20 U.S.C. § 1415 : US Code - Section 1415: Procedural safeguards

Search 20 U.S.C. § 1415 : US Code - Section 1415: Procedural safeguards

(a) Establishment of procedures
Any State educational agency, State agency, or local educational
agency that receives assistance under this subchapter shall
establish and maintain procedures in accordance with this section
to ensure that children with disabilities and their parents are
guaranteed procedural safeguards with respect to the provision of a
free appropriate public education by such agencies.
(b) Types of procedures
The procedures required by this section shall include the
following:
(1) An opportunity for the parents of a child with a disability
to examine all records relating to such child and to participate
in meetings with respect to the identification, evaluation, and
educational placement of the child, and the provision of a free
appropriate public education to such child, and to obtain an
independent educational evaluation of the child.
(2)(A) Procedures to protect the rights of the child whenever
the parents of the child are not known, the agency cannot, after
reasonable efforts, locate the parents, or the child is a ward of
the State, including the assignment of an individual to act as a
surrogate for the parents, which surrogate shall not be an
employee of the State educational agency, the local educational
agency, or any other agency that is involved in the education or
care of the child. In the case of -
(i) a child who is a ward of the State, such surrogate may
alternatively be appointed by the judge overseeing the child's
care provided that the surrogate meets the requirements of this
paragraph; and
(ii) an unaccompanied homeless youth as defined in section
11434a(6) of title 42, the local educational agency shall
appoint a surrogate in accordance with this paragraph.
(B) The State shall make reasonable efforts to ensure the
assignment of a surrogate not more than 30 days after there is a
determination by the agency that the child needs a surrogate.
(3) Written prior notice to the parents of the child, in
accordance with subsection (c)(1), whenever the local educational
agency -
(A) proposes to initiate or change; or
(B) refuses to initiate or change,
the identification, evaluation, or educational placement of the
child, or the provision of a free appropriate public education to
the child.
(4) Procedures designed to ensure that the notice required by
paragraph (3) is in the native language of the parents, unless it
clearly is not feasible to do so.
(5) An opportunity for mediation, in accordance with subsection
(e).
(6) An opportunity for any party to present a complaint -
(A) with respect to any matter relating to the
identification, evaluation, or educational placement of the
child, or the provision of a free appropriate public education
to such child; and
(B) which sets forth an alleged violation that occurred not
more than 2 years before the date the parent or public agency
knew or should have known about the alleged action that forms
the basis of the complaint, or, if the State has an explicit
time limitation for presenting such a complaint under this
subchapter, in such time as the State law allows, except that
the exceptions to the timeline described in subsection
(f)(3)(D) shall apply to the timeline described in this
subparagraph.
(7)(A) Procedures that require either party, or the attorney
representing a party, to provide due process complaint notice in
accordance with subsection (c)(2) (which shall remain
confidential) -
(i) to the other party, in the complaint filed under
paragraph (6), and forward a copy of such notice to the State
educational agency; and
(ii) that shall include -
(I) the name of the child, the address of the residence of
the child (or available contact information in the case of a
homeless child), and the name of the school the child is
attending;
(II) in the case of a homeless child or youth (within the
meaning of section 11434a(2) of title 42), available contact
information for the child and the name of the school the
child is attending;
(III) a description of the nature of the problem of the
child relating to such proposed initiation or change,
including facts relating to such problem; and
(IV) a proposed resolution of the problem to the extent
known and available to the party at the time.
(B) A requirement that a party may not have a due process
hearing until the party, or the attorney representing the party,
files a notice that meets the requirements of subparagraph
(A)(ii).
(8) Procedures that require the State educational agency to
develop a model form to assist parents in filing a complaint and
due process complaint notice in accordance with paragraphs (6)
and (7), respectively.
