PROCEDURAL SAFEGUARDS FOR STUDENTS WITH DISABILITIES

Revised January 1997

New Hampshire Department of Education
101 Pleasant Street
Concord, NH 03301-3860
(603) 271-3494

NOTICE OF NONDISCRIMINATION

Susan E. Auerbach
NH Department of Education
101 Pleasant Street
Concord, NH 03301-3860
(603) 271-3743

This document has been revised to meet the requirements of the United States Department of Education Office of Special Education Programs. Since each local school district establishes its own special education procedures, the way these rights are afforded to you will be unique to your particular school district. Your local school district has the responsibility of providing you with a copy of these rights including any additional information, if necessary, explaining how to access them in your particular school district. You may call the New Hampshire Department of Education at (603) 271-3494 if you have any questions.

Additional copies of "Procedural Safeguards for Students With Disabilities" may be obtained from the NH Department of Education. This document will be made available in Spanish, French, as well as English. Braille, audio tape and large type versions are also available upon request.

PROCEDURAL SAFEGUARDS FOR STUDENTS WITH DISABILITIES

As the parent of a child who is receiving or who may receive special education or special education and educationally related services, you have certain rights which are protected by state and federal laws and regulations. We want you to know about these rights. Your rights are listed below in a very short form. If you would like a more detailed explanation of these rights, you may call or write to the Superintendent of Schools for your town or you may call or write to the Division of Educational Improvement, New Hampshire Department of Education, 101 Pleasant Street, Concord, N.H. 03301-3860 (271-6051). Questions concerning your rights under Section 504 of the Rehabilitation Act of 1973 should be addressed to the 504 Coordinator, New Hampshire Department of Education, 101 Pleasant Street, Concord, NH 03301-3860 (271-3494).

POLICY STATEMENT

New Hampshire RSA 186-C:1 states: "It is hereby declared to be the policy of the state that all children in New Hampshire be provided with equal educational opportunities. It is the purpose of this chapter to insure that the state board of education and the school districts of the state provide a free and appropriate public education for all educationally disabled children."

RIGHT TO NOTICE

• You have the right to receive a written notice not less than 14 days before the school district proposes to initiate or change, or refuses to initiate or change, the identification, evaluation, educational placement, or the provision of a free, appropriate public education to your child.

• You have the right to have the notice include a description of the action that is being proposed or refused, an explanation of why the school district is proposing or refusing to take this action, a description of any other options considered, and an explanation of why those options were rejected.

• You have the right to have the notice include a description of each evaluation procedure, test, record, or report the school district used as a basis for the proposed action or refusal of action.

• You have the right to have the notice include a description of any other factors which were used by the school district as a basis for the proposed action or refusal of action.

• You have the right to have the notice include a full explanation of all of the rights and procedural safeguards available to you.

• You have the right to have the written notice provided in your native language or other principal mode of communication and written in language understandable to the general public.

• You have the right to have an oral or other type of translation of the notice if your native language or principal mode of communication is not a written language.

  NOTE: The school district will take steps to ensure that you understand the content of the notice and that there is a written record that an appropriate translation has been provided which you have understood.

RIGHT TO CONSENT

• You have the right to know that the school district must obtain your informed written consent prior to:
  • Conducting a pre-placement evaluation;

  • Conducting individual evaluations administered for the purpose of further diagnosing your child;

  • Making an initial placement of your child in a program providing special education or special education and educationally related services;

  • Annual renewal of the placement of your child in a program providing special education or special education and educationally related services;

  • Determining or changing the disability classification; or

  • Changing the nature or extent of the special education or special education and educationally related services.

• You have the right to know that if you do not give your consent for any of the above listed activities, and the school district feels that its decision should be implemented in order to provide a free, appropriate public education to your child, the school district shall initiate a due process hearing.

• You have the right to know that New Hampshire education law RSA 186-C:17 states that "nothing in this chapter shall be construed as authorizing any public official, agent, or representative in carrying out any of the provisions of this chapter to take charge of any child over the objection of either of the parents of such child, or of the person standing in loco parentis to such child except pursuant to a proper court order."

• You have the right to revoke your consent at any time.

RIGHT TO EVALUATION PROCEDURES

• You have the right to have a full and individual evaluation of your child's educational needs if your child is suspected of having an educational disability.

• You have the right to have more than one criterion used in determining your child's eligibility for special education or special education and educationally related services.

• You have the right to have the evaluation performed by a multi-disciplinary team.

• You have the right to have your child evaluated in his or her native language or other mode of communication unless it is clearly not feasible to do so.

