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.