Ec Parent Handbook

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PUBLIC SCHOOLS OF NORTH CAROLINA

State Board of Education | Department of Public Instruction :: Exceptional Children Division

PROCEDURAL SAFEGUARDS:HANDBOOK ON PARENTS RIGHTS

SEPTEMBER 2008Revised April 2009


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STATE BOARD OF EDUCATION

NC DEPARTMENT OF PUBLIC INSTRUCTIONJune St. Clair Atkinson, Ed.D., State Superintendent

301 N. Wilmington Street : : Raleigh, North Carolina 27601-2825

In compliance with federal law, NC Public Schools administers all state-operated educational programs, employment activities and

admissions without discrimination because of race, religion, national or ethnic origin, color, age, military service, disability, or gender,

except where exemption is appropriate and allowed by law.

Inquiries or complaints regarding discrimination issues should be directed to:

Dr. Rebecca Garland, Chief Academic Officer :: Academic Services and Instructional Support

6368 Mail Service Center, Raleigh, NC 27699-6368 :: Telephone: (919) 807-3200 :: Fax: (919) 807-4065

Visit us on the Web :: www.ncpublicschools.org

WILLIAM C. HARRISONChairman :: Fayetteville

WAYNE MCDEVITT

Vice Chair :: Asheville

WALTER DALTON

Lieutenant Governor :: Rutherfordton

JANET COWELL

State Treasurer :: Raleigh

KATHY A. TAFTGreenville

RAY DURHAM

Jacksonville

KEVIN D. HOWELL

Raleigh

SHIRLEY E. HARRIS

Troy

ROBERT TOM SPEEDBoone

MELISSA E. BARTLETT

Statesville

JOHN A. TATE III

Charlotte

PATRICIA N. WILLOUGHBY

Raleigh

The guiding mission of the North Carolina State Board of Education is that every public school student will graduate

from high school, globally competitive for work and postsecondary education and prepared for life in the 21st Century.

M0309

LOCAL EDUCATIONAL AGENCY (LEA) CONTACT

The local educational agency (LEA) is your local school system. This may be a county or city school system, public charter school or

State-operated program. The acronym LEA is used throughout this document for your local school system.

It is important that you understand the Procedural Safeguards (legal rights) provided for you and your child with a disability. Staff is

available to assist you in understanding your rights and will provide further explanation upon your request. If you have any questions

or would like additional information, please contact the Exceptional Children (EC) Department in your local school, charter school, or

State-operated program, or the LEAs EC Director.

________________________________________________

LEAs EC Director

________________________________________________ ________________________________________________

Telephone Email

LEA EC Directors are listed at http://www.ncpublicschools.org/ec/directory/districtCharter Schools are listed at http://www.ncpublicschools.org/charterschools/schools/

State Educational Agency (SEA) The State Educational Agency is the North Carolina Department of Public Instruction (NCDPI).The acronym, NCDPI, is used throughout this document to refer to the SEA. The Exceptional Children (EC) Division is part of NCDPI.

State EC DirectorMary N. Watson

NC Department of Public InstructionExceptional Children Division

6356 Mail Service Center, Raleigh, NC 27699-6356

Telephone 919.807.3969 :: Fax 919.807.3243

http://www.ncpublicschools.org/ec/


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i

Procedural Saeguards:Handbook on Parents' Rights | September 2008

Procedural Saeguards September 2008 (Revised April 2

IntroductIon

The Individuals with Disabilities Education Improvement Act o 2004 (IDEA) is the ederal law andArticle 9, Section 115C o the North Carolina General Statutes is the State law concerning the educationo students with disabilities. Part B o the IDEA reers to the part o the law or children with disabilities

who are ages three (3) through 21.Children with disabilities include those with autism, dea-blindness, deaness, developmental delay,serious emotional disability, hearing impairment, intellectual disability, multiple disabilities, other healthimpairment, orthopedic impairment, specic learning disabilities, speech and/or language impairment,traumatic brain injury and visual impairment.

PurPose of thIs document

The IDEA requires schools to provide parents o a child with a disability a noticecontaining a ull explanation o the Procedural Saeguards (legal rights) availableunder the IDEA and the accompanying ederal regulations.

The numbers listed ater each heading in this document reer to the sections orthe legal citations in the ederal regulations. The numbers ater some o thesub-headings reer to the legal citations in the North Carolina Policies Governing

Services or Children with Disabilities (Policies) where you can nd the inormation.(Examples: 34 CFR 300.300 and NC 1504-1.13)

This document replaces the 2004 Handboon Parents Rights. It reects the mandates the IDEA (2004), ederal regulations (Aug14, 2006) and Policies (November 1, 200

This document is located at:http://www.ncpublicschools.org/ec/policresources/

InformatIon In the Procedural safeguards

The Procedural Safeguards document LEAs are required to give parents applies 13 rights of children with disabilities and their parents.

1. Parental Consent

2. Prior Written Notice

3. Independent Educational Evaluation

4. Condentiality and Access to Records

5. Unilateral Placement o Children with Disabilities by Parents in Private Schools at Public Expense

6. Availability o Mediation

7. State Complaint Procedures

8. Filing a Due Process Petition

9. Hearings on Due Process Petitions

10. State-Level Appeals

11. Civil Actions

12. Attorneys Fees

13. Disciplinary Procedures

When You WIll receIve the Procedural safeguards

The Procedural Saeguards must be given to you e time each ch ear and at the ollowing times:

a. When your child is rst reerred or evaluation or when you request an evaluation;

b. When you request a copy o the Procedural Saeguards;

c. When your child is removed or disciplinary reasons and the removal results in a change in placement;d. Upon receipt o the rst State complaint and/or the rst due process petition in a school year, i you le a State complaint

or request a due process hearing; and

e. Upon each revision to the Procedural Saeguards.

to assIst You:

There are some denitions provided ater the Procedural Saeguards headings andsub-headings. Acronyms and additional denitions used oten in special educationare at the end o this document in Appendix I. Throughout this document, daymeans calendar day unless it is written as business day or school day.

Explanations in more reader-friendlylanguage are beside the citations.

These begin withIn Other Words..


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ii

Procedural Saeguards:Handbook on Parents' Rights | September 2008

rocedural Saeguards September 2008 (Revised April 2009)

Tabe f Ctet Page

Inormation and Purpose ...............................................................................................................................i

Inormation About and Content o the Procedural Saeguards ........................................................................ i

Parental Consent ...........................................................................................................................................1

Prior Written Notice .....................................................................................................................................3

Independent Educational Evaluation ..............................................................................................................4

Access to Records .........................................................................................................................................5

Parents Unilateral Placement o Children with Disabilities in Private Schools at Public Expense ....................7

Availability o Mediation ...............................................................................................................................9

State Complaint Procedures .......................................................................................................................11

Filing a Due Process Petition .....................................................................................................................12

Hearings on Due Process Petitions .............................................................................................................16

State-Level Appeals ....................................................................................................................................18

Civil Actions ...............................................................................................................................................19

Attorneys Fees ...........................................................................................................................................20

Disciplinary Procedures .............................................................................................................................21

Appendix I Acronyms, Denitions, and Inormation ....................................................................................26

Appendix II Resources or Parents ..............................................................................................................28


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Procedural Saeguards 1 September 2008 (Revised April 2

1. PARENTAL CONSENT 34 CFR 300.300 and NC 1503-1

defInItIon

Consentmeans:

a. You have been ully inormed in your native language or other mode ocommunication (such as sign language, Braille, or oral communication) o allinormation about the action or which you are giving consent;

b. You understand and agree in writing to that action, and the consent describesthat action, and lists the records (i any) that will be released and to whom; and

c. You understand that the consent is voluntary on your part and you maywithdraw your consent at anytime.

d. Your withdrawal o consent does not undo an action that has occurred ateryou gave your consent and beore you withdrew it.

e. I you revoke consent in writing to end your childs receipt o specialeducation services ater the child has already received services, the LEA is notrequired to amend the education records to remove any reerences to yourchilds receipt o special education services

In Other Words...You have certain consent rights. There aretimes when the LEA must ask or your writtpermission. These are explained below.

Your withdrawal o consent does not undo an action that has occurred ater yougave your consent and beore you withdrew it.

You can withdraw your permission, butcannot change what happened beore

you withdrew it.

consent for InItIal evaluatIon

Your LEA cannot conduct an initial evaluation o your child to determine whetheryour child is eligible under IDEA to receive special education and related serviceswithout rst providing you with prior written notice o the proposed action andwithout obtaining your consent as described in this section.