(c) Notification requirements
(1) Content of prior written notice
The notice required by subsection (b)(3) shall include -
(A) a description of the action proposed or refused by the
agency;
(B) an explanation of why the agency proposes or refuses to
take the action and a description of each evaluation procedure,
assessment, record, or report the agency used as a basis for
the proposed or refused action;
(C) a statement that the parents of a child with a disability
have protection under the procedural safeguards of this
subchapter 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;
(D) sources for parents to contact to obtain assistance in
understanding the provisions of this subchapter;
(E) a description of other options considered by the IEP Team
and the reason why those options were rejected; and
(F) a description of the factors that are relevant to the
agency's proposal or refusal.
(2) Due process complaint notice
(A) Complaint
The due process complaint notice required under subsection
(b)(7)(A) shall be deemed to be sufficient unless the party
receiving the notice notifies the hearing officer and the other
party in writing that the receiving party believes the notice
has not met the requirements of subsection (b)(7)(A).
(B) Response to complaint
(i) Local educational agency response
(I) In general
If the local educational agency has not sent a prior
written notice to the parent regarding the subject matter
contained in the parent's due process complaint notice,
such local educational agency shall, within 10 days of
receiving the complaint, send to the parent a response that
shall include -
(aa) an explanation of why the agency proposed or
refused to take the action raised in the complaint;
(bb) a description of other options that the IEP Team
considered and the reasons why those options were
rejected;
(cc) a description of each evaluation procedure,
assessment, record, or report the agency used as the
basis for the proposed or refused action; and
(dd) a description of the factors that are relevant to
the agency's proposal or refusal.
(II) Sufficiency
A response filed by a local educational agency pursuant
to subclause (I) shall not be construed to preclude such
local educational agency from asserting that the parent's
due process complaint notice was insufficient where
appropriate.
(ii) Other party response
Except as provided in clause (i), the non-complaining party
shall, within 10 days of receiving the complaint, send to the
complaint a response that specifically addresses the issues
raised in the complaint.
(C) Timing
The party providing a hearing officer notification under
subparagraph (A) shall provide the notification within 15 days
of receiving the complaint.
(D) Determination
Within 5 days of receipt of the notification provided under
subparagraph (C), the hearing officer shall make a
determination on the face of the notice of whether the
notification meets the requirements of subsection (b)(7)(A),
and shall immediately notify the parties in writing of such
determination.
(E) Amended complaint notice
(i) In general
A party may amend its due process complaint notice only if -

(I) the other party consents in writing to such amendment
and is given the opportunity to resolve the complaint
through a meeting held pursuant to subsection (f)(1)(B); or
(II) the hearing officer grants permission, except that
the hearing officer may only grant such permission at any
time not later than 5 days before a due process hearing
occurs.
(ii) Applicable timeline
The applicable timeline for a due process hearing under
this subchapter shall recommence at the time the party files
an amended notice, including the timeline under subsection
(f)(1)(B).
(d) Procedural safeguards notice
(1) In general
(A) Copy to parents
A copy of the procedural safeguards available to the parents
of a child with a disability shall be given to the parents only
1 time a year, except that a copy also shall be given to the
parents -
(i) upon initial referral or parental request for
evaluation;
(ii) upon the first occurrence of the filing of a complaint
under subsection (b)(6); and
(iii) upon request by a parent.
(B) Internet website
A local educational agency may place a current copy of the
procedural safeguards notice on its Internet website if such
website exists.
(2) Contents
The procedural safeguards notice shall include a full
explanation of the procedural safeguards, written in the native
language of the parents (unless it clearly is not feasible to do
so) and written in an easily understandable manner, available
under this section and under regulations promulgated by the
Secretary relating to -
(A) independent educational evaluation;
(B) prior written notice;
(C) parental consent;
(D) access to educational records;
(E) the opportunity to present and resolve complaints,
including -
(i) the time period in which to make a complaint;
(ii) the opportunity for the agency to resolve the
complaint; and
(iii) the availability of mediation;
(F) the child's placement during pendency of due process
proceedings;
(G) procedures for students who are subject to placement in
an interim alternative educational setting;
(H) requirements for unilateral placement by parents of
children in private schools at public expense;
(I) due process hearings, including requirements for
disclosure of evaluation results and recommendations;
(J) State-level appeals (if applicable in that State);
(K) civil actions, including the time period in which to file
such actions; and
(L) attorneys' fees.