  NOTE: Limited English Proficiency is not a disability. Separate special language services are available from local school districts for students who are determined to be Limited English Proficient.>

• You have the right to have information from more than one source be considered by the team determining your child's eligibility for special education or special education and educationally related services.

• You have the right to have your child re-evaluated every three years or more frequently if conditions warrant or if you or your child's teacher requests it.

RIGHT TO INDEPENDENT EVALUATIONS

• You have the right to obtain an independent educational evaluation of your child.

• You have the right to request, from the school district, information about where an independent educational evaluation may be obtained.

• You have the right to be told the procedures for obtaining an independent educational evaluation at public expense and the conditions under which such an evaluation may be obtained.

• You have the right to have the school district pay for the independent educational evaluation if you disagree with the school district's evaluation. However, the school district may initiate a Due Process Hearing to show that its evaluation is appropriate. If the result of the Due Process Hearing is that the school district's evaluation is appropriate, you still have the right to an independent educational evaluation, but not at public expense.

• You have the right to know that whenever an independent evaluation is obtained 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 used when an evaluation is initiated by the school district.

• You have the right to have the results of an independent evaluation obtained at private expense be considered by the team determining your child's educational disability or determining the special education or special education and educationally related services to be provided to your child.

RIGHT TO PLACEMENT IN THE LEAST RESTRICTIVE ENVIRONMENT

• You have the right to have your child educated with students who do not have disabilities to the maximum extent that is appropriate for your child.

• You have the right to know that the school district must give evidence that a continuum of alternative educational environments are available or would be made available as placements for students with disabilities.

• You have the right to know that the removal of your child from the regular education classroom can occur only when the nature or severity of his/her disability is such that education in regular classes, even with the use of supplementary aids and services such as tutors, aides, itinerant instruction or special materials, cannot be achieved satisfactorily.

• You have the right to have your child placed in the school he/she would attend if he/she did not have a disability unless your child's Individualized Education Program requires some other arrangement.

• You have the right to have your child participate with children who do not have disabilities in non-academic and extracurricular services such as meals, recess, counseling, clubs, athletics, and other special interest groups or clubs run by the school.

• You have the right to be a member of the team that develops your child's Individualized Education Program.

• You have the right to have transportation to and from school, between schools, and in and around school buildings, including specialized equipment if necessary, provided as an educationally related service if required by your child's Individualized Education Program.

• You have the right to have your child's Individualized Education Program implemented by appropriately certified or licensed individuals.

RIGHT TO HEARINGS

• You have the right to request an Impartial Due Process Hearing to challenge the school district's identification, evaluation, determination of educational disability, Individualized Education Program, or placement of your child or to question the district's provision of a free, appropriate public education. The school district also has a right to request an Impartial Due Process Hearing on these matters. (Please refer to the information below regarding time limits for requesting a hearing.)

• You have the right to be told of any free or low-cost legal and other relevant services available to assist you with the Hearing. You must be given this information if you request it or if either you or the school district requests an Impartial Due Process Hearing.

• You have the right to request that you and the school district participate in mediation. However, you also have the right to know that the school district is not required to agree to participate in this process.

• You have the right to be advised and accompanied at the Hearing by counsel (an attorney) or by individuals with special knowledge or training with respect to the problems of students with disabilities. Any party to the Hearing, including the school district, also has this right.

• You have the right to have the Hearing conducted by a person not employed by a public agency involved in the education or care of your child or otherwise having any personal or professional interest in the Hearing.

  NOTE: Hearing Officers are not considered employees of a public agency involved with education solely because of being paid by the State for the specific purpose of conducting the Hearing.

• You have the right to see a statement of the qualifications of each of the Hearing Officers. This information is kept by the Commissioner of Education.

• You have the right to know that the New Hampshire Department of Education appoints Hearing Officers, who must be attorneys, to conduct the Due Process Hearings.

• You have the right to know that a prehearing conference is required as part of the Impartial Due Process Hearing procedure. However, the prehearing conference will not be used to deny or delay your right to an Impartial Due Process Hearing.

• You have the right to know that the Hearing must be held at a time and place reasonably convenient to you.

• You have the right to have your child present at the Due Process Hearing.

• You have the right to have the Hearing open to the public.

• You have the right to present evidence and to cross-examine and compel the attendance of witnesses. Any party to the Hearing, including the school district, also has this right.

• You have the right to introduce the results of an independent evaluation, conducted at private expense, as evidence at a Hearing.

• You have the right to know that the Hearing Officer may request an independent educational evaluation. Such an evaluation would be paid for by the school district.