Your LEA must make reasonable eorts to obtain your inormed consent or aninitial evaluation to decide whether your child is a child with a disability.

Your consent or initial evaluation does not mean that you have also given yourconsent or the LEA to start providing special education and related services toyour child.

You must be notifed and give writtenpermission beore the LEA can evaluate

your child or special education and relateservices or the frst time.

Giving permission to evaluate does notmean you have also given permission orspecial education services.

I your child is enrolled in public school or you are planning to enroll your childin a public school, and you have reused to provide consent or ailed to respondto a request to provide consent or an initial evaluation, your LEA may, but isnot required to, seek to conduct an initial evaluation o your child by requesting

mediation or ling a petition or a due process hearing. Your LEA will not violateits obligations under Child Find to locate, identiy and evaluate your child i itdoes not pursue an evaluation o your child in these circumstances.

I you do not give written permission, theLEA can request mediation or fle a dueprocess petition to test your child withoutpermission, but it is not required to do this

sPecIal rules for InItIal evaluatIon of Wards of the state

Ward o the State in North Carolina means a child who, as determined byNorth Carolina law, is removed rom the home and placed in custody with theDepartment o Social Services (DSS) or a person designated in a court order.

I a child is a ward o the State and is not living with you, the LEA does not needconsent rom you or an initial evaluation to determine i your child is a child witha disability i:

a. Despite reasonable eorts to do so, the LEA cannot nd you;b. Your rights have been terminated in accordance with NC law; orc. A judge has assigned the right to make educational decisions and to consent

or an initial evaluation to an individual other than you.

Form DEC2


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rocedural Saeguards 2 September 2008 (Revised April 2009)

Parental consent for servIces

Your LEA must obtain your inormed consent beore providing special educationand related services to your child or the rst time. The LEA must make reasonableeorts to obtain your inormed consent.

In Other Words...Ater the evaluation, i the IEP Team decidesyour child is eligible, you must give writtenpermission beore your child can receivespecial education and related services or thefrst time. (You are a member o the IEP Team.)

I you do not respond to a request to provide consent or your child to receivespecial education and related services or the rst time or i you reuse to give such

consent, your LEA may not use mediation or a due process hearing in order toobtain agreement or a ruling that the special education and related services maybe provided without your consent.

I you do not give written permission oryour child to receive special education ater

the initial evaluation, the LEA cannot usemediation or due process to provide theservices without your permission.

I you reuse to give consent or your child to receive special education and relatedservices or the rst time, or you revoke consent after services are initiated, or iyou do not respond to a request to provide such consent and the LEA does notprovide your child with the special education and related services or which itsought your consent, your LEA:

a. Is not in violation o the requirement to make a ree appropriate publiceducation (FAPE) available to your child or its ailure to provide thoseservices to your child; and

b. Is not required to have an Individualized Educational Program (IEP) meetingor develop an IEP or your child or the special education and related servicesor which your consent was requested.

You cannot fle a State complaint or adue process petition against the LEA orailing to provide a ree, appropriatepublic education (FAPE), i you did not givepermission or your child to receive specialeducation and related services.

Parental consent for reevaluatIons

Your LEA must obtain your inormed consent beore it tests your child as part othe reevaluation process, unless it can demonstrate that it took reasonable stepsto obtain your consent or your childs reevaluation assessments; and you didnot respond.

I the IEP Team decides your child needsany testing or a reevaluation and you donot respond to requests or your permission,the school can test your child without yourpermission.

I you reuse to consent to testing as part o your childs reevaluation, the LEA may,but is not required to, use mediation or a due process hearing to override yourreusal to provide consent. Your LEA does not violate its obligations under theIDEA i it does not pursue the reevaluation testing in this manner.

I you reuse to give permission, the LEAcan request mediation or fle a due processpetition to test without your permission.

documentatIon of reasonable efforts to obtaIn Parental consent

Your school must maintain documentation o reasonable eorts to obtain yourconsent or initial evaluations, to provide special education and related servicesor the rst time, or reevaluation and to locate parents o wards o the State orinitial evaluations. The documentation must include a record o the LEAs attempts,such as:

a. Detailed records o telephone calls made or attempted and the results othose calls;

b. Copies o correspondence sent to you and any responses received; and/orc. Detailed records o visits made to the parents home or place o employment

and the results o those visits.

The LEA must keep records o the times ithas tried to contact you about giving writtenpermission or an evaluation o your childor to provide special education and relatedservices to your child.

When consent Is not requIred

Your consent is not required beore your LEA may:

a. Review existing data (records and inormation) as part o your childs initialevaluation or reevaluation; or

b. Give your child a test or other evaluation that is given to all children unless,beore that test or evaluation, consent is required rom the parents o all children.

Your LEA may not use your reusal to consent to one service or activity to denyyou or your child any other service, benet, or activity.

Beore an evaluation or reevaluation, the

IEP Team may review the data it already hasand this does not require your permission.

The LEA does not need your permissionto give your child with a disability a testor other evaluation that it is giving otherchildren in the school, unless permission isrequired rom the other parents.

I you have enrolled your child in a private school at your own expense or i youare home schooling your child and you do not provide consent or your childsinitial evaluation or reevaluation, or you ail to respond to a request to provideyour consent, the LEA cannot override your consent by using mediation or animpartial due process hearing.

The LEA cannot request mediation or fle adue process to test without your permissioni your child attends a private school that

you pay or or is home schooled.

Form DEC2

Form DEC6


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2. PRIOR WRITTEN NOTICE 34 CFR 300.503 and NC 1504-1.4

defInItIon

Native language - When used with an individual who has limited Englishprociency, native language means:

a. The language normally used by that person, or, in the case o a child, thelanguage normally used by the childs parents; and

b. In all direct contact with a child (including evaluation), the language

normally used by you in the home or learning environment.For a person with deaness or blindness or or a person with no written language,the mode o communication is what the person normally uses (such as signlanguage, Braille, or oral communication).

In Other Words...

notIce

Your LEA must give you written notice (provide you certain inormation in writing)whenever it:

a. Proposes to initiate or to change the identication, evaluation, or educationalplacement o your child, or the provision o a ree appropriate publiceducation (FAPE) to your child; or

b. Reuses to initiate or to change the identication, evaluation, or educationalplacement o your child, or the provision o FAPE to your child.

c. Ceases services based on your written revocation o consent.

Note: Inormation about providing prior notice due to a disciplinary change inplacement is located in Section 13 Dicipiar Prcedure

I you revoke consent, the LEA must provid

written notice to you beore stopping thespecial education services.

content of notIce

The written notice must:

a. Describe the action that your LEA proposes or reuses to take;

b. Explain why your LEA is proposing or reusing to take the action;

c. Describe each evaluation procedure, assessment, record, or report your LEAused in deciding to propose or reuse the action;

d. Include a statement that you have protections under the ProceduralSaeguards provisions in Part B o the IDEA (Part B means services or childrenages 3 through 21);

e. Tell how you can obtain a description o the Procedural Saeguards i the

action that your LEA is proposing or reusing is not an initial reerral orevaluation;

. Include resources or you to contact or help in understanding IDEA;

g. Describe any other options that your childs Individualized Education Program(IEP) Team considered and the reasons why those options were rejected; and

h. Provide a description o the reasons why your LEA proposed or reused the action.

The prior written notice must clearly explaieverything the LEA decided to do or reuseto do, and why those decisions were mad

The prior written notice must clearly explaithe other things the LEA considered, butdecided against, and why it decidedagainst them.

The prior written notice must clearly explaiall the inormation used in making the

decisions.The prior written notice must have astatement that tells you about yourprotections in this document.

notIce In understandable language

The notice must be:

a. Written in language understandable to the general public; and

b. Provided in your native language or other mode o communication you useunless it is clearly not easible to do so.

I your native language or other mode o communication is not a written language,your LEA must take steps to ensure that:

a. The notice is translated or you orally or by other means in your nativelanguage or other mode o communication;

b. You understand the content o the notice; and

c. There is written evidence that a and b have been met.

I your native language is not one that can

be written, the LEA will translate the noticeor you orally.

electronIc maIl

I your LEA oers parents the choice o receiving documents by e-mail, you maychoose to receive the ollowing by e-mail:

a. Prior written notice;

b. Procedural Saeguards notice (this document); and

c. Notices related to a due process petition.

You can ask the LEA to send these threenotices by e-mail i the LEA oers you achoice about how you receive the notices.