(e) Mediation
(1) In general
Any State educational agency or local educational agency that
receives assistance under this subchapter shall ensure that
procedures are established and implemented to allow parties to
disputes involving any matter, including matters arising prior to
the filing of a complaint pursuant to subsection (b)(6), to
resolve such disputes through a mediation process.
(2) Requirements
Such procedures shall meet the following requirements:
(A) The procedures shall ensure that the mediation process -
(i) is voluntary on the part of the parties;
(ii) is not used to deny or delay a parent's right to a due
process hearing under subsection (f), or to deny any other
rights afforded under this subchapter; and
(iii) is conducted by a qualified and impartial mediator
who is trained in effective mediation techniques.
(B) Opportunity to meet with a disinterested party. - A local
educational agency or a State agency may establish procedures
to offer to parents and schools that choose not to use the
mediation process, an opportunity to meet, at a time and
location convenient to the parents, with a disinterested party
who is under contract with -
(i) a parent training and information center or community
parent resource center in the State established under section
1471 or 1472 of this title; or
(ii) an appropriate alternative dispute resolution entity,
to encourage the use, and explain the benefits, of the
mediation process to the parents.
(C) List of qualified mediators. - The State shall maintain a
list of individuals who are qualified mediators and
knowledgeable in laws and regulations relating to the provision
of special education and related services.
(D) Costs. - The State shall bear the cost of the mediation
process, including the costs of meetings described in
subparagraph (B).
(E) Scheduling and location. - Each session in the mediation
process shall be scheduled in a timely manner and shall be held
in a location that is convenient to the parties to the dispute.
(F) Written agreement. - In the case that a resolution is
reached to resolve the complaint through the mediation process,
the parties shall execute a legally binding agreement that sets
forth such resolution and that -
(i) states that all discussions that occurred during the
mediation process shall be confidential and may not be used
as evidence in any subsequent due process hearing or civil
proceeding;
(ii) is signed by both the parent and a representative of
the agency who has the authority to bind such agency; and
(iii) is enforceable in any State court of competent
jurisdiction or in a district court of the United States.
(G) Mediation discussions. - Discussions that occur during
the mediation process shall be confidential and may not be used
as evidence in any subsequent due process hearing or civil
proceeding.
(f) Impartial due process hearing
(1) In general
(A) Hearing
Whenever a complaint has been received under subsection
(b)(6) or (k), the parents or the local educational agency
involved in such complaint shall have an opportunity for an
impartial due process hearing, which shall be conducted by the
State educational agency or by the local educational agency, as
determined by State law or by the State educational agency.
(B) Resolution session
(i) Preliminary meeting
Prior to the opportunity for an impartial due process
hearing under subparagraph (A), the local educational agency
shall convene a meeting with the parents and the relevant
member or members of the IEP Team who have specific knowledge
of the facts identified in the complaint -
(I) within 15 days of receiving notice of the parents'
complaint;
(II) which shall include a representative of the agency
who has decisionmaking authority on behalf of such agency;
(III) which may not include an attorney of the local
educational agency unless the parent is accompanied by an
attorney; and
(IV) where the parents of the child discuss their
complaint, and the facts that form the basis of the
complaint, and the local educational agency is provided the
opportunity to resolve the complaint,
unless the parents and the local educational agency agree in
writing to waive such meeting, or agree to use the mediation
process described in subsection (e).
(ii) Hearing
If the local educational agency has not resolved the
complaint to the satisfaction of the parents within 30 days
of the receipt of the complaint, the due process hearing may
occur, and all of the applicable timelines for a due process
hearing under this subchapter shall commence.
(iii) Written settlement agreement
In the case that a resolution is reached to resolve the
complaint at a meeting described in clause (i), the parties
shall execute a legally binding agreement that is -
(I) signed by both the parent and a representative of the
agency who has the authority to bind such agency; and
(II) enforceable in any State court of competent
jurisdiction or in a district court of the United States.
(iv) Review period
If the parties execute an agreement pursuant to clause
(iii), a party may void such agreement within 3 business days
of the agreement's execution.
