MAJORITY (34 CFR § 300.520; Rules IV.U.)

When a student with a disability reaches the age of majority under State law (i.e., age 18) that applies to all students, except for a student with a disability who has been determined to be incompetent under State law, or the student with a disability marries or becomes emancipated:
1. WSD must provide any notice required by Part B of the IDEA to both the individual and the parent(s); and
2. All other rights accorded to parents under Part B of the IDEA transfer to the student;
3. All rights accorded to parents under Part B of the IDEA transfer to students who are incarcerated in an adult or juvenile State or local correctional institution; and
4. Whenever a state transfers rights, WSD must notify the individual and the parent(s) of the transfer of rights within a reasonable time frame.

IV.V. CONFIDENTIALITY (34 CFR § 300.610; R277-487; Rules IV.V.)

WSD takes appropriate steps to ensure the protection of the confidentiality of any personally identifiable data, information, and records collected or maintained by the LEAs pursuant to Part B of the IDEA and R277-487.

Definitions (34 CFR § 300.611).

As used in these procedural safeguards:

1. Destruction means physical destruction or removal of personal identifiers from information so that the information is no longer personally identifiable.
2. Education records means the type of records covered under the definition of “education records” in 34 CFR § 99, implementing regulations for the Family Educational Rights and Privacy Act of 1974, 20 USC § 1232g (FERPA).
3. Participating agency means any agency or institution that collects, maintains, or uses personally identifiable information (PII), or from which information is obtained, under Part B of the IDEA.

Notice to parent(s) or adult student (34 CFR § 300.612).
1. WSD must give notice that is adequate to fully inform parent(s) or adult students, including:
  1. A description of the extent that the notice is given in the native languages of the various population groups in the State;
  2. A description of the students on whom PII is maintained, the types of information sought, the methods WSD intends to use in gathering the information (including the sources from whom information is gathered), and the uses to be made of the information;
  3. A summary of the policies and procedures WSD must follow regarding storage, disclosure to third parties, retention, and destruction of PII; and
  4. A description of all of the rights of parents and students regarding this information, including the rights under FERPA.
Before any major identification, location, or evaluation activity, the notice must be published or announced in newspapers or other media, or both, with circulation adequate to notify parents or adult students throughout WSD of the activity.
Access rights (34 CFR § 300.613).
1. WSD must permit parents or adult students to inspect and review any education records relating to their student or themselves that are collected, maintained, or used by the LEA. WSD must comply with a request without unnecessary delay and before any meeting regarding an IEP, or any hearing or resolution session, and in no case more than 45 calendar days after the request has been made.
2. The right to inspect and review education records under this section includes:
  1. The right to a response from WSD to reasonable requests for explanations and interpretations of the records;
  2. The right to request that WSD provide copies of the records containing the information if failure to provide those copies would effectively prevent the parent or adult student from exercising the right to inspect and review the records; and
  3. The right to have a representative of the parent or adult student inspect and review the records.
3. WSD may presume that the parent(s) or adult student has authority to inspect and review records relating to his/her student unless WSD has been advised that the parent(s) does not have the authority under applicable State law governing such matters as guardianship, separation, and divorce.
Record of access (34 CFR § 300.614).

WSD must keep a record of parties obtaining access to education records collected, maintained, or used under Part B of the IDEA and the Rules (except access by parents or adult students and authorized employees of the LEA), including the name of the party, the date access was given, and the purpose for which the party is authorized to use the records.

Records on more than one student (34 CFR § 300.615).

If any education record includes information on more than one student, the parent(s) of those students or the adult students have the right to inspect and review only the information relating to their student or themselves or to be informed of that specific information.

List of types and locations of information (34 CFR § 300.616).

On request, WSD must provide parents or adult students with a list of the types and locations of education records collected, maintained, or used by the LEA.

Fees (34 CFR § 300.617).
1. WSD may charge a fee for copies of records that are made for parent(s) or adult students under Part B of the IDEA if the fee does not effectively prevent the parent(s) or adult students from exercising their right to inspect and review those records.
2. The USBE staff and an LEA may not charge a fee to search for or to retrieve information under Part B of the IDEA.
Amendment of records at parent’s(s’) request (34 CFR § 300.618).
1. A parent or adult student who believes that information in the education records collected, maintained, or used under Part B of the IDEA or Rules is inaccurate or misleading or violates the privacy or other rights of the student may request WSD to amend the information.
2. WSD must decide whether to amend the information in accordance with the request within a reasonable period of time of receipt of the request.
3. If WSD decides to refuse to amend the information in accordance with the request, it must inform the parent or adult student of the refusal and advise the parent(s) or adult student of the right to a hearing on the matter.
Opportunity for a hearing (34 CFR § 300.619).

WSD must, on request, provide an opportunity for a hearing to challenge information in education records to ensure that it is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of the student. This hearing is not an IDEA due process complaint/hearing.

Result of hearing (34 CFR § 300.620).
1. If, as a result of the hearing, WSD decides that the information is inaccurate, misleading or otherwise in violation of the privacy or other rights of the student, it must amend the information accordingly and so inform the parent(s) or adult student in writing.
2. If, as a result of the hearing, WSD decides that the information is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of the student, it must inform the parent(s) or adult student of the right to place in the records it maintains on the student a statement commenting on the information or setting forth any reasons for disagreeing with the decision of the LEA.
3. Any explanation placed in the records of the student under this section must:
  1. Be maintained by the LEA as part of the records of the student as long as the record or contested portion is maintained by the LEA; and
  2. If the records of the student or the contested portion are disclosed by the LEA to any party, the explanation must also be disclosed to the party.
Hearing procedures (34 CFR § 300.621).