Form DEC5


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3. INDEPENDENT EDUCATIONAL EVALUATIONS (IEE) 34 CFR 300.502 and NC 1504-1.13

defInItIons

Independent educational evaluation (IEE) - An evaluation conducted by aqualied examiner who is not employed by the LEA responsible or theeducation o your child.

Public expense - The LEA either pays or the ull cost o the evaluation or ensuresthat the evaluation is provided at no cost to you, consistent with the provisions othe IDEA, which allow each state to use whatever state, local, ederal and privatesources o support are available in the state to meet these requirements.

In Other Words

general

You have the right to obtain an independent educational evaluation (IEE) of yourchild if you disagree with the evaluation of your child that was conducted byyour LEA.

I you request an independent educational evaluation, the LEA must provide youwith inormation about where you may obtain it and about the LEAs criteria thatapply to independent educational evaluations.

I you disagree with the schools evaluation,you can ask or the LEA to pay or anevaluation by someone not employed bythe LEA. The LEA will give you names oqualifed people who can do the evaluation.

evaluatIon at PublIc exPense

You have the right to an independent educational evaluation o your child at

public expense i you disagree with an evaluation o your child conducted by yourLEA, subject to the ollowing conditions:

a. I you request an independent educational evaluation at public expense, yourLEA must, without unnecessary delay, either:

File a due process petition to request a hearing to show that its evaluationo your child is appropriate; r

Provide an independent educational evaluation at public expense, unlessthe LEA demonstrates in a hearing that the evaluation o your child that youobtained did not meet the LEAs criteria;

I you request an IEE, the LEA has to decidei it will pay or it or fle a due processpetition to show that its evaluation isappropriate. I the judge decides the LEAsevaluation is appropriate, then the LEA doesnot have to pay or an IEE.

b. I your LEA requests a hearing and the nal decision is that your LEAsevaluation o your child is appropriate, you still have the right to anindependent educational evaluation, but not at public expense; ad

You must tell the school sta whichassessments you disagree with and those arethe only ones the LEA must pay or when yourequest an IEE. You do not have to tell theLEA why you disagree with its evaluation.

c. I you request an independent educational evaluation o your child, the

LEA may ask why you object to its evaluation. However, your LEA may notrequire an explanation and may not unreasonably delay either providingthe independent educational evaluation at public expense or ling or a dueprocess hearing to deend its evaluation.

You are entitled to only one independent educational evaluation o your child atpublic expense or each evaluation your LEA conducted with which you disagree.

You may request only one IEE (paid orby the LEA) or each LEA evaluation youdisagree with and i the LEA has notcompleted an evaluation, you cannotrequest an IEE.

Parent-InItIated evaluatIons

I you obtain an independent educational evaluation o your child at publicexpense or you share with the LEA an evaluation o your child that you obtainedat private expense:

a . Your LEA must consider the results o the evaluation o your child, i it meetsthe LEAs criteria or independent educational evaluations, in any decisionmade with respect to the provision o a ree appropriate public education(FAPE) to your child; ad

b . You or your LEA may present the evaluation as evidence at a due processhearing about your child.

The IEP Team must consider the results oall IEEs that meet the LEAs criteria whenmaking decisions. (See the sub-heading LEACriteria.)

requests for evaluatIons bY hearIng offIcers

I a hearing ocer requests an independent educational evaluation o your child aspart o a due process hearing, the cost o the evaluation must be at public expense.

I a judge orders an IEE as part o a dueprocess hearing, the LEA must pay or it.


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lea crIterIa

When an LEA pays or an independent educational evaluation, the criteria or selectingan examiner or the independent evaluation must be the same criteria that the LEAuses when it arranges or an evaluation (as long as those criteria do not interere withyour right to an independent educational evaluation). Examples o the criteria are thelocation o the evaluation and the qualifcations o the examiner.

Except or the criteria described above, an LEA may not impose conditions or timelinesrelated to obtaining an independent educational evaluation at public expense.

In Other Words...The LEA must require you to use the samecriteria it uses when selecting someone toconduct an evaluation. However, it cannotrequire you to use the same criteria i itintereres with your right to an IEE.

defInItIonsas used under this section

a. d - Physical destruction or removal o personal identiers rominormation so that the inormation is no longer personally identiable.

b. e - The type o records covered under the denition oeducation records in the Family Educational Rights and Privacy Act(FERPA). Ifrmati abut FERPA i cated athttp://ed.gov/policy/gen/

guid/fpco/index.html

c. Plly fbl -Inormation that includes your childs name, yourname as the parent or the name o another amily member; your childsaddress; a personal identier such as your childs social security or studentnumber, a list o personal characteristics; or other inormation that would

make it possible to identiy your child with reasonable certainty.

ConFIDEnTIAlITy noTICE To PAREnTsThe NC Department o Public Instruction must give notice that is adequate toully inorm parents about condentiality o personally identiable inormation,including:

a. A description o the extent to which the notice is given in the native languageso the various population groups in NC;

b. A description o the children on whom personally identiable inormationis maintained, the types o inormation sought, the methods the state uses ingathering the inormation (including the sources rom whom inormation isgathered), and the uses to be made o the inormation;

c. A summary o the policies and procedures that the LEA must ollow aboutstorage, disclosure to third parties, keeping records, and destruction o

personally identiable inormation; andd. A description o all o the rights o parents and children about this

inormation, including the rights under the Family Educational Rights andPrivacy Act (FERPA).

Beore any major identifcation, location, or evaluation activity (Child Find), thenotice must be published or announced in newspapers or other media, or both, withcirculation adequate to notiy parents throughout the state o the activity to locate,identiy, and evaluate children in need o special education and related services.

You have the right to be told by NCDPI howinormation on your child will be used andkept confdential by the State.

access to records

The local educational agency (LEA) must allow you to inspect and review anyeducation records relating to your child that are kept or used by your LEAunder IDEA. The LEA must comply with your request to inspect and review any

education records on your child without unnecessary delay and beore anymeeting about an IEP or any impartial due process hearing (including a resolutionmeeting or a hearing about discipline) and in no case more than 45 days ater youhave made a request. Your right to inspect and review education records includes:

a. Your right to a response rom the LEA to your reasonable requests orexplanations and interpretations o the records;

b. Your right to request that the LEA provide copies o the records i you cannoteectively inspect and review the records; and

c. Your right to have your representative inspect and review the records.

The LEA may presume that you have authority to inspect and review records relatingto your child unless advised that you do not have the authority under applicable NClaw governing such matters as guardianship or separation and divorce.

The LEA must not delay your review o yourchilds educational records and must let youreview them beore any IEP meeting or dueprocess hearing. The LEA must let you reviethe records within 45 days o your request.

You have the right to review your childseducation records, ask or an explanationo any records you do not understand, askor copies i you cannot go to the schoolto review your childs records, and havesomeone who represents you review yourchilds records.

4.ACCESS TO RECORDS 34 CFR 300.610 - 300.625 and NC 1505-2


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record of access

Each LEA must keep a record o parties obtaining access to education recordscollected, maintained, or used under IDEA (except access by parents andauthorized employees o the LEA), including the name o the party, the date accesswas given, and the purpose or which the party is authorized to use the records.

In Other Words...The school must document who can see yourchilds record. I someone else reviews yourchilds record then that person must signand date a orm, and write why he/shereviewed the record.

records on more than one chIld

I any education record includes inormation on more than one child, the parents

o those children have the right to inspect and review only the inormation relatingto their child or to be inormed o that specic inormation.

I there is inormation about another child

in your childs records, that childs parentscan only see their childs inormation. Theycannot see your childs inormation.

lIst of tYPes and locatIons of InformatIon

On request, each LEA must provide you with a list o the types and locations oeducation records it collects, maintains or uses.

You can ask the LEA what kinds o records itkeeps and where they are located.

fees

Each LEA may charge a ee or copies o your childs special education records, i theee does not eectively prevent you rom exercising your right to inspect and reviewthose records. An LEA may not charge a ee to search/retrieve the inormation.

The LEA can charge a ee to copy your childsrecord, but it must be a reasonable ee thatyou are able to pay. The LEA cannot chargeor looking or and getting the records.

amendment of records at Parents request

I you believe that inormation in the education records about your childcollected, maintained and/or used under IDEA is inaccurate, misleading, orviolates the privacy or other rights o your child, you may request the LEA thatmaintains the inormation to change the inormation.