(2) Disclosure of evaluations and recommendations
(A) In general
Not less than 5 business days prior to a hearing conducted
pursuant to paragraph (1), each party shall disclose to all
other parties all evaluations completed by that date, and
recommendations based on the offering party's evaluations, that
the party intends to use at the hearing.
(B) Failure to disclose
A hearing officer may bar any party that fails to comply with
subparagraph (A) from introducing the relevant evaluation or
recommendation at the hearing without the consent of the other
party.
(3) Limitations on hearing
(A) Person conducting hearing
A hearing officer conducting a hearing pursuant to paragraph
(1)(A) shall, at a minimum -
(i) not be -
(I) an employee of the State educational agency or the
local educational agency involved in the education or care
of the child; or
(II) a person having a personal or professional interest
that conflicts with the person's objectivity in the
hearing;
(ii) possess knowledge of, and the ability to understand,
the provisions of this chapter, Federal and State regulations
pertaining to this chapter, and legal interpretations of this
chapter by Federal and State courts;
(iii) possess the knowledge and ability to conduct hearings
in accordance with appropriate, standard legal practice; and
(iv) possess the knowledge and ability to render and write
decisions in accordance with appropriate, standard legal
practice.
(B) Subject matter of hearing
The party requesting the due process hearing shall not be
allowed to raise issues at the due process hearing that were
not raised in the notice filed under subsection (b)(7), unless
the other party agrees otherwise.
(C) Timeline for requesting hearing
A parent or agency shall request an impartial due process
hearing within 2 years of the date the parent or agency knew or
should have known about the alleged action that forms the basis
of the complaint, or, if the State has an explicit time
limitation for requesting such a hearing under this subchapter,
in such time as the State law allows.
(D) Exceptions to the timeline
The timeline described in subparagraph (C) shall not apply to
a parent if the parent was prevented from requesting the
hearing due to -
(i) specific misrepresentations by the local educational
agency that it had resolved the problem forming the basis of
the complaint; or
(ii) the local educational agency's withholding of
information from the parent that was required under this
subchapter to be provided to the parent.
(E) Decision of hearing officer
(i) In general
Subject to clause (ii), a decision made by a hearing
officer shall be made on substantive grounds based on a
determination of whether the child received a free
appropriate public education.
(ii) Procedural issues
In matters alleging a procedural violation, a hearing
officer may find that a child did not receive a free
appropriate public education only if the procedural
inadequacies -
(I) impeded the child's right to a free appropriate
public education;
(II) significantly impeded the parents' opportunity to
participate in the decisionmaking process regarding the
provision of a free appropriate public education to the
parents' child; or
(III) caused a deprivation of educational benefits.
(iii) Rule of construction
Nothing in this subparagraph shall be construed to preclude
a hearing officer from ordering a local educational agency to
comply with procedural requirements under this section.
(F) Rule of construction
Nothing in this paragraph shall be construed to affect the
right of a parent to file a complaint with the State
educational agency.
(g) Appeal
(1) In general
If the hearing required by subsection (f) is conducted by a
local educational agency, any party aggrieved by the findings and
decision rendered in such a hearing may appeal such findings and
decision to the State educational agency.
(2) Impartial review and independent decision
The State educational agency shall conduct an impartial review
of the findings and decision appealed under paragraph (1). The
officer conducting such review shall make an independent decision
upon completion of such review.
(h) Safeguards
Any party to a hearing conducted pursuant to subsection (f) or
(k), or an appeal conducted pursuant to subsection (g), shall be
accorded -
(1) the right to be accompanied and advised by counsel and by
individuals with special knowledge or training with respect to
the problems of children with disabilities;
(2) the right to present evidence and confront, cross-examine,
and compel the attendance of witnesses;
(3) the right to a written, or, at the option of the parents,
electronic verbatim record of such hearing; and
(4) the right to written, or, at the option of the parents,
electronic findings of fact and decisions, which findings and
decisions -
(A) shall be made available to the public consistent with the
requirements of section 1417(b) of this title (relating to the
confidentiality of data, information, and records); and
(B) shall be transmitted to the advisory panel established
pursuant to section 1412(a)(21) of this title.
