tale of ontents general information 2-3 about this...

June 2016P S N rocedural afeguards oticeBased on the Model Form provided by the Office of Special Education Programs (OSEP), revised June 2009

For additional information – Student Services, 302 West Dunlap Street, Lancaster, SC 29720 • 803-285-8439

General Information ..................2-3Prior Written Notice ................................. 2Native Language ..................................... 2Electronic Mail ......................................... 2Parental Consent—Definition ............... 2-3Parental Consent ..................................... 3 Revocation of Consent ...................... 3Independent Educational Evaluations .... 3

Confidentiality of Information ..3-5Definitions ............................................... 3Personally Identifiable .......................... 3-4Notice to Parents ..................................... 4Access Rights ......................................... 4Record of Access ................................... 4Records on More Than One Child .......... 4 List of Types & Locations of Information ....4 Fees ................................................................4Amendment of Records at Parent’s Request ............................ 4Opportunity for a Hearing ....................... 4Hearing Procedures ................................ 4 Result of Hearing ............................... 4Consent For Disclosure of Personally Identifiable Information ...................... 5Safeguards .............................................. 5 Destruction of Information ................. 5

State Complaint Procedures ....5-6Differences Between the Procedures for . Due Process Complaints & Hearings & for State Complaints ....................... 5Minimum State Complaint Procedures.... 5Filing a State Complaint .......................... 6

Due Process Complaint Procedures ..............6-7

Filing a Due Process Complaint .............. 6Due Process Complaint .......................... 6Model Forms ........................................... 6Mediation ................................................ 7Resolution Process ................................. 7

Hearings on Due Process Complaints .............................7-8

Impartial Due Process Hearing ............... 7Hearing Rights ........................................ 8Hearing Decisions ................................... 8

Appeals.......................................8-9Finality of Decision; Appeal; Impartial Review ................................ 8Timelines & Convenience of Hearings & Reviews .......................................... 8Civil Actions, Including the Time Period in Which to File Those Actions ........ 8-9Child’s Placement While the Due Process Complaint & Hearing are Pending ..... 9Attorney’s Fees ........................................ 9

Procedures When Disciplining Children with Disabilities ...9-11

Authority of School Personnel ............ 9-10Change of Placement Becauseof Disciplinary Removals....................... 10Determination of Setting........................ 10Appeal ................................................... 10Placement During Appeals ................... 11Protections for Children Not Yet Eligible for Special Education & Related Services ..11Referral to & Action by Law Enforcement & Judicial Authorities .. 11

Requirements for Unilateral Placement by Parents of Children in Private Schools at Public Expense .................. 11Free Appropriate PublicEducation (FAPE) in LocalDetention Centers ....................... 11

Dear Parents ...............................12

Medicaid Notification .................12

Table of Contents

The Individuals with Disabilities Education Act (IDEA) – the Federal law concerning the education

of students with disabilities – requires schools to pro-vide you, the parents of a child with a disability, with a notice containing a full explanation of the procedural safeguards available under IDEA and U.S. Department of Education regulations.

A copy of this notice must be given to you only one time a school year, except that a copy must also be

given to you:

1- upon initial referral or your request for evaluation;2- uponreceiptofyourfirstStatecomplaintunder34

CFR§§300.151through300.153anduponreceiptofyourfirstdueprocesscomplaintunder§300.507in a school year;

3- whenadecisionismadetotakeadisciplinaryac-tion against your child that constitutes a change of placement; and

4- uponyourrequest.[34CFR§300.504(a)]

About this booklet

For additional assistance understanding your rights: Lancaster County School District

Department of Student Services302 West Dunlap Street

Lancaster, SC 29720803-285-8439

PRO-Parents652BushRiverRoad,Suite203

Columbia,SC29210TollFree:1-800-759-4776Phone:(803)[email protected]

S.C Legal Services214JohnstonStreetRockHill,SC29730

IntakeOffice:1-888-346-5592TollFree:800-922-3853Phone:803-327-9001

Office of SpecialEducation Services

1429SenateStreetColumbia,SC29201Phone:(803)734-8224

Toll-freehelpline1-866-628-0910

Protection & Advocacy3710LandmarkDrive,Suite208

Columbia,SC29204Phone:1-866-275-7273

As parents of a student with a dis-ability, you and your child have

many rights. With these rights, there are certain responsibilities. The school district/agency is responsible for protecting your rights. You, in turn, should at-tempt to keep the school district/agency informed of things that affect your child’s education. You also are urged to assist the school by attending the IEP meetings and by keeping the lines of com-munication open at all times. When you have concerns about your child’s education, it is important to tell your child’s teacher, school principal, co-ordinator of special education or oth-er school administrators.• YoumaycontacttheS.C.Depart-

mentofEducation,OfficeofSpe-cial Education Services, at 803-734-8224.