The LEA must decide whether to change the inormation in accordance with yourrequest within a reasonable period o time o receipt o your request. I the LEAreuses to change the inormation in accordance with your request, it must inormyou o the reusal and advise you o the right to a hearing or this purpose, asdescribed under the sub-heading opprtuit fr a Hearig.

I you disagree with certain items in therecords, you can ask or those items to bechanged or removed rom the record.

I the school decides not to change orremove these items, you can ask or ahearing that will be conducted by the LEA.

I the LEA reuses to change the inormation in accordance with your request, itmust inorm you o the reusal and advise you o the right to a hearing or thispurpose as described under the sub-heading opprtuit fr a Hearig.

I the school decides not to change or removethese items, you can ask or a hearing thatwill be conducted by the LEA.

oPPortunItY for a hearIng

The LEA must, upon your request, provide you an opportunity or a hearing tochallenge inormation in education records about your child to ensure that theinormation is not inaccurate, misleading, or otherwise in violation o the privacyor other rights o your child.

hearIng Procedures

The LEA must conduct a hearing when you disagree with inormation in educationrecords. The hearing is not a due process hearing. It is conducted according to theprocedures under the Family Educational Rights and Privacy Act (FERPA).

Ifrmati abut FERPA i at:http://ed.gov/policy/gen/guid/fpco/index.html

result of hearIng

I, as a result o the hearing, the LEA decides that the inormation is inaccurate,misleading or otherwise in violation o the privacy or other rights o your child, itmust amend the inormation accordingly and inorm you in writing.

I, as a result o the hearing, the LEA decides that the inormation is not inaccurate,misleading or otherwise in violation o the privacy or other rights o your child,it must inorm you o your right to place in the records that it maintains on yourchild a statement commenting on the inormation or providing any reasons youdisagree with the decision o the LEA.

I the decision rom the hearing is thatthe inormation you disagreed with is notcorrect or violates your childs privacy orother rights, it must change the inormation.

I the decision rom the hearing is that theinormation is correct and does not violate

your childs privacy and other rights, thenyou have the right to place a statement inthe record about the inormation or tellingwhy you disagreed with it.


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Such an explanation placed in the records o your child must:

a. Be maintained by the LEA as part o the records o your child as long as therecords or contested portion is maintained by the LEA; and

b. I the LEA discloses the records o your child or the challenged portion to anyparty, the explanation must also be disclosed to that party.

In Other Words...I the LEA makes a copy o the record oranother party, then it must also copy yourwritten statement.

consent for dIsclosure of PersonallY IdentIfIable InformatIon

Unless the inormation is contained in education records and the FamilyEducational Rights and Privacy Act (FERPA) authorizes its release, your consent

must be obtained beore personally identiable inormation is released to partiesother than ocials o the school system.

Your consent is not required beore personally identiable inormation is releasedto ocials o the LEA or purposes o meeting a requirement o IDEA except when:

The LEA must get your written permissionbeore it can give inormation that identifeyour child to people not employed by theLEA. There are times that your permission inot required, such as, when ofcials o theLEA need the inormation as a requiremento the IDEA.

a. Your consent, or the consent o your child who has reached the age omajority (18 years old), must be obtained beore personally identiableinormation is released to ocials o participating agencies providing orpaying or transition services; or

b. I your child attends or is going to attend a private school that is not locatedin the same LEA in which you reside, your consent must be obtained beoreany personally identiable inormation about your child is released betweenocials in the LEA where the private school is located and ocials in the LEAwhere you reside.

Written permission is required to shareinormation with other agencies assistingwith post-secondary transition services.

I your child attends a private school inanother LEA, the LEA where you live mustget your written permission to share therecord with the LEA where the private schois located.

safeguards

Each LEA must protect the condentiality o personally identiable inormationat collection, storage, disclosure, and destruction stages. One ocial o eachLEA must assume responsibility or ensuring the condentiality o any personallyidentiable inormation. All persons collecting or using personally identiableinormation must receive training or instruction on policies and proceduresabout condentiality under IDEA and the Family Educational Rights and PrivacyAct (FERPA).

Each LEA must maintain, or public inspection, a current listing o the namesand positions o those employees within the agency who may have access topersonally identiable inormation.

The LEA must keep your childs recordsconfdential and keep a list o all employewho can review your childs records withowritten permission.

destructIon of InformatIonYour LEA must inorm you when personally identiable inormation collected,maintained or used is no longer needed to provide educational services to yourchild.The inormation must be destroyed at your request. However, a permanentrecord o your childs name, address, phone number, his or her grades, attendancerecord, classes attended, grade level completed and year completed may bemaintained without time limitation.

When the LEA no longer needs personallyidentifable inormation to provide servicesto your child, it must inorm you. You havethe right to ask or your childs record to bedestroyed when it is no longer needed, buthe LEA can keep directory inormation.


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Placement of chIldren bY Parents If faPe Is at Issue

IDEA does not require an LEA to pay or the cost o education, including specialeducation and related services, o your child with a disability at a private schoolor acility i the LEA made a ree appropriate public education (FAPE) available

to your child and you chose to place your child in a private school or acility.However, the LEA where the private school is located must include your child inthe population whose needs are addressed in the section o IDEA about childrenwhose parents placed them in a private school.

In Other Words...I the LEA made a FAPE available to yourchild and you decided to enroll your child

in a private school, then the LEA is notrequired to pay or the private school. TheLEA where the private school is located mayprovide some services through a privateschool service plan i those services arepart o the services the LEA provides toparentally placed private school students.

reImbursement for PrIvate school Placement

I your child previously received special education and related services under theauthority o an LEA and you choose to enroll your child in a private preschool,elementary school, or secondary school without the consent o or reerral bythe LEA, a hearing ocer or court may require the agency to reimburse you orthe cost o that enrollment i the court or hearing ocer nds that the agencyhad not made a ree appropriate public education (FAPE) available to your child

in a timely manner prior to that enrollment and that the private placement isappropriate. A hearing ocer or court may nd your placement to be appropriate,even i the placement does not meet the State standards that apply to educationprovided by NCDPI and LEAs.

I a hearing ofcer or court decides theLEA did not make a FAPE available oryour child, then the LEA may have to payor private school placement, i it is anappropriate placement.

lImItatIon on reImbursement

The cost o reimbursement described in the paragraph above may be reducedor denied:

a. I at the most recent IEP meeting that you attended prior to your removal oyour child rom the public school, you did not inorm the IEP Team that youwere rejecting the placement proposed by the LEA to provide FAPE to yourchild, including stating your concerns and your intent to enroll your child ina private school at public expense r at least 10 business days (including any

holidays that occur on a business day) prior to your removal o your childrom the public school, you did not give written notice to the LEA o thatinormation;

b. I, prior to your removal o your child rom the public school, the LEAprovided prior written notice to you o its intent to evaluate your child(including a statement o the purpose o the evaluation that was appropriateand reasonable), but you did not make your child available or the evaluation;r

c. Upon a courts nding that your actions were unreasonable.

I you decide to enroll your child with adisability in a private school and ask the LEAto pay, you must have told school ofcialsat the last IEP Team meeting you attendedor 10 business days beore withdrawing

your child that you were going to enroll yourchild in a private school. In this situation,business day includes any holidays that all

on Monday through Friday. You must havealso told school ofcials what your concernswere about the public school program. Thecourt may decide the LEA does not have topay or the court may lower the costs i youdid not tell school ofcials, did not bring

your child to an evaluation the LEA wantedto conduct, or acted without reason.

However, the cost o reimbursement:

a. Must not be reduced or denied or ailure to provide the notice i:

The school prevented you from providing the notice; You had not received notice of your responsibility to provide the notice

described above; or Compliance with the requirements above would likely result in physical

harm to your child; ad

The court cannot deny or reduce thepayment i the school kept you romproviding the notice, did not give you theProcedural Saeguards that tell you aboutproviding the notice or i ollowing the

requirements might result in physical harm toyour child.

b. May, in the discretion o the court or a hearing ocer, not be reduced ordenied or your ailure to provide the required notice i:

The parent is not literate or cannot write in English; or Compliance with the above requirement would likely result in serious

emotional harm to your child.

I you did not provide the notice becauseyou cannot read, you cannot write inEnglish, or i ollowing the requirementsmight result in serious emotional harm to

your child then the court cannot reduce ordeny the payment.