(i) Administrative procedures
(1) In general
(A) Decision made in hearing
A decision made in a hearing conducted pursuant to subsection
(f) or (k) shall be final, except that any party involved in
such hearing may appeal such decision under the provisions of
subsection (g) and paragraph (2).
(B) Decision made at appeal
A decision made under subsection (g) shall be final, except
that any party may bring an action under paragraph (2).
(2) Right to bring civil action
(A) In general
Any party aggrieved by the findings and decision made under
subsection (f) or (k) who does not have the right to an appeal
under subsection (g), and any party aggrieved by the findings
and decision made under this subsection, shall have the right
to bring a civil action with respect to the complaint presented
pursuant to this section, which action may be brought in any
State court of competent jurisdiction or in a district court of
the United States, without regard to the amount in controversy.
(B) Limitation
The party bringing the action shall have 90 days from the
date of the decision of the hearing officer to bring such an
action, or, if the State has an explicit time limitation for
bringing such action under this subchapter, in such time as the
State law allows.
(C) Additional requirements
In any action brought under this paragraph, the court -
(i) shall receive the records of the administrative
proceedings;
(ii) shall hear additional evidence at the request of a
party; and
(iii) basing its decision on the preponderance of the
evidence, shall grant such relief as the court determines is
appropriate.
(3) Jurisdiction of district courts; attorneys' fees
(A) In general
The district courts of the United States shall have
jurisdiction of actions brought under this section without
regard to the amount in controversy.
(B) Award of attorneys' fees
(i) In general
In any action or proceeding brought under this section, the
court, in its discretion, may award reasonable attorneys'
fees as part of the costs -
(I) to a prevailing party who is the parent of a child
with a disability;
(II) to a prevailing party who is a State educational
agency or local educational agency against the attorney of
a parent who files a complaint or subsequent cause of
action that is frivolous, unreasonable, or without
foundation, or against the attorney of a parent who
continued to litigate after the litigation clearly became
frivolous, unreasonable, or without foundation; or
(III) to a prevailing State educational agency or local
educational agency against the attorney of a parent, or
against the parent, if the parent's complaint or subsequent
cause of action was presented for any improper purpose,
such as to harass, to cause unnecessary delay, or to
needlessly increase the cost of litigation.
(ii) Rule of construction
Nothing in this subparagraph shall be construed to affect
section 327 of the District of Columbia Appropriations Act,
2005.
(C) Determination of amount of attorneys' fees
Fees awarded under this paragraph shall be based on rates
prevailing in the community in which the action or proceeding
arose for the kind and quality of services furnished. No bonus
or multiplier may be used in calculating the fees awarded under
this subsection.
(D) Prohibition of attorneys' fees and related costs for
certain services
(i) In general
Attorneys' fees may not be awarded and related costs may
not be reimbursed in any action or proceeding under this
section for services performed subsequent to the time of a
written offer of settlement to a parent if -
(I) the offer is made within the time prescribed by Rule
68 of the Federal Rules of Civil Procedure or, in the case
of an administrative proceeding, at any time more than 10
days before the proceeding begins;
(II) the offer is not accepted within 10 days; and
(III) the court or administrative hearing officer finds
that the relief finally obtained by the parents is not more
favorable to the parents than the offer of settlement.
(ii) IEP Team meetings
Attorneys' fees may not be awarded relating to any meeting
of the IEP Team unless such meeting is convened as a result
of an administrative proceeding or judicial action, or, at
the discretion of the State, for a mediation described in
subsection (e).
(iii) Opportunity to resolve complaints
A meeting conducted pursuant to subsection (f)(1)(B)(i)
shall not be considered -
(I) a meeting convened as a result of an administrative
hearing or judicial action; or
(II) an administrative hearing or judicial action for
purposes of this paragraph.
(E) Exception to prohibition on attorneys' fees and related
costs
Notwithstanding subparagraph (D), an award of attorneys' fees
and related costs may be made to a parent who is the prevailing
party and who was substantially justified in rejecting the
settlement offer.