• Ifyouneedfurtherassistance,thereare advocacy and/or parent groups from whom you may obtain help. You may call Protection and Advo-cacy for People with Disabilities at theCentralOfficeinColumbiatollfree866-275-7273.

• Ifyouwouldlikeafurtherexpla-nation of any of these rights, you may contact the Department of StudentServicesoftheLancasterCounty School District: Telephone -(803)285-8439.

Our school district does not dis-criminate on the basis of race, color, national origin, sex, disability or age in its programs and activities.

The district staff members listed below have been designated to han-dle inquiries regarding the non-dis-crimination policies:

u Section 504 inquiries Dr. Kathy Durbin Director of Student Services 302W.DunlapStreet Lancaster,SC29720 803-285-8439

uTitle IX & Title II of ADA inquiries Dr. Gwendolyn Conner DirectorofHumanResources 307SouthCatawbaStreet Lancaster,SC29720 803-286-6972

You have many rights

uNotice Your school district must give you written notice (provide you certain in-formation in writing), within a reason-able amount of time before it:1. Proposes to initiate or to change the identification, evaluation, or educa-tional placement of your child, or the provision of a free appropriate public education (FAPE) to your child; or

2. Refuses to initiate or to change the identification, evaluation, or educa-tional placement of your child, or the provision of FAPE to your child.

uContent of notice The written notice must:1. Describe the action that your school districtproposesorrefusestotake;

2. Explain why your school district is pro-posingorrefusingtotaketheaction;

3.Describe each evaluation procedure,assessment, record, or report your school district used in deciding to propose or refuse the action;

4.Include a statement that you haveprotections under the procedural safe-guardsprovisionsinPartBofIDEA;

5.Tell you how you can obtain a de-scription of the procedural safeguards

if the action that your school district is proposing or refusing is not an ini-tial referral for evaluation;

6. Include resources for you to contact for helpinunderstandingPartBofIDEA;

7.Describeanyotheroptionsyourchild’sindividualized education program (IEP) Team considered and reasons why those options were rejected; and

8. Provide a description of other reasons why your school district proposed or refused the action.

uNotice in understand-able language

The notice must be:

General information

Prior Written Notice – 34 CFR §300.503

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

2. Provided in your native language or other mode of communication you use, unless it is clearly not feasible to do so.

If your native language or other mode of communication is not a written language, your school district must ensure that:1. The notice is translated for you orally or

by other means in your native language or other mode of communication;

2. You understand the notice’s content; and3.Writtenevidenceexiststhatrequirements

in paragraphs 1 & 2 have been met.

Native language, when used re-garding an individual who has limited English proficiency,means the follow-ing:

1. The language normally used by that person, or, in the case of a child, the language normally used by the child’s parents;

2. In all direct contact with a child (in-cluding evaluation of the child), the language normally used by the child in the home or learning environment.

General information

Native Language – 34 CFR §300.29

For a person with deafness or blind-ness, or for a person with no written lan-guage, the mode of communication is what the person normally uses (such as sign language,Braille,ororalcommuni-cation).

If your school district offers parents the choice of receiving documents by e-

mail, you may choose to receive the fol-lowing by e-mail:

1. Prior written notice; 2. Procedural safeguards notice; and

General information

Electronic Mail – 34 CFR §300.505

uConsent Consent means:1. You have been fully informed in

your native language or other mode of communication (such as sign lan-guage, Braille, or oral communica-tion) of all information about the ac-

tion for which you are giving consent.2. You understand and agree in writ-

ing to that action, and the consent describes that action and lists the records (if any) that will be released and to whom; and

3.You understand that the consent is

voluntary on your part and that you may withdraw your consent at any time.