5. REQUIREMENTS FOR UNILATERAL PLACEMENT OF CHILDREN WITHDISABILITIES BY THEIR PARENTS IN PRIVATE SCHOOLS AT PUBLIC EXPENSE34 CFR 300.148 and NC 1501-6 through NC 1501-8


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defInItIon

Mediation is an inormal meeting o the parent and the school led by aneutral third party, the mediator. Mediation is a voluntary process, which theparties themselves control. The mediator helps the parents and school resolvedisagreements concerning the childs identication, evaluation, program, orplacement. Mediation can help the parties reach agreement about specic issues,as well as build a better working relationship or the uture. Mediation can help

resolve dierences between parents and schools eciently and eectively.

More inormation about mediation is at: http://www.ncpublicschools.org/ec/policy/dispute/mediation/

Note: Mediationis a service oered reeo cost to you and the LEA and can berequested by sending a completed requesorm to:

Mediation CoordinatorNCDPI EC Division

6356 Mail Service CenterRaleigh, NC 27699-6356Fax: to 919.807.3755.

general

The EC Division o NCDPI makes mediation available to allow you and the LEA toresolve disagreements involving any matter under IDEA, including matters arisingprior to the ling o a due process petition.

Mediation is available to resolve disputes under IDEA, whether or not you haveled a due process petition to request a due process hearing as described underthe heading Fiig a Due Prce Petiti.

In Other Words...You and/or the LEA may request mediatioany time you and the LEA cannot resolvea dispute. You do not have to fle adue process petition in order to requestmediation.

requIrementsThe procedures must ensure that the mediation process:

a. Is voluntary on your part and the LEAs part;

b. Is not used to deny or delay your right to a due process hearing, or to denyany other rights you have under IDEA; and

c. Is conducted by a qualied and impartial mediator who is trained in eectivemediation techniques.

The EC Division maintains a list o people who are qualied mediators and knowthe laws and regulations relating to the provision o special education and relatedservices. The EC Division must select mediators on a random, rotational or otherimpartial basis. The EC Division is responsible or the cost o the mediation process.

nte: The cost o the mediation process does not include any attorneys ees, iyou and/or the LEA bring attorneys to the mediation.

Each meeting in the mediation process must be scheduled in a timely manner andheld at a place that is convenient or you and the LEA.

A mediator is an impartial person whodoes not tell you or the LEA what to do,but assists you and the LEA to resolvedierences and disputes.

I you and the LEA resolve a dispute through the mediation process, both partiesmust enter into a legally binding agreement that sets orth the resolution and that:

a. States that all discussions that happened during the mediation process willremain condential and may not be used as evidence in any subsequent dueprocess hearing or civil proceeding; and

b. Is signed by both you and a representative o the LEA who has the authorityto bind the LEA. A written, signed mediation agreement is enorceable inany state court o competent jurisdiction (a state court that has the authorityto hear this type o case), ederal court, or through a State complaintinvestigation.

I you and the LEA resolve the dispute, thethe mediator writes an agreement or allparties to sign and it is legally binding.

Discussions that happen during themediation process must be kept confdentiThey cannot be used as evidence inany uture due process hearing or civilproceeding o any ederal or state court.

ImPartIalItY of medIatorThe mediator:

a. May not be an employee o the NCDPI or the LEA that is involved in theeducation or care o your child; and

b. Must not have a personal or proessional interest that conficts with themediators objectivity.

A person who otherwise qualies as a mediator is not an employee o an LEA orthe EC Division solely because he or she is paid by the LEA or the EC Division toserve as a mediator.

The mediator does not work or NCDPI orthe LEA where your child goes to school.

The State pays the mediator, but that doesnot make the mediator a State employee.The LEA may provide and pay or animpartial mediator, but that does not makethe mediator an employee o the LEA.

6. AVAILABILITY OF MEDIATION 34 CFR 300.506 and NC 1504-1.7


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defInItIon

s cmpl- A State complaint is a signed written statement that allegesa school or local educational agency is not ollowing special education lawand regulations ound in IDEA, Article 9 o Section 115C in the NC GeneralStatutes. This statement is a ormal request or the EC Division to investigate theallegation(s) o noncompliance.

More inormation about State complaints is located athttp://www.ncpublicschools.org/ec/policy/dispute/complaints/

In Other Words...

fIlIng a comPlaInt

An organization or individual may le a signed written State complaint under theprocedures described below.

The State complaint must include:

a. A statement that an LEA or other public agency has violated, Federalregulations, NC General Statutes 115C (Article 9), and/or Policies;

b. The fact on which the statement is based;

c. The signature and contact inormation or the complainant; and

d. I alleging violations about a specic child:

The name and address of the residence of the child; The name of the school the child is attending; In the case of a homeless child or youth, available contact information for

the child, and the name o the school the child is attending; A description of the problem, including facts relating to it; and A proposed resolution of the problem to the extent known and available

to the party ling the complaint at the time the complaint is led.

I the complaint does not have all therequired items, it will be returned to you. Ithis happens, NCDPI will send you a letterand tell you what you need to do i youchoose to change the complaint and fleit again. It is important or you to include

specifc acts about what you believe theschool did not do that the law says it mustdo. Send any documents (orms, papers,etc.) that support your complaint.

The complaint must allege a violation that occurred not more than e ear priorto the date that the complaint is received as described under the sub-headingAdptif state Cmpait Prcedure.

The party ling the State complaint must orward a copy o the complaint to theLEA or other public agency serving the child at the same time the party les thecomplaint with the EC Division.

nte: Issues that are not part o ederal regulations, Article 9, or the Policies will

not be investigated. Examples are: promotion, retention, personnel issues, anddiscrimination.

You must fle a complaint within one year othe date you believe the school did not ollowederal regulations, Article 9, or the Policies.

You must send a copy to the other party (theLEA or other public agency).

adoPtIon of state comPlaInt Procedures

NCDPI has written procedures or:

a. Resolving any complaint, including a complaint led by an organization orindividual rom another state;

b. The ling o a complaint with the NCDPI; and

c. Widely disseminating the State complaint procedures to parents and otherinterested individuals, including parent training and inormation centers,protection and advocacy agencies, independent living centers, and otherappropriate entities.

Note: Beore fling a complaint, youshould talk with your childs teacher,principal, the local EC Director, or otherpersonnel in the LEA.

7. STATE COMPLAINT PROCEDURES 34 CFR 300.152 and NC 1501-10


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mInImum state comPlaInt Procedures tIme lImIt

Within 20 calendar days ater a complaint is led, the NCDPI will:

a. Give the complainant the opportunity to submit additional inormation, eitherorally or in writing, about the allegations in the complaint; and

b. Provide the LEA or other public agency with the opportunity to respond to thecomplaint, including, at a minimum, at the option o the agency, a proposalto resolve the complaint and an opportunity or a parent who has led acomplaint and the agency agree to voluntarily engage in mediation.

In Other Words...You have 20 days ater fling a complaintto send more inormation to NCDPI. TheLEA also has 20 days to respond and senany inormation.

Within 60 calendar days ater a complaint is led, the EC Division will:

a. Review all relevant inormation and make an independent determination as towhether the LEA or other public agency is violating a requirement o Federalregulations, Article 9, and/or Policies;

b. Carry out an independent on-site investigation, i the investigator determinesthat an investigation is necessary; and

c. Issue a written decision to the complainant that addresses each allegation inthe complaint, contains ndings o act, conclusions, and the reasons or theEC Divisions decision(s).

It takes up to 60 days to investigate a ormwritten complaint and send the report to yo

Note: By using mediation, you may beable to resolve the issue(s) about your chilspecial education services and relatedservices more quickly and not have to wa60 days.

tIme extensIon; fInal decIsIon; ImPlementatIon

The ormal State complaint procedures described above also must:

a. Permit an extension o the 60 calendar day time limit only i exceptional

circumstances exist with respect to a particular State complaint, or you andthe LEA or other public agency involved voluntarily agree to extend thetime to resolve the matter through mediation or alternative means o disputeresolution; and

b. Include procedures or eective implementation o the NCDPIs naldecision, i needed, including technical assistance activities; negotiations andcorrective actions to achieve compliance.

The timeline or completing the investigatiand sending you the report can be made

longer than 60 days i there are unusualcircumstances, or you and the LEA aretrying to resolve the issues using mediatio

The EC Division will monitor the LEAscorrection o any violations until theyare completed.

remedIes for denIal of aPProPrIate servIces

In resolving a ormal State complaint in which the NCDPI has ound a ailure toprovide appropriate services, the NCDPI will address:

a. The ailure to provide appropriate services, including corrective actionappropriate to address the needs o your child; and

b. Appropriate uture provision o services or all children with disabilities.