(F) Reduction in amount of attorneys' fees
Except as provided in subparagraph (G), whenever the court
finds that -
(i) the parent, or the parent's attorney, during the course
of the action or proceeding, unreasonably protracted the
final resolution of the controversy;
(ii) the amount of the attorneys' fees otherwise authorized
to be awarded unreasonably exceeds the hourly rate prevailing
in the community for similar services by attorneys of
reasonably comparable skill, reputation, and experience;
(iii) the time spent and legal services furnished were
excessive considering the nature of the action or proceeding;
or
(iv) the attorney representing the parent did not provide
to the local educational agency the appropriate information
in the notice of the complaint described in subsection
(b)(7)(A),
the court shall reduce, accordingly, the amount of the
attorneys' fees awarded under this section.
(G) Exception to reduction in amount of attorneys' fees
The provisions of subparagraph (F) shall not apply in any
action or proceeding if the court finds that the State or local
educational agency unreasonably protracted the final resolution
of the action or proceeding or there was a violation of this
section.
(j) Maintenance of current educational placement
Except as provided in subsection (k)(4), during the pendency of
any proceedings conducted pursuant to this section, unless the
State or local educational agency and the parents otherwise agree,
the child shall remain in the then-current educational placement of
the child, or, if applying for initial admission to a public
school, shall, with the consent of the parents, be placed in the
public school program until all such proceedings have been
completed.
(k) Placement in alternative educational setting
(1) Authority of school personnel
(A) Case-by-case determination
School personnel may consider any unique circumstances on a
case-by-case basis when determining whether to order a change
in placement for a child with a disability who violates a code
of student conduct.
(B) Authority
School personnel under this subsection may remove a child
with a disability who violates a code of student conduct from
their current placement to an appropriate interim alternative
educational setting, another setting, or suspension, for not
more than 10 school days (to the extent such alternatives are
applied to children without disabilities).
(C) Additional authority
If school personnel seek to order a change in placement that
would exceed 10 school days and the behavior that gave rise to
the violation of the school code is determined not to be a
manifestation of the child's disability pursuant to
subparagraph (E), the relevant disciplinary procedures
applicable to children without disabilities may be applied to
the child in the same manner and for the same duration in which
the procedures would be applied to children without
disabilities, except as provided in section 1412(a)(1) of this
title although it may be provided in an interim alternative
educational setting.
(D) Services
A child with a disability who is removed from the child's
current placement under subparagraph (G) (irrespective of
whether the behavior is determined to be a manifestation of the
child's disability) or subparagraph (C) shall -
(i) continue to receive educational services, as provided
in section 1412(a)(1) of this title, so as to enable the
child to continue to participate in the general education
curriculum, although in another setting, and to progress
toward meeting the goals set out in the child's IEP; and
(ii) receive, as appropriate, a functional behavioral
assessment, behavioral intervention services and
modifications, that are designed to address the behavior
violation so that it does not recur.
(E) Manifestation determination
(i) In general
Except as provided in subparagraph (B), within 10 school
days of any decision to change the placement of a child with
a disability because of a violation of a code of student
conduct, the local educational agency, the parent, and
relevant members of the IEP Team (as determined by the parent
and the local educational agency) shall review all relevant
information in the student's file, including the child's IEP,
any teacher observations, and any relevant information
provided by the parents to determine -
(I) if the conduct in question was caused by, or had a
direct and substantial relationship to, the child's
disability; or
(II) if the conduct in question was the direct result of
the local educational agency's failure to implement the
IEP.
(ii) Manifestation
If the local educational agency, the parent, and relevant
members of the IEP Team determine that either subclause (I)
or (II) of clause (i) is applicable for the child, the
conduct shall be determined to be a manifestation of the
child's disability.