• You have the right to know that you and the school district must exchange, and provide to the Hearing Officer, lists of witnesses, including a brief description of each witness's testimony, and documentary evidence at least 5 days before the Hearing begins. These 5 days do not include the first day of the hearing.

• You have the right to prohibit the introduction of any evidence at the Hearing that has not been disclosed at least 5 days before the Hearing. Any party to the Hearing, including the school district, also has this right.

• You have the right to obtain an electronic verbatim record of the Hearing. Any party to the Hearing, including the school district, also has this right.

• You have the right to have a copy of the written decision sent to you not later than 45 days after the date on which the Department of Education received the request for the Hearing. Any party to the Hearing, including the school district, also has this right.

  NOTE: Either party may request that the hearing officer grant specific extensions of this time frame.

  NOTE: A copy of the decision of the Hearing Officer, including findings of fact, are sent to the State Advisory Committee and made available to the general public, after personally identifiable information has been deleted.

• You have the right to have your child remain in his or her present educational placement until the Hearing is completed and you receive the Hearing Officer's written decision, unless you and the school district agree otherwise. You also have the right to have your child remain in his or her present educational placement during any administrative or judicial proceeding, unless you and the school district agree otherwise.

• You have the right to have your child placed in a public school program until the completion of all proceedings, if the matter involves an application for initial admission to public school.

• You have the right to recover reasonable attorney's fees, subject to certain limitations, if you prevail in a Hearing or court action. (Please refer to the information below regarding time lines for requesting attorney's fees.)

• You have the right to know that the decision of the Hearing Officer is final unless one of the parties appeals the decision.

• You have the right to appeal a decision from the Hearing Officer by bringing a civil action to state or federal court. Any party to a Hearing, including the school district, also has this right. (Please refer to the information below regarding time limits for appeals.)

TIME LIMITS OR STATUTES OF LIMITATIONS

• You have the right to know that New Hampshire state law imposes certain timelines or statutes of limitations on actions involving Due Process Hearings, the appeal of Due Process Hearing decisions and the recovery of attorney's fees. Specifically:

  If you want to take action against a school district in order to enforce your special education rights under either state or federal law, you must request an Impartial Due Process Hearing within 2 years of the date on which the violation of the rights which you believe occurred either was discovered or reasonably should have been discovered.

  If you place your child in a special education placement without involving the school district and you want to recover the costs of that placement from the district, you must request an Impartial Due Process Hearing within 90 days of making the placement.

  If you want to appeal a Hearing Officer's decision, you must file that appeal within 120 days from the date on which you receive the final hearing decision.

  If you want to seek reimbursement for attorney's fees, you must begin action within 120 days from the date on which you receive the final hearing decision.

  NOTE: Although there is no time limit specified for actions filed under federal law in federal court, the federal court will look to the most similar state time limit or statute of limitations. This means that the federal court would generally look to the timelines or statutes of limitations described above. (The language used in this note was provided by the United States Department of Education.)

RIGHT TO FILE A COMPLAINT

• You have the right to file a complaint with the New Hampshire Department of Education in order to report allegations of actions taken by a public or private agency which are contrary to the provisions of state and federal requirements regarding the education of students with educational disabilities.

• You have the right to know that your complaint must be written, must contain a statement that the public agency has violated a state or federal requirement regarding the education of a student with educational disabilities and must contain the facts on which that statement is based.

• You have the right to know that your complaint should be directed to the Commissioner of Education, 101 Pleasant Street, Concord, New Hampshire 03301-3860.

• You have the right to resolution of your complaint within 60 days from the date on which the Department of Education received the complaint. This time limit may be extended up to 90 days by the Commissioner of Education if a written request from the local Superintendent of Schools, director of the public agency or director of the private agency documents exceptional circumstances that necessitate such an extension.

• You have the right to file a grievance with your local school district's 504 Coordinator and to file a complaint with the Office of Civil Rights of the US Department of Education, Room 222 McCormack P.O.C.H. Building, Boston, MA 02109-4557, if you believe your child has been discriminated against because of his or her disability.

RIGHT TO REVIEW RECORDS

• You have the right to inspect and review any education records of you child or to be informed of the specific information that is contained in the records.

• You have the right to know that the school district must comply with your request to inspect and review your child's education records without unnecessary delay and before any meeting regarding an Individualized Education Program or any hearing and in no event more than 45 days after you have made the request

  NOTE: The local school district must allow either parent the right to inspect and review their child's education records unless they have been provided with evidence that there is a legally binding instrument, state law, or court order which provides to the contrary.