If youwish to revoke (cancel) yourconsent after your child has begun re-ceiving special education and related services, you must do so in writing. Your withdrawal of consent does not negate

General information

ParentalConsent–Definition– 34 CFR §300.9

(undo) an action that has occurred after you gave your consent but before you withdrew it. In addition, the school dis-trict is not required to amend (change) your child’s education records to remove any references that your child received special education and related services after your withdrawal of consent.

uConsent for initial evaluation Your school district cannot conduct an initial evaluation of your child to de-termine whether your child is eligible underPartBofIDEAtoreceivespecialeducation and related services without first providing you with prior writtennotice of the proposed action and ob-taining your consent as described under the headings Prior Written Notice and Parental Consent. Your school districtmustmake rea-sonable efforts to obtain your informed consent for an initial evaluation to de-cide whether your child is a child with a disability. Your consent for initial evaluation does not mean that you have also given your consent for the school district to start providing special education and re-lated services to your child. Your school district may not use your refusal to consent to one service or ac-tivity related to the initial evaluation as a basis for denying you or your child any otherservice,benefit,oractivity,unlessanotherPartBrequirementrequirestheschool district to do so.

If your child is enrolled in public school oryouareseekingtoenrollyourchildina public school and you have refused to provide consent or failed to respond to a request to provide consent for an initial evaluation, your school district may, but isnotrequiredto,seektoconductanini-tial evaluation of your child by using the IDEA's mediation or due process com-plaint, resolution meeting, and impartial due process hearing procedures. Your school district will not violate its obliga-tions to locate, identify and evaluate your child if it does not pursue an evaluation of your child in these circumstances.

uSpecial rules for initial evaluation of wards of the State

If a child is a ward of the State and is not living with his or her parent, the school district does not need consent from the parent for an initial evaluation to determine if the child is a child with a disability if:1. Despite reasonable efforts to do so, the school district cannot find thechild’s parent;

2. The rights of the parents have been

terminated in accordance with State law; or

3.A judge has assigned the right tomakeeducationaldecisionstoanin-dividual other than the parent and that individual has provided consent for an initial evaluation.

Ward of the State, as used in IDEA, means a child who – as determined by the State where the child lives – is: 1. A foster child;2. Considered a ward of the State under

State law; or 3.Inthecustodyofapublicchildwel-

fare agency. There is one exception that you should know about.Ward of the Statedoes not include a foster child who has a fosterparentwhomeetsthedefinitionofa parent as used in IDEA.

uParental consent for services Your school district must obtain your informed consent before providing spe-cial education and related services to yourchildforthefirsttime. Theschooldistrictmustmakereason-

General information

Parental Consent – 34 CFR §300.300

able efforts to obtain your informed con-sent before providing special education and related services to your child for the firsttime. If you do not respond to a request to provide your consent for your child to receive special education and related services for thefirst time,or ifyoure-fusetogivesuchconsentorlaterrevoke(cancel) your consent in writing, your school district may not use the proce-dural safeguards (i.e., mediation, due process complaint, resolution meeting, or an impartial due process hearing) in order to obtain agreement or a ruling that the special education and related services (recommended by your child's IEP Team) may be provided to your child without your consent. If you refuse to give your consent for your child to receive special education and related services for the first time,or if you do not respond to a request toprovidesuchconsentorlaterrevoke(cancel) your consent in writing and the school district does not provide your child with the special education and re-lated services for which it sought your consent, your school district:

3.Noticesrelatedtoadueprocesscom-plaint.

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1. Is not in violation of the requirement tomakeafreeappropriatepublicedu-cation (FAPE) available to your child for its failure to provide those servic-es to your child; and

2. Is not required to have an individual-ized education program (IEP) meeting or develop an IEP for your child for the special education and related services for which your consent was requested.

If you revoke (cancel) your consentin writing at any point after your child is first provided special education andrelated services, then the school district may not continue to provide such ser-vices, but must provide you with prior written notice, as described under the heading Prior Written Notice, beforediscontinuing those services.

uParental consent for reevaluations Your school district must obtain your informed consent before it reevaluates your child, unless your school district can demonstrate that:1. It took reasonable steps to obtain your

consent for your child’s reevaluation; and2. You did not respond.

uRevocation of consent for services Youmayrevokeconsentforthepro-vision of special education and related services. The revocation must be in writing. Revocation of consent is not retroactive and will not result in the re-moval or modification of any of yourchild’s existing student records. If, at any time subsequent to the ini-tial provision of special education and related services, you revokeconsent inwriting for the continued provision of special education and related services, the school district— – May not continue to provide special

education and related services to the child, but must provide prior written notice before discontinuing those ser-vices;

– May not use the mediation procedures or due process procedures in order to obtain agreement or a ruling that the services may be provided to the child;