The NCDPI will order the LEA to correct aviolations o the law that were ound durinthe complaint investigation.

state comPlaInts and due Process hearIngs

I a written State complaint is received that is also the subject o a due processhearing as described under the heading Fiig a Due Prce Petiti or theState complaint contains multiple issues o which one or more are part o sucha hearing, the State must set aside the State complaint or any part o the Statecomplaint that is being addressed in the due process hearing, until the hearing isover. Any issue in the State complaint that is not a part o the due process hearingmust be resolved using the time limit and procedures described above.

I an issue in a State complaint has previously been decided in a due processhearing involving the same parties (you and the LEA), then the due process hearingdecision is binding on that issue and the EC Division must inorm the complainant

that the previous decision is binding.A complaint alleging an LEAs or other public agencys ailure to implement a dueprocess hearing decision must be resolved by ling a written complaint with theEC Division o the NCDPI.

I you fle a State complaint and a dueprocess petition about the same issue orissues, then the State complaint will notbe investigated until the judge makes adecision about the due process petition.

I you fle a State complaint on an issueor issues that have already been ruled onduring a due process hearing, then the EC

Division will let you know that the judgesdecision is the one the LEA must ollow.Ithe LEA does not ollow the judges decisio

you can fle a State complaint about that.


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dIfferences betWeen the state comPlaInt and due Process Procedures

n: In addition to mediation, you have the right to use the State complaint process or a due process hearing to resolvedisagreements with the LEA. These methods have dierent procedures, which are described in the ederal regulations andthe Policies.

The ederal regulations or IDEA speciy separate procedures or State complaints and or requests or due process hearings.

state comPlaInt due Process

Any individual or organization may le. Parents o a child, an adult student (age 18 or older),or an LEA may le.

Allegations o procedural violations o IDEA, Article 9o the NC General Statutes 115C, and/or Policies.

Disputes about the identication, evaluation,educational placement o a child with a disability,FAPE, or a maniestation determination.

Must le within one calendar year o alleged violation. Must le within one calendar year o disputed activity.

Sixty (60) calendar days or investigation to becompleted and report sent to you and the LEA.

Thirty (30) days or resolution period and 45 days orhearing and decision to be issued, unless the hearingocer grants a specic extension o the timeline at therequest o parent or LEA.

Decision made by NCDPI sta ater investigationo evidence.

Decision by impartial Administrative Law Judge (ALJ)ater a hearing.

Decision is nal and cannot be appealed. Decision is nal unless appealed.

MoDEl FoRMsThe EC Division has developed model orms to help you le a State complaintand/or a due process petition. However, the EC Division does not require you touse these model orms. You can use the EC Divisions orms or other appropriatemodel orms, as long as they contain the required inormation. The model ormsare located at http://www.ncpublicschools.org/ec/policy/dispute/complaint/and http://www.ncpublicschools.org/ec/policy/dispute/dueprocess/

In Other WordsTo make sure that you include all therequired items in a State complaint or adue process petition, you can use the ormsdeveloped by the EC Division.

defInItIon

d p p A orm that is led with the Oce o AdministrativeHearings ad the Superintendent r EC Director o the local LEA.

More inormation about due process is at:http://www.ncpublicschools.org/ec/policy/dispute/dueprocess/

Note: IDEA uses the term due processcomplaint. North Carolina uses due processpetition.

general

You or the LEA may le a due process petition on any matter relating to a proposalor a reusal to initiate or change the identication, evaluation or educationalplacement o your child or the provision o a ree appropriate public education(FAPE) to your child. Parents mut le the petition with the Superintendent r theEC Director o their LEA ad the Oce o Administrative Hearings (OAH).

The due process petition may be hand-delivered or mailed to your localSuperintendent r EC Director using your local LEAs mailing address.

The LEA can also fle a due process petition.You cannot fle a due process petitionon issues that are not part o the ederalregulations, Article 9, and/or Policies.Some o these are promotion, retention,

personnel issues, and discrimination.

You must fle the petition with the LEAsSuperintendent or the EC Director and theOfce o Administrative Hearings. Sendingit to the EC Division is not an ofcial fling.

The due process petition mut besent to:

Chief Hearig CerkOce o Administrative Hearings6714 Mail Service CenterRaleigh, NC 27699-6714Phone: 919.431.3000Fax: 919.431.3100

A copy o your due process petitionmut be sent to:

Cutat fr Due PrceEC Division, NCDPI6356 Mail Service CenterRaleigh, NC 27699-6356Phone: 919.807.3969Fax: 919.807.3755

8. FILING A DUE PROCESS PETITION34 CFR 300.507 300.518 and NC 1504-1.8 through NC 1504-1.19


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The timelines begin when the Superintendent r the EC Director o the local LEAreceives the petition you led. I the LEA les a due process petition, the timelinesbegin when you receive it.

In Other Words...The hearing timelines begin the day the LEreceives the due process petition, or i theLEA fles a petition the timelines begin theday you receive it.

The due process petition must indicate an action or actions that happened notmore than e caedar ear beore you or the LEA knew or should have knownabout the alleged action that orms the basis o the due process petition.

The above timeline does not apply to you i you could not le a due processpetition within the timeline because:

a. The LEA specifcally misrepresented that it had resolved the issues identifed inthe petition; or

b. The LEA withheld inormation rom you that it was required to provide under IDEA.

In North Carolina, you must fle withinone calendar year o the allegedviolation(s) o the ederal regulations, Artic9, and/or Policies, unless the LEA statedit had resolved the issues or it withheld

required inormation rom you.

InformatIon for Parents

The LEA must inorm you o any ree or low-cost legal and other relevant servicesavailable in the area i you request the inormation.

You may ask the LEA about any ree orlow-cost attorneys in your area.

due Process PetItIon

The petition must contain all o the content listed below and must be keptcondential:

a. The name, age, and disability category o your child;b. The address o your childs residence;

c. The name o your childs school;

d. I your child is a homeless child or youth, your childs contact inormationand the name o your childs school;

e. A ull description o the nature o the problem o your child relating to theproposed or reused action, including specifc acts relating to the problem; and

. A proposed resolution o the problem to the extent known and available toyou or the LEA at the time.

notIce requIred before a hearIng on a due Process PetItIon

You or the LEA may not have a due process hearing until you or the LEA (oryour attorney or the LEAs attorney) les a due process petition that includes the

required inormation listed above.

suffIcIencY of PetItIon

In order or a due process petition to go orward, it must be considered sucient.The due process petition will be considered sucient (to have met the contentrequirements above) unless the party receiving the due process petition (you or theLEA) noties the hearing ocer and the other party in writing, within 15 calendardays o receiving the petition, that the due process petition does not meet therequirements listed above.

Within ve (5) calendar days o receiving the notication that the receiving party(you or the LEA) considers a due process petition insucient, the hearing ocermust decide i the due process petition meets the requirements listed above, andnotiy you and the LEA in writing immediately.

I you do not include all o the items listedunder the sub-heading Due ProcessPetition (a-), the LEA can ask the judge dismiss it. The LEA must do this within 15days o receiving the petition.

The judge must make a decision within fv(5) days.

PetItIon amendment

You or the LEA may make changes to the petition only i:

a. The other party approves o the changes in writing and is given the chance toresolve the issue(s) in the due process petition through the resolution process,described below; or

b. By no later than ve (5) days beore the due process hearing begins, thehearing ocer grants permission or the changes.

I the complaining party (you or the LEA) makes changes to the due processpetition, the timelines or the resolution meeting (within 15 calendar days oreceiving the petition) and the timeline or resolution (within 30 days o receivingthe petition) start again on the date the amended petition is led.

The party that fled the petition cannotmake changes to it unless the other partyagrees in writing.

I the petition is changed, the timelinesstart over on the day you fle the amendedpetition with the LEA Superintendent or ECDirector, and OAH.


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resPonse to a due Process PetItIon

The party receiving a due process petition must send (within 10 calendar days oreceiving the petition) the other party a response that specically addresses theissue(s) in the petition.

In Other Words...Within 10 days, the party the petition wasfled against must send a written response tothe other party.

lea resPonse to a due Process PetItIon

I the LEA has not sent a prior written notice to you about the issues contained inyour due process petition, it must, within 10 calendar days o receiving the dueprocess petition, send you a response that includes:

a. An explanation o why the LEA proposed or reused to take the action raisedin the due process petition;

b. A description o other options that your childs IEP Team considered and thereasons why those options were rejected;

c. A description o each evaluation procedure, assessment, record, or report theLEA used as the basis or the proposed or reused action; and

d. A description o the other actors that are relevant to the LEAs proposed orreused action.