(F) Determination that behavior was a manifestation
If the local educational agency, the parent, and relevant
members of the IEP Team make the determination that the conduct
was a manifestation of the child's disability, the IEP Team
shall -
(i) conduct a functional behavioral assessment, and
implement a behavioral intervention plan for such child,
provided that the local educational agency had not conducted
such assessment prior to such determination before the
behavior that resulted in a change in placement described in
subparagraph (C) or (G);
(ii) in the situation where a behavioral intervention plan
has been developed, review the behavioral intervention plan
if the child already has such a behavioral intervention plan,
and modify it, as necessary, to address the behavior; and
(iii) except as provided in subparagraph (G), return the
child to the placement from which the child was removed,
unless the parent and the local educational agency agree to a
change of placement as part of the modification of the
behavioral intervention plan.
(G) Special circumstances
School personnel may remove a student to an interim
alternative educational setting for not more than 45 school
days without regard to whether the behavior is determined to be
a manifestation of the child's disability, in cases where a
child -
(i) carries or possesses a weapon to or at school, on
school premises, or to or at a school function under the
jurisdiction of a State or local educational agency;
(ii) knowingly possesses or uses illegal drugs, or sells or
solicits the sale of a controlled substance, while at school,
on school premises, or at a school function under the
jurisdiction of a State or local educational agency; or
(iii) has inflicted serious bodily injury upon another
person while at school, on school premises, or at a school
function under the jurisdiction of a State or local
educational agency.
(H) Notification
Not later than the date on which the decision to take
disciplinary action is made, the local educational agency shall
notify the parents of that decision, and of all procedural
safeguards accorded under this section.
(2) Determination of setting
The interim alternative educational setting in subparagraphs
(C) and (G) of paragraph (1) shall be determined by the IEP Team.
(3) Appeal
(A) In general
The parent of a child with a disability who disagrees with
any decision regarding placement, or the manifestation
determination under this subsection, or a local educational
agency that believes that maintaining the current placement of
the child is substantially likely to result in injury to the
child or to others, may request a hearing.
(B) Authority of hearing officer
(i) In general
A hearing officer shall hear, and make a determination
regarding, an appeal requested under subparagraph (A).
(ii) Change of placement order
In making the determination under clause (i), the hearing
officer may order a change in placement of a child with a
disability. In such situations, the hearing officer may -
(I) return a child with a disability to the placement
from which the child was removed; or
(II) order a change in placement of a child with a
disability to an appropriate interim alternative
educational setting for not more than 45 school days if the
hearing officer determines that maintaining the current
placement of such child is substantially likely to result
in injury to the child or to others.
(4) Placement during appeals
When an appeal under paragraph (3) has been requested by either
the parent or the local educational agency -
(A) the child shall remain in the interim alternative
educational setting pending the decision of the hearing officer
or until the expiration of the time period provided for in
paragraph (1)(C), whichever occurs first, unless the parent and
the State or local educational agency agree otherwise; and
(B) the State or local educational agency shall arrange for
an expedited hearing, which shall occur within 20 school days
of the date the hearing is requested and shall result in a
determination within 10 school days after the hearing.
(5) Protections for children not yet eligible for special
education and related services
(A) In general
A child who has not been determined to be eligible for
special education and related services under this subchapter
and who has engaged in behavior that violates a code of student
conduct, may assert any of the protections provided for in this
subchapter if the local educational agency had knowledge (as
determined in accordance with this paragraph) that the child
was a child with a disability before the behavior that
precipitated the disciplinary action occurred.
(B) Basis of knowledge
A local educational agency shall be deemed to have knowledge
that a child is a child with a disability if, before the
behavior that precipitated the disciplinary action occurred -
(i) the parent of the child has expressed concern in
writing to supervisory or administrative personnel of the
appropriate educational agency, or a teacher of the child,
that the child is in need of special education and related
services;
(ii) the parent of the child has requested an evaluation of
the child pursuant to section 1414(a)(1)(B) of this title; or
(iii) the teacher of the child, or other personnel of the
local educational agency, has expressed specific concerns
about a pattern of behavior demonstrated by the child,
directly to the director of special education of such agency
or to other supervisory personnel of the agency.
(C) Exception
A local educational agency shall not be deemed to have
knowledge that the child is a child with a disability if the
parent of the child has not allowed an evaluation of the child
pursuant to section 1414 of this title or has refused services
under this subchapter or the child has been evaluated and it
was determined that the child was not a child with a disability
under this subchapter.