– Will not be considered to be in violation oftherequirementtomakeFAPEavail-able to the child because of the failure to provide the child with further special education and related services; and

– Is not required to convene an IEP Team meeting or develop an IEP for the child for further provision of spe-cial education and related services.

uDocumentation of reasonable efforts to obtain parental consent Your school must maintain documen-tation of reasonable efforts to obtain your consent for initial evaluations, to provide special education and related services for thefirsttime,forareevaluation,andtolo-cate parents of wards of the State for ini-tial evaluations. The documentation must include a record of the school district’s at-tempts in these areas, such as:1. Detailed records of telephone calls

made or attempted and the results of those calls;

2. Copies of correspondence sent to you and any responses received; and

3.Detailedrecordsofvisitsmadetoyourhome or place of employment and the results of those visits.

uOther consent requirements Your consent is not required before your school district may:1. Review existing data as part of your

child's evaluation or a reevaluation; or

2. Give your child a test or other evalu-ation that is given to all children un-less, before that test or evaluation, consent is required from parents of all children.

If you have enrolled your child in a private school at your own expense or if you are home schooling your child, and you do not provide your consent for your child's initial evaluation or your child's reevaluation, or you fail to re-spond to a request to provide your con-sent, the school district may not use its dispute resolution procedures (i.e., me-diation, due process complaint, resolu-tion meeting, or an impartial due process hearing) and is not required to consider your child as eligible to receive equi-table services (services made available to some parentally-placed private school children with disabilities).

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uGeneral As described below, you have the right to obtain an independent educational evaluation (IEE) of your child if you dis-agree with the evaluation of your child that was obtained by your school district. If you request an independent edu-cational evaluation, the school district must provide you with information about where you may obtain an indepen-dent educational evaluation and about the school district’s criteria that apply to independent educational evaluations.

uDefinitions Independent educational evaluation means an evaluation conductedbyaqualifiedexaminerwhois not employed by the school district responsible for the education of your child. Public expense means that the school district either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to you, consistent with the provi-sions of Part B of IDEA,which alloweach State to use whatever State, local, Federal, and private sources of support are available in the State to meet the re-quirementsofPartBoftheAct.

uRight to evaluation at public expense

You have the right to an independent educational evaluation of your child at public expense if you disagree with an evaluation of your child obtained by your school district, subject to the fol-lowing conditions:1. If you request an independent edu-

cational evaluation of your child at public expense, your school district must, without unnecessary delay, ei-ther: (a) File a due process complaint to request a hearing to show that its evaluation of your child is appropri-ate; or (b) Provide an independent educational evaluation at public ex-pense, unless the school district dem-onstrates in a hearing that the evalu-ation of your child that you obtained did not meet the school district’s cri-teria.

2. If your school district requests a hear-ingandthefinaldecisionisthatyourschool district’s evaluation of your child is appropriate, you still have the right to an independent educational evaluation, but not at public expense.

3.If you request an independent edu-cational evaluation of your child, the schooldistrictmayaskwhyyouob-

ject to the evaluation of your child obtained by your school district. However, your school district maynot require an explanation and may not unreasonably delay either provid-ing the independent educational eval-uation of your child at public expense or filing a due process complaint torequest a due process hearing to de-fend the school district’s evaluation of your child.

4.Youareentitledtoonlyoneindepen-dent educational evaluation of your child at public expense each time your school district conducts an eval-uation of your child with which you disagree.

uParent-initiated evaluations If you obtain an independent educa-tional evaluation of your child at public expense or you share with the school district an evaluation of your child that you obtained at private expense: 1. Your school district must consider

the results of the evaluation of your child, if it meets the school district’s criteria for independent educational evaluations, in any decision made with respect to the provision of a free

General information

Independent Educational Evaluations – 34 CFR §300.502

appropriate public education (FAPE) to your child; and

2. You or your school district may pres-ent the evaluation as evidence at a due process hearing regarding your child.

uRequests for evaluations by hearing officers Ifahearingofficerrequestsaninde-pendent educational evaluation of your child as part of a due process hearing, the cost of the evaluation must be at public expense.

uSchool district criteria If an independent educational evalu-ation 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 the extent those criteria are consistent with your right to an inde-pendent educational evaluation). Except for the criteria described above, a school district may not impose conditions or timelines related to obtain-ing an independent educational evalua-tion at public expense.