• You have the right to obtain copies of your child's education records where failure of the school district to provide you with copies would effectively prevent you from exercising your right to inspect and review those records.

  NOTE: You may be charged a fee for copies of the education records, unless such fees would prevent you from inspecting or reviewing the records, but you may not be charged for the cost of searching for and retrieving the records.

• You have the right to obtain a listing of the types and locations of education records maintained by the school district and the title and address of the school official responsible for those records.

• You have the right to ask for an explanation and interpretation of your child's education records and the school district must comply with any such reasonable request.

• You have the right to ask that information contained in your child's education records be amended if you believe that the information is inaccurate or misleading, or violates the privacy or other rights of your child.

  NOTE: The school district must decide whether to amend the information within a reasonable period of time after receiving your request to amend your child's education records.

• You have the right to be informed if the school district decides to refuse to amend the information in accordance with your request and at the same time to be advised of your right to a hearing regarding this refusal.

• You have the right to a local hearing if the school district refuses to make the requested amendment to the records.

• You have the right to know that when the outcome of the local hearing on your request to amend the records is that the information is inaccurate, misleading, or a violation of the privacy or other rights of your child, the school district shall amend the records and you have the right to be informed, in writing, of the amendment of the information.

• You have the right to know that when the outcome of the local hearing on your request to amend the records is that the information is not inaccurate, misleading, or a violation of the privacy or other rights of your child, you have the right to place in your child's records a statement commenting on the information or explaining why you disagree with the decision of the school district. Your statement must be maintained as part of your child's education records for as long as the records are maintained by the school district. If your child's education records are disclosed to anyone, your statement must also be disclosed to that individual.

• You have the right to know that the school district must keep a record of each request for and each disclosure of personally identifiable information from your child's education records (except for disclosures to you and to authorized employees of the school district). This record must include the name of the individual(s) who have requested and/or obtained information from the records, the date they were given access to the records and the purpose for which they were authorized to use the records. You have a right to inspect the record of disclosures of personally identifiable information from your child's records.

• You have the right to know that when education records contain information on more than one child, you have the right to inspect and review only the specific information which pertains to your child.

• You have the right to have your authorized representative review and inspect your child's education records.

• You have the right to be notified when personally identifiable information which has been collected, maintained or used to provide an appropriate educational program is no longer needed to provide educational services to your child and to have that information destroyed at your request.

RIGHT TO A SURROGATE PARENT

• You have the right to know that the educational rights of a student with disabilities are protected when the student's parent or guardian is not known or is unavailable or when the student is a ward of the state. In such cases, the New Hampshire Department of Education determines whether or not the student needs a surrogate parent. A surrogate parent who is appointed by the Department of Education will represent the student in all matters and in all proceedings relating to the identification, evaluation, and educational placement of the student and the provision of a free, appropriate public education.

• You have the right to know that the person selected as a surrogate parent has no interest that conflicts with the interests of the student he/she represents, has knowledge and skills that ensure adequate representation of the student, and may not be an employee of a public agency that is involved in the education or care of the student.

  NOTE: A surrogate parent would not be considered an employee of the public agency solely because he/she has been appointed by the agency to serve as a surrogate parent.

REFERENCES

Your rights are more completely described in the following documents:

Public Law 94-142, Education for All Handicapped Children Act (EHA-B), as amended by Public Law 101-476, Individuals with Disabilities Education Act (IDEA).

Code of Federal Regulations 34 Part 300, Assistance to States for Education of Handicapped Children, 7/1/85 Federal Regulations for P.L. 94-142.

New Hampshire RSA 186-C, Special Education.

New Hampshire Standards for the Education of Students with Disabilities, adopted February 16, 1994.

United States Code, Title 20, Part IV Records; Privacy Section 1232 Family Education and Privacy Rights ("Buckley Amendment").

Federal Register, June 17, 1976 (Federal Regulations for the Family Educational Rights and Privacy Act).

Code of Federal Regulations 34 Part 104, Regulations for the Implementation of Rehabilitation Act of 1973, Section 504.

Federal Register, May 4, 1977 (Federal Regulations for "504").

Public Law 99-371, Handicapped Children's Protection Act, Amendments of 1986 (Attorney's Fees Bill").

Public Law 99-457, Education of the Handicapped Act, Amendments of 1986, Section 680 "Procedural Safeguards".

Code of Federal Regulations 34 Part 300 Sections 500 through 534 (Due Process), Sections 540 through 543 (Protection in Evaluation), Sections 560 through 576 (Confidentiality).

FY '96-'98 New Hampshire State Plan for the Implementation of EHA-B.