(D) Conditions that apply if no basis of knowledge
(i) In general
If a local educational agency does not have knowledge that
a child is a child with a disability (in accordance with
subparagraph (B) or (C)) prior to taking disciplinary
measures against the child, the child may be subjected to
disciplinary measures applied to children without
disabilities who engaged in comparable behaviors consistent
with clause (ii).
(ii) Limitations
If a request is made for an evaluation of a child during
the time period in which the child is subjected to
disciplinary measures under this subsection, the evaluation
shall be conducted in an expedited manner. If the child is
determined to be a child with a disability, taking into
consideration information from the evaluation conducted by
the agency and information provided by the parents, the
agency shall provide special education and related services
in accordance with this subchapter, except that, pending the
results of the evaluation, the child shall remain in the
educational placement determined by school authorities.
(6) Referral to and action by law enforcement and judicial
authorities
(A) Rule of construction
Nothing in this subchapter shall be construed to prohibit an
agency from reporting a crime committed by a child with a
disability to appropriate authorities or to prevent State law
enforcement and judicial authorities from exercising their
responsibilities with regard to the application of Federal and
State law to crimes committed by a child with a disability.
(B) Transmittal of records
An agency reporting a crime committed by a child with a
disability shall ensure that copies of the special education
and disciplinary records of the child are transmitted for
consideration by the appropriate authorities to whom the agency
reports the crime.
(7) Definitions
In this subsection:
(A) Controlled substance
The term "controlled substance" means a drug or other
substance identified under schedule I, II, III, IV, or V in
section 202(c) of the Controlled Substances Act (21 U.S.C.
812(c)).
(B) Illegal drug
The term "illegal drug" means a controlled substance but does
not include a controlled substance that is legally possessed or
used under the supervision of a licensed health-care
professional or that is legally possessed or used under any
other authority under that Act [21 U.S.C. 801 et seq.] or under
any other provision of Federal law.
(C) Weapon
The term "weapon" has the meaning given the term "dangerous
weapon" under section 930(g)(2) of title 18.
(D) Serious bodily injury
The term "serious bodily injury" has the meaning given the
term "serious bodily injury" under paragraph (3) of subsection
(h) of section 1365 of title 18.
(l) Rule of construction
Nothing in this chapter shall be construed to restrict or limit
the rights, procedures, and remedies available under the
Constitution, the Americans with Disabilities Act of 1990 [42
U.S.C. 12101 et seq.], title V of the Rehabilitation Act of 1973
[29 U.S.C. 790 et seq.], or other Federal laws protecting the
rights of children with disabilities, except that before the filing
of a civil action under such laws seeking relief that is also
available under this subchapter, the procedures under subsections
(f) and (g) shall be exhausted to the same extent as would be
required had the action been brought under this subchapter.
(m) Transfer of parental rights at age of majority
(1) In general
A State that receives amounts from a grant under this
subchapter may provide that, when a child with a disability
reaches the age of majority under State law (except for a child
with a disability who has been determined to be incompetent under
State law) -
(A) the agency shall provide any notice required by this
section to both the individual and the parents;
(B) all other rights accorded to parents under this
subchapter transfer to the child;
(C) the agency shall notify the individual and the parents of
the transfer of rights; and
(D) all rights accorded to parents under this subchapter
transfer to children who are incarcerated in an adult or
juvenile Federal, State, or local correctional institution.
(2) Special rule
If, under State law, a child with a disability who has reached
the age of majority under State law, who has not been determined
to be incompetent, but who is determined not to have the ability
to provide informed consent with respect to the educational
program of the child, the State shall establish procedures for
appointing the parent of the child, or if the parent is not
available, another appropriate individual, to represent the
educational interests of the child throughout the period of
eligibility of the child under this subchapter.
(n) Electronic mail
A parent of a child with a disability may elect to receive
notices required under this section by an electronic mail (e-mail)
communication, if the agency makes such option available.
(o) Separate complaint
Nothing in this section shall be construed to preclude a parent
from filing a separate due process complaint on an issue separate
from a due process complaint already filed.