AsusedundertheheadingConfiden-tiality of Information:• Destruction means physical de-

struction or removal of personal iden-tifiers from information so that the

information is no longer personally identifiable.

• Education records means the type of records covered under the definition of ‘‘education records’’ in

34CFRPart99(the regulations im-plementing the Family Educational Rights and PrivacyAct of 1974, 20U.S.C.1232g(FERPA)).

• Participating agency means

Confidentiality of Information

Definitions– 34 CFR §300.611

any school district, agency or institu-tion that collects, maintains, or uses personally identifiable information,or from which information is ob-tained,underPartBofIDEA.

Personally identifiable means information that includes:a - Your child's name, your name as the

parent, or the name of another family member;

b - Your child’s address;

c -A personal identifier, such as yourchild’s social security number or stu-dent number; or

d - A list of personal characteristics or


PersonallyIdentifiable– 34 CFR §300.32

otherinformationthatwouldmakeitpossible to identify your child with reasonable certainty.

The SCDE must give notice that is adequate to fully inform parents about confidentialityofpersonallyidentifiableinformation, including: 1. A description of the extent to which

the notice is given in the native lan-guages of the various population groups in the State;

2. A description of the children on whom

personally identifiable information ismaintained, the types of information sought, the methods the State intends to use in gathering the information (in-cluding the sources from whom infor-mation is gathered), and the uses to be made of the information;

3.A summary of the policies and pro-cedures that participating agencies

must follow regarding storage, dis-closure to third parties, retention, and destructionofpersonally identifiableinformation; and

4.Adescriptionofalloftherightsofpar-ents and children regarding this infor-mation, including the rights under the Family Educational Rights and Privacy Act (FERPA) and its implementing reg-


Notice to Parents – 34 CFR §300.612

ulationsin34CFRPart99. Before anymajor activity to identify,locate, or evaluate children in need of spe-cial education and related services (also known as “child find”), the noticemustbe published or announced in newspapers or other media, or both, with circulation adequate to notify parents throughout the State of these activities.

The participating agency must permit you to inspect and review any education records relating to your child that are col-lected, maintained, or used by your school districtunderPartBofIDEA.Thepartici-pating agency must comply with your re-quest to inspect and review any education records on your child without unnecessary delay and before any meeting regarding an

individualized education program (IEP), or any impartial due process hearing (in-cluding a resolution meeting or a hearing regarding discipline), and in no case more than45calendardaysafteryouhavemadea request. Your right to inspect and review edu-cation records includes:

1. Your right to a response from the par-ticipating agency to your reasonable requests for explanations and inter-pretations of the records;

2. Your right to request that the partici-pating agency provide copies of the records if you cannot effectively in-spect and review the records unless you receive those copies; and


Access Rights – 34 CFR §300.613

3.Yourrighttohaveyourrepresentativeinspect and review the records.

The participating agency may pre-sume that you have authority to inspect and review records relating to your child unless advised that you do not have the authority under applicable State law governing such matters as guardianship, separation, and divorce.

Eachparticipatingagencymustkeepa record of parties obtaining access to

education records collected, maintained, or used under Part B of IDEA (except

access by parents and authorized em-ployees of the participating agency), in-cluding the name of the party, the date


Record of Access – 34 CFR §300.614

access was given, and the purpose for which the party is authorized to use the records.

If any education record includes in-formation on more than one child, the parents of those children have the right to inspect and review only the informa-tion relating to their child or to be in-formedofthatspecificinformation.

uList of Types & Locations of Information– 34 CFR §300.616 On request, each participating

agency must provide you with a list of the types and locations of educa-

tion records collected, maintained, or used by the agency.

uFees– 34 CFR §300.617 Each participating agency may

charge a fee for copies of records that


Records on More Than One Child – 34 CFR §300.615

aremadeforyouunderPartBofIDEA,if the fee does not effectively prevent you from exercising your right to in-spect and review those records.

A participating agency may not charge a fee to search for or to retrieve informationunderPartBofIDEA.

If you believe that information in the education records regarding your child collected, maintained, or used under PartBof IDEA is inaccurate,mislead-ing, or violates the privacy or other

rights of your child, you may request the participating agency that maintains the information to change the information. The participating agency must decide whether to change the information in accor-

dance with your request within a reasonable period of time of receipt of your request. If the participating agency refuses to change the information in accordance with your request, it must inform you of


Amendment of Records at Parent’s Request – 34 CFR §300.618

the refusal and advise you of your right to a hearing as described under the head-ing Opportunity For a Hearing.