A hearing that challenges education records must be conducted according to the procedures under 34 CFR § 99.22 as described below. At a minimum, WSD’s hearing procedures must adhere to the following requirements:

1. The hearing shall be held within a reasonable period of time after the LEA receives the request, and the parent(s) of the student or adult student shall be given notice of the date, place, and time reasonably in advance of the hearing.
2. The hearing may be conducted by any party, including an official of the LEA, who does not have a direct interest in the outcome of the hearing.
3. The parent(s) of the student or adult student shall be afforded a full and fair opportunity to present evidence relevant to the issues raised and may be assisted or be represented by individuals of his/her choice at his/her own expense, including an attorney.
4. The LEA shall make its decision in writing within a reasonable period of time after the conclusion of the hearing.
5. The decision of the LEA shall be based solely upon the evidence presented at the hearing and shall include a summary of the evidence and the reasons for the decision.

Consent (34 CFR § 300.622).
1. Except as to disclosures addressed in referral to and action by law enforcement and judicial authorities, for which parental consent is not required by 34 CFR § 99, parental or adult student consent must be obtained before PII is:
  1. Disclosed to anyone other than officials of participating agencies collecting or using the information under Part B of the IDEA or the Rules, or
  2. Used for any purpose other than meeting a requirement of Part B of the IDEA or the Rules.
2. WSD may not release information from education records to participating agencies without parental or adult student consent unless authorized to do so by 34 CFR §§ 99.31 and 99.34 (FERPA):
  1. Regulation 34 CFR § 99.31 allows an LEA to disclose PII from the education records of a student without the written consent of the parent(s) of the student or adult student, if the disclosure is:
    1. To other school officials, including teachers within the LEA who have been determined by the LEA to have legitimate educational interests.
    2. To officials of another school or school site in which the student seeks or intends to enroll, subject to the requirements set forth in 34 CFR § 99.34 below.
  2. Regulation 34 CFR § 99.34 requires that an LEA transferring the education records of a student pursuant to 34 CFR § 99.34 above shall make a reasonable attempt to notify the parent of the student or adult student of the transfer of records at the last known address of the parent or adult student, except that the LEA does not have to provide any further notice of the transfer of records when:
    1. The transfer is initiated by the parent(s) or adult student at the sending LEA.
    2. WSD includes in its annual notice of procedural safeguards, that it is the policy of the LEA to forward education records on request to a school in which a student seeks or intends to enroll.
    3. WSD transferring the records must keep a copy of the records for three years after the transfer.
3. WSD, upon receiving PII from another educational agency or institution, may make further disclosure of the information on behalf of the LEA without the prior written consent of the parent(s) or adult student if the conditions of 34 CFR §§ 99.31 and 99.34 noted above are met, and if the educational agency informs the party to whom disclosure is made of these requirements.
4. If the parent(s) or adult student refuses consent for the release of PII to a third party, then that party may proceed with statutory procedures in an effort to obtain the desired information.

Note: As authorized in 34 CFR § 99.31 (FERPA), WSD includes in the annual procedural safeguards notice that it is their policy to forward educational records of a student with disabilities without parental or adult student consent or notice to officials of another school or school district in which a student seeks or intends to enroll.

Safeguards (34 CFR § 300.623).
1. WSD must protect the confidentiality of PII at collection, storage, disclosure, and destruction stages.
2. One official at each LEA must assume responsibility for ensuring the confidentiality of any PII.
3. All persons at WSD collecting or using PII must receive training or instruction regarding the State’s policies and procedures in Rules IV.V. and 34 CFR § 99.
4. WSD must maintain, for public inspection, a current listing of the names and positions of those employees within the LEA who may have access to PII on students with disabilities.
Destruction of information (34 CFR § 300.624).
1. WSD must inform parents or adult student when PII collected, maintained, or used under Part B of the IDEA and Rules is no longer needed to provide educational services to the student.
2. The information no longer needed must be destroyed at the request of the parent(s) or adult student. However, a permanent record of a student’s name, address, phone number, his/her grades, attendance record, classes attended, grade level completed, and year completed may be maintained without time limitation.
3. Each student’s records may be considered “no longer needed to provide educational services” and may be destroyed three years after the student graduates or three years after the student turns 22 under IDEA. Medicaid requires that records be maintained for at least five years after the provision of services.
Students’ rights (34 CFR § 300.625).
1. The rights of privacy afforded to parent(s) are transferred to the student who reaches the age of 18, providing the student has not been declared incompetent by a court order or the student has married or become emancipated.
2. Under the regulations for FERPA at 34 CFR § 99.5(a), the rights of parent(s) regarding education records are transferred to the student at age 18, providing the student has not been declared incompetent by a court order or the student has married or become emancipated.
3. Because the rights accorded to parents under Part B of the IDEA are transferred to a student who reaches the age of 18, providing the student has not been declared incompetent by a court order or the student has married or become emancipated, the rights regarding educational records must also be transferred to the student. However, WSD must provide any notice required under Section 615 of Part B of the IDEA to the student and the parent(s).
Enforcement (34 CFR § 300.626).

The confidentiality requirements of Part B of the IDEA are reviewed and approved as part of WSD eligibility process.

U.S. Department of Education use of PII (34 CFR § 300.627).

If the U.S. Department of Education or its authorized representatives collect any PII regarding students with disabilities that is not subject to the Privacy Act of 1974, 5 USC § 552a, the Secretary of Education (Secretary hereafter) applies the applicable Federal statute, and the regulations implementing those provisions in 34 CFR § 5b.

Created on 18 November 2022.
Last updated on 18 November 2022.
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