Providing the inormation in items a-d above does not prevent the LEA romasserting that your due process petition was insucient.

I the LEA never gave you prior writtennotice about the issues in your due processpetition, it must do so within 10 days ater it

receives the petition.

The LEA can still challenge your petition asinsufcient.

resolutIon Process

Within 15 calendar days o receiving the due process petition, the LEA mustconvene a resolution meeting with you and the relevant member or memberso the IEP Team who have specic knowledge o the acts in your due processpetition. The meeting:

a. Must include a representative o the LEA who has decision-making authorityon behal o the LEA; and

b. May not include an attorney o the LEA unless you are accompanied by an attorney.

You and the LEA determine the relevant members o the IEP Team to attend themeeting. The purpose o the meeting is or you to discuss your due process petitionand the acts that orm the basis o the issue(s) in the petition, so that the LEA hasthe opportunity to resolve the dispute.

The resolution meeting is not necessary i:

a. You and the LEA agree in writing to waive the meeting; or

b. You and the LEA agree to use the mediation process.

IDEA requires you to meet with members othe IEP Team to try and resolve the issue(s).This is called a resolution meeting.

All o the members o the IEP Team do nothave to attend. You and the LEA make thatdecision. The LEA may not bring an attorneyto the resolution meeting unless you do.

You and the LEA may agree in writing to nothave a resolution meeting. You and the LEA

may agree to use the mediation process.

resolutIon PerIod

I the LEA has not resolved the due process petition to your satisaction within 30 dayso the receipt o the due process petition (during the time period or the resolutionprocess), the due process hearing may occur.

The 45-day timeline or issuing a fnal decision begins the day ater the 30-dayresolution period ends.

Except where you and the LEA have both agreed to waive the resolution processor to use mediation, your ailure to participate in the resolution meeting will delaythe timelines or the resolution process and due process hearing until you agree toparticipate in a meeting.

I ater making reasonable eorts and documenting such eorts, the LEA is not able toobtain your participation in the resolution meeting, the LEA may, at the end o the30-day resolution period, request that a hearing ofcer dismiss your due processpetition. Documentation o such eorts must include a record o the LEAs attempts toarrange a mutually agreed upon time and place, such as:

a. Detailed records o telephone calls made or attempted and the results othose calls;

b. Copies o correspondence sent to you and any responses received; and

c. Detailed records o visits made to your home or place o employment and theresults o those visits.

I the LEA ails to hold the resolution meeting within 15 calendar days o receivingnotice o your due process petition or ails to participate in the resolution meeting, youmay ask a hearing ofcer to order that the 45-day due process hearing timeline begin.

You and the LEA have 30 days to try andresolve the issues beore the 45-day timelinestarts or a due process hearing.

I you do not attend the resolution meeting,the judge will not hear your case, and thetimelines may be delayed until you agree toparticipate in a meeting. I you still do notattend the resolution meeting, then at theend o the 30-day resolution period the LEAcan ask the judge to dismiss your case.

The LEA must keep detailed records o itsattempts to schedule the resolution meetingwith you.

I the LEA does not hold the resolutionmeeting within 15 days rom receiving yourpetition or i the LEA does not attend themeeting, then you can ask the judge to goahead and start the 45-day hearing timeline.


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adjustments to the 30 calendar daY resolutIon PerIod

I you and the LEA agree in writing to waive the resolution meeting, then the45-day timeline or the due process hearing starts the next day.

Ater the start o mediation or the resolution meeting and beore the end o the30-day resolution period, i you and the LEA agree in writing that no agreement ispossible, then the 45-day timeline or the due process hearing starts the next day.

I you and the LEA agree to use the mediation process at the end o the 30-dayresolution period, both parties can agree in writing to continue the mediationuntil an agreement is reached. In this case, you must submit a motion to the

Administrative Law Judge (ALJ) requesting an extension and include the signedagreement to continue mediation. However, i either you or the LEA withdrawsrom the mediation process, then the 45-day timeline or the due process hearingstarts the next day.

In Other Words...The 45-day timeline begins the day ateone o these three things happens:

1. You and the LEA agree to not havethe resolution meeting;

2. You and the LEA have met and agreeresolution is impossible; or

3.You and the LEA have been given anextension to continue mediation aterthe 30-day timeline, but one party quthe mediation process.

WrItten settlement agreement

I a resolution to the dispute is reached at the resolution meeting, you and the LEAmust enter into a legally binding agreement that is:

a. Signed by you and a representative o the LEA who has the authority to bindthe LEA; and

b. Enorceable in any state court o competent jurisdiction (a state court that hasthe authority to hear this type o case), in a district court o the United States,or through a State complaint.

I you and the LEA resolve the dispute,then the agreement must be in writing andsigned. The signed agreement is legallybinding and can be enorced through thecourts or the State complaint process.

agreement revIeW PerIod

I you and the LEA enter into an agreement at the resolution meeting, either partymay void the agreement within three (3) business days o the time that both youand the LEA signed the agreement.

I you and the LEA resolve the dispute, youhave three (3) business days to change yomind. (Defnition odayis in Appendix I.)

the chIlds Placement WhIle the due Process PetItIon and hearIng are PendIng

Except as provided under the heading Dicipiar Prcedure, once a dueprocess petition is sent to the other party, during the resolution process timeperiod and while waiting or the decision o any impartial due process hearingor court proceeding, unless you and the State or LEA agree otherwise, your childmust remain in his or her current educational placement.

I the due process petition involves an application or initial admission to publicschool, your child, with your consent, must be placed in the regular public schoolprogram until the completion o all proceedings.

I the due process petition involves an application or initial services under PartB o the IDEA or your child who is or will soon turn three (3) years old and istransitioning rom being served under Part C o the IDEA because he/she is nolonger eligible or Part C services, the LEA is not required to provide the Part Cservices that your child had been receiving.

I your preschool child is ound eligible under IDEA and you consent or yourchild to receive special education and related services or the rst time, then,pending the outcome o the proceedings, the LEA must provide those specialeducation and related services that are not in dispute (those which you and theLEA both agree upon).

Except under the sub-heading SpecialCircumstances about disciplinaryprocedures, your child stays put in his/her current educational placement unless youand the LEA decide to change the placement

(Inormation about placementis in AppendixI this is the frst time your child is enrollingin public school, he/she must be placed in apublic school program, with your permissionuntil the due process hearing is over.

I your child is a preschool child and wasreceiving Inant-Toddler Program Servicesbeore turning three (3) years old, the LEAdoes not have to provide the same servicesto your child. I your child was determinedeligible or preschool special education andrelated services and you gave your permissior the services, then the LEA must provide thservices written in the IEP that you and the LEboth agree upon.


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9. HEARINGS ON DUE PROCESS PETITIONS34 CFR 300.511 and NC 1504-1.12 through NC 1504-1.14 and NC 1504-1.16

ImPartIal due Process hearIng

Whenever a due process petition is led, you or the LEA involved in the disputemust have an opportunity or an impartial due process hearing, as described underthe sub-headings Due Prce Petiti and Reuti Prce.

In Other Words...

ImPartIal hearIng offIcer

At a minimum, the Administrative Law Judge:

a. Must not be an employee o the NCDPI or the LEA that is involved in theeducation or care o your child. However, a person is not an employeeo the agency solely because he/she is paid by the agency to serve as ahearing ocer;

b. Must not have a personal or proessional interest that conficts with thehearing ocers objectivity in the hearing;

c. Must be knowledgeable and understand the provisions o the IDEA, ederalregulations, Article 9 o NC General Statutes 115C, Policies, andlegalinterpretations o the IDEA by ederal and state courts; and

d. Must have the knowledge and ability to conduct hearings, and to make andwrite decisions, consistent with appropriate, standard legal practice.

Note: In NC, the hearing ofcer is anAdministrative Law Judge (ALJ).

The judges who conduct special educationhearings must meet certain qualifcations.

subject matter of due Process hearIng

The party (you or the LEA) that requests the due process hearing may not raiseissues at the due process hearing that were not addressed in the due processpetition, unless the other party agrees.

