The Individuals with Disabilities Education Act includes a section entitled "Procedural Safeguards". These safeguards are designed to protect the rights of children with disabilities and their parents. They also provide families and schools the means for resolving disputes that may arise throughout the special education process.
Each District shall provide a copy of New Hampshire Procedural Safeguards in Special Education in an easily understandable manner to the parents of a child with a disability at least one time per year. This is typically done at each annual IEP Team meeting. A copy shall also be given to the parents at a minimum upon:
1. Initial referral for evaluation or parental request for an evaluation
2. The first time in a school year that a request for a due process hearing filed
3. The first time in a school year a complaint is filed
4. In accordance with the discipline procedures in 34 CFR 300.530(h)
5. Upon request by a parent
Each District shall ensure that the parents of children with disabilities are afforded all of the rights and procedural safeguards contained in federal law and described in the NH Rules (Ed 1120.01-.08) including, but not limited to, the right to:
- Receive written prior notice of any action regarding their child which the District proposes or refuses;
- Grant or refuse consent for any District action regarding their child;
- Obtain an independent educational evaluation;
- Appeal specific proposals of the District regarding their child, and
- File a complaint
All of the rights and guarantees included under procedural safeguards shall apply to parents, adult students, and public agencies, which include school districts. These rights shall be transferred to children with disabilities who are emancipated minors or who have attained the age of 18 years and have not been adjudicated as incompetent by a court.
Please Note: A parent, as defined in Ed 1102.04(h), or an adult student may authorize an individual to act on their behalf pursuant to a duly executed power of attorney (Ed 1120.01 (c)).
Written Prior Notice
Parents will be officially notified in writing any time the School District:
- Proposes to initiate or change the identification, evaluation or educational placement of the child or the provision of a free and appropriate public education to the child; or
- Refuses to initiate or change the identification, evaluation or educational placement of the child or the provision of a free and appropriate public education to the child.
The notification shall include:
- A description of the action proposed or refused by the District
- An explanation of why the agency proposes or refuses to take the action
- A description of each evaluation, procedure, assessment, record or report the District used as basis for the proposed or refused action;
- A statement that the parents of the child with disabilities have protections under the procedural safeguards of IDEA (if this notice is not an initial referral for evaluation, the means by which a copy of the description of the procedural safeguards can be obtained);
- Sources for parents to contact to obtain assistance in understanding the provisions of the law;
- A description of the other options that the IEP Team considered and the reasons why those options were rejected; and
- A description of other factors relevant to the District's proposal or refusal.
Each School District shall obtain informed, written consent from the parent of a child with a disability prior to:
- Conducting an initial evaluation;
- Initial provision of special education and related services to a child with a disability and the annual renewal of the IEP and placement of a child with a disability;
- Determining or changing the disability classification;
- Changing the nature or extent of the special education or special education and related services; or
- Conducting a re-evaluation;
- Annual access to public insurance or when changes in services paid by public insurance are made; and
- Each time the District proposes to access the public insurance.
Parents of children with disabilities shall have 14 days after the receipt of written prior notice to sign documents included with the notice to indicate consent, consent with conditions, or denial of consent. The 14-day time limit shall be extended if the District and parent mutually agree to an extension.
Each School District shall advise the parent in writing of the necessity of signing documents that describe actions requiring the parent's consent for the purpose of ensuring the timely provision of appropriate services. Additionally, the Keene School District shall advise the parent of the right to access all of the rights and procedures outlined in this section if the parent disagrees with a proposal that the District makes.
Each School District shall take reasonable measures to obtain consent including, but not limited to phone contact, and letters. The Keene School District shall document all contacts made or attempted and the results of these contacts. Copies of all letters and responses received shall be kept in the student's confidential file.
A copy of any document the parent gives consent in writing shall be provided to the parent, and a copy of such document shall also be placed in the child's educational records.
Should a parent either deny consent or not respond to a request for written consent, the School District is required to respond in the following ways:
The LEA is required to obtain informed consent for the initial evaluation. If a parent fails to respond after reasonable efforts to secure consent or refuses consent to a proposal included in Ed 1120.04(a)(1) the LEA shall have the authority to pursue the initial evaluation by the initiation of a due process hearing under Ed 1123. (Ed 1120.05(c))
Initial provision of services
The LEA is required to obtain informed consent prior to the initial provision of services. If a parent refuses consent or fails to respond for the initial provision of special education services, the LEA shall not pursue the initial provision of special education services by initiating a due process hearing under Ed 1123.
Re-evaluation and Continuation of Services
The LEA is required to obtain informed consent for both the re-evaluation and continuation of services. If the parent fails to respond within 14 days of the request for consent, the LEA shall implement the proposed changes after the LEA has taken reasonable measures to obtain informed written consent. If the parent refuses consent for a re-evaluation or the continuation of services, the LEA may pursue the re-evaluation or continuation of services through dispute resolution processes.
Revocation of Parent Consent for Services
If, at any time subsequent to the initial provision of special education and related services, the parent revokes consent in writing for the continued provision of special education and related services, pursuant to 34 CFR 300.300(b)(4) the school district:
- Must provide a written prior notice that the school district will be discontinuing all special education and related services;
- Must discontinue all special education services;
- Must not use mediation or due process procedures to obtain an agreement;
- Shall not be considered in violation of the requirement to provide FAPE;
- Shall not be required to convene an IEP Team. When you revoke consent in writing, the District is prohibited from providing all special education services.
The public agency shall not use a parent's refusal to consent to one service or activity to deny the child services, benefits, or activities that the parent has agreed to.
Other Consent Areas
Public or Private Insurance - At a minimum, the District must obtain informed parent consent the first time it seeks to access the child's public insurance. The LEA must notify the parents that the refusal to allow access to their public or private insurance does not relieve the public agency of its responsibility to ensure that all required services are provided at no cost to the parents. School Districts may not initiate dispute resolution processes if a parent refuses to grant consent.
Release of Records - The LEA must obtain informed consent for the release of education records. If the parent or the eligible child refuses consent, the District may initiate a court proceeding to obtain a court order if it still wishes to disclose the information.
Independent Education Evaluation
Parents shall have the right to request an independent evaluation at the School District's expense if they disagree with an evaluation conducted by the District. If parents request an independent educational evaluation at public expense, the School District shall either initiate a due process hearing to show that its evaluation is appropriate or ensure that an independent educational evaluation is provided at public expense, unless it has demonstrated at a hearing that the evaluation obtained by the parent does not meet the District's criteria.
If a parent obtains an independent educational evaluation at private expense, the School District must consider the results of the evaluation if it meets the District's criteria. If an independent educational evaluation is at public expense, the criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, must be the same as the criteria that the School District uses when it initiates an evaluation, to an extent those criteria are consistent with the parent's right to an independent educational evaluation. District evaluations which do not meet these criteria due to unique circumstances will be considered on a case by case basis. Results of an independent evaluation obtained at parents' expense may be presented as evidence at a hearing regarding the child.
The parent shall have the right to appeal any decision of the School District or IEP Team regarding the referral, evaluation, determination of eligibility, IEP, provision of a free and appropriate public education, or placement of a child with a disability using the procedures detailed in the NH Rules - Ed 1122.
A due process hearing may be initiated by either party at any time and will be conducted in accordance with the NH Rules - Ed 1123. Alternative dispute resolution (Ed 1122) shall be voluntary and available to parents and the District in accordance with the RSA 186-C:23 and 34 CFR 300.506.
The parent shall have the right to file a complaint, in accordance with the NH Rules - Ed 1121.01(a), to report actions taken by the District that are contrary to the provisions of state and federal requirements regarding the education of children with disabilities.