Neither you nor the LEA can bring up issues atthe hearing that were not in your due processpetition, unless the other party agrees.

tImelIne for requestIng a hearIng

You or the LEA must request an impartial hearing by ling a due process petitionwithin e ear o the date you or the LEA knew or should have known about theissue(s) addressed in the petition.

excePtIons to the tImelIne

The above timeline does not apply to you i you could not le a due processpetition because:

a. The LEA specically misrepresented that it had resolved the problem or issuethat you are raising in your petition; or

b. The LEA withheld inormation rom you that it was required to provide to youunder IDEA.

You may not fle a due process petition orissues that are more than one (1) year old,unless the LEA misled you about solving theissues, or did not share inormation it wasrequired to give you.

hearIng rIghts general

Any party to a due process hearing (including a hearing relating todisciplinary procedures) or an appeal, as described under the sub-headingAppea f Decii ad Impartia Review has the right to:

a. Be accompanied and advised by an attorney and/or persons with specialknowledge or training about the problems o children with disabilities(NC law does not recognize a non-attorney representing a party at a dueprocess hearing);

b. Present evidence and conront, cross-examine, and require the attendance owitnesses;

c. Prohibit the introduction o any evidence at the hearing that has not beenshared with the other party at least ve (5) business days beore the hearing;

d. Obtain a written, or, at your option, electronic, word-or-word record o thehearing; and

e. Obtain written, or, at your option, electronic ndings o act and decisions.

A due process hearing is an administrativeproceeding, and you may need to bringan attorney. You or your attorney, i youhave one, have a right to present evidence,

examine or cross-examine witnessesand obtain a record o the proceedings,including the fndings o act and decision.

You may represent yoursel(pro se), but noone else may represent you unless he/shehas a license to practice law.


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addItIonal dIsclosure of InformatIon

At least ve (5) business days prior to a due process hearing, you and the LEA mustshare with each other all evaluations completed by that date and recommendationsbased on those evaluations that you or the LEA intend to use at the hearing.

A hearing ocer may prevent any party that ails to comply with this requirementrom introducing the relevant evaluation or recommendations at the hearingwithout the consent o the other party.

In Other Words...You and the LEA cannot present evidence an evaluation report at the hearing that wnot shared with the other party at least fv(5) business days beore the hearing.

Parental rIghts at hearIngs

You have the right to:

a. Have your child present;

b. Open the hearing to the public; and

c. Have the record o the hearing, the ndings o act, and decisions providedto you at no cost.

decIsIon of hearIng offIcer

The Administrative Law Judges decision on whether your child received a reeappropriate public education (FAPE) must be based on substantive grounds.

In matters alleging a procedural violation, a hearing ocer may nd that yourchild did not receive FAPE only i the procedural violations:

Interered with your childs right to a ree appropriate public education (FAPE);Signicantly interered with your opportunity to participate in the decision-

making process about the provision o a ree appropriate public education(FAPE) to your child; or

Caused a deprivation o an educational benet.

These rules do not prevent a hearing ocer rom ordering an LEA to comply withthe requirements in the Procedural Saeguards section o the Federal regulations.

I you fled the due process petition on anissue that was a violation o the procedurethe LEA is supposed to ollow, the judgehas to decide i the procedural violationprevented your child rom receiving a FAP

or making educational progress, or keptyou rom participating in making decisionabout your childs FAPE.

tImelInes and convenIence of hearIngs and revIeWs

The Oce o Administrative Hearings must ensure that no later than 45 daysater the expiration o the 30-day resolution period or, as described underthe sub-heading Adjutmet t the 30-da Reuti Perid, no later than45 days ater the expiration o the adjusted time period or resolution, a nal

decision is reached in the hearing and a copy o the decision is mailed to theLEA and you, or your attorney i you are represented by council.

A hearing ocer may grant specic extensions o these timelines, i you or theLEA make a request or a specic extension o the timeline.

Each hearing involving oral arguments must be conducted at a time and placethat is reasonably convenient to you and your child.

Ater the 30-day period or resolving theissue(s) has ended, the judge has 45 days togive you and the LEA his/her decision.

I the judge gave you and the LEA an extensi

on the 30-day timeline or resolution, thenhe/she must give you and the LEA the decisio45 days ater the end o the extension.

The judge can grant more time i you or the LEmake a specifc request or him/her to do so.

seParate request for a due Process hearIng

Nothing in the Procedural Saeguards section o the IDEA regulations can beinterpreted to prevent you rom ling a separate due process petition on an issueseparate rom a due process petition already led.

I you have fled a due process petition,you can fle another one i it is about adierent issue.

fIndIngs and decIsIon to state advIsorY Panel and general PublIcThe EC Division must provide the ndings and decisions, with any personallyidentiable inormation deleted, to the State Advisory Panel and make thosendings and decisions available to the public.

Note: In North Carolina, the State AdvisoPanel is called Council on EducationalServices or Exceptional Children.

constructIon clause

None o the provisions described above can be interpreted to prevent a hearingocer rom ordering an LEA to comply with the requirements in the ProceduralSaeguards section o the ederal regulations under IDEA. None o the provisionsunder: Fiig a Due Prce Petiti, Mde Frm, Reuti Prce, ImpartiaDue Prce Hearig, Hearig Right, ad Hearig Decii can aect your rightto le an appeal o the due process hearing decision with the EC Division.


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10. STATE-LEVEL APPEALS 34 CFR 300.514 and NC 1504-1.15 through NC 1504-1.16

fInalItY of hearIng decIsIon

A decision made in a due process hearing (including a hearing relating todisciplinary procedures) is nal, unless appealed. Either party involved in thehearing (you or the LEA) may appeal the decision to the EC Division within 30days o receipt o the decision rom the Oce o Administrative Hearings.

In Other Words...I you disagree with the judges decision ina due process hearing, you may appeal it tothe EC Division within 30 days o receivingthe decision.

aPPeal of decIsIons and ImPartIal revIeWI a party (you or the LEA) disagrees with the ndings and decision in the dueprocess hearing, the party may appeal to the EC Division.

I there is an appeal, the EC Division must appoint an impartial review ocer toconduct an impartial review o the ndings and decision appealed.

The review ocer conducting the review must:

a. Examine the entire hearing record;

b. Ensure that the procedures at the hearing were consistent with therequirements o due process;

c. Seek additional evidence i necessary. I a hearing is held to receive additionalevidence, the hearing rights described previously under the sub-headingHearig Right apply;

d. Give the parties an opportunity or oral or written argument, or both, at thediscretion o the reviewing ocial;

e. Make an independent decision on completion o the review; and

. Give you and the LEA a copy o the written or, at your option, electronicndings o act and decisions.

The EC Division will appoint an impartialState review ofcer to review the record romthe hearing. The review ofcer will examinethe record, may ask you and the LEA ormore evidence or may ask you and the LEAto present an oral or written argument.

The review ofcer will make a decision andgive the LEA and you a report.

tImelInes and convenIence of hearIngs and revIeWs

The EC Division must ensure that no later than 30 days ater the receipt o anappeal o the Administrative Law Judges decision a nal decision is reached in thereview and a copy o the decision is mailed to you and the LEA, or your attorney iyou are represented by council.

A review ocer may grant specic extensions o time beyond the periodsdescribed above (45 days or a hearing decision and 30 days or a reviewdecision) i you or the LEA make a request or a specic extension o the timeline.Each review involving oral arguments must be conducted at a time and place thatis reasonably convenient to you and your child.

The review ofcial must make a decisionand send it in writing to you and the LEAwithin 30 days o receiving the appeal.

The review ofcer can grant more time iyou or the LEA make a specifc request orhim/her to do so.

fInalItY of revIeW decIsIon

The decision made by the reviewing ocial is nal unless you or the LEA brings acivil action, as described below under the heading Civi Acti.

I you disagree with the decision the reviewofcial makes, you can fle a law suit in civilcourt. (See inormation below.)

fIndIngs and decIsIon to state advIsorY Panel and general PublIc

The EC Division, ater deleting any personally identiable inormation, mustprovide the ndings and decisions o the appeal to the State Advisory Panel andmake those ndings and decisions available to the public.

Note: In North Carolina, the State AdvisoryPanel is called the Council on EducationalServices or Exceptional Children.


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11. CIVIL ACTIONS 34 CFR 300.516 and NC 1504-1.17

Any party (you or the LEA) who does not agree with the ndings and decision bya State review ocer has the right to bring a civil action with respect to the matterthat was the subject o the due process hearing (including a hearing relating todisciplinary procedures). The action may be brought in a state court o c

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