The participating agency must, on request, provide you an opportunity for

a hearing to challenge information in education records regarding your child

to ensure that it is not inaccurate, mis-leading, or otherwise in violation of the


Opportunity for a Hearing – 34 CFR §300.619

privacy or other rights of your child.

A hearing to challenge information in education records must be conducted according to the procedures for such hearings under the Family Educational Rights and Privacy Act (FERPA).

uResult of Hearing – 34 CFR §300.620 If, as a result of the hearing, the par-

ticipating agency decides that the in-formation is inaccurate, misleading or otherwise in violation of the privacy or other rights of your child, it must change the information accordingly and inform you in writing. If, as a result of the hearing, the par-ticipating agency decides that the infor-mation is not inaccurate, misleading, or

otherwise in violation of the privacy or other rights of your child, it must inform you of your right to place in the records that it maintains on your child a state-ment commenting on the information or providing any reasons you disagree with the decision of the participating agency. Such an explanation placed in the re-cords of your child must:


Hearing Procedures – 34 CFR §300.621

1.Be maintained by the participatingagency as part of the records of your child as long as the record or contest-ed portion is maintained by the par-ticipating agency; and

2. If the participating agency discloses records of your child or challenged in-formation to any party, the explanation must also be disclosed to that party.

Unless the information is contained in education records, and the disclosure is authorized without parental consent under the Family Educational Rights and Pri-vacy Act (FERPA), your consent must be obtainedbeforepersonallyidentifiablein-formation is disclosed to parties other than officialsofparticipatingagencies.Except

under thecircumstancesspecifiedbelow,your consent is not required before per-sonallyidentifiableinformationisreleasedto officials of participating agencies forpurposes of meeting a requirement of Part BofIDEA. Your consent, or consent of an eli-gible child who has reached the age of

majority under State law, must be ob-tainedbeforepersonallyidentifiablein-formationisreleasedtoofficialsofpar-ticipating agencies providing or paying for transition services. If your child is in, or is going to go to, a private school that is not located in


Consent for Disclosure ofPersonallyIdentifiableInformation– 34 CFR §300.622

the same school district you reside in, your consent must be obtained before any personally identifiable informationabout your child is released between of-ficials in the school district where theprivateschoolislocatedandofficialsinthe school district where you reside.

Each participating agency must pro-tect the confidentiality of personallyidentifiable information at collection,storage, disclosure, and destruction stag-es. One official at each participatingagency must assume responsibility for ensuring theconfidentialityofanyper-sonallyidentifiableinformation. All persons collecting or using per-sonally identifiable information mustreceive training or instruction regard-ing your State’s policies and procedures regarding confidentiality under Part Bof IDEA and the Family Educational Rights and Privacy Act (FERPA). Each participating agency must main-tain, for public inspection, a current list-ing of the names and positions of those employees within the agency who may haveaccesstopersonallyidentifiablein-formation.

uDestruction of personally Identifiable information– 34 CFR §300.624 Your school district must inform you whenpersonallyidentifiableinformationcollected, maintained, or used under Part BofIDEAisnolongerneededtoprovideeducational services to your child. Federal auditing requirements neces-sitate the availability of education re-cords for identified students after fiveyears after they exit from special educa-tion services. After that period of time, the Lancaster County School Districtmay destroy records. However, before destroying specialeducation records, the District must no-tify the parent (or the adult student) that the information is no longer needed by the District to provide services to the student and that the District is proposing to destroy them.

The District will send a letter to the studentatthelastknownaddress.Ifthatletter is returned to the District, that re-turn becomes the documentation of the District’s attempt to inform the student of the proposed destruction of records. In such cases, the District will publish a public notice to students who gradu-atedorleftschoolfiveyearspreviously.The notice will be addressed to students and guardians, advising them of the pro-poseddestructionofrecordsandaskingthem to contact the District if they object


Safeguards – 34 CFR §300.623

to the destruction. The District provides such notice in this document. If the parents or student who has reached the age of majority makes norequest for the records, the information is destroyed. However,apermanentrecordofyourchild’s name, address, and phone num-ber, his or her grades, attendance record, classes attended, grade level completed, and year completed may be maintained without time limitation.


Notice of Destruction of Special Education RecordSpecial education records for each child with a disabilityare maintained by the Lancaster County School District

until no longer needed to provide educational services to the student. This notice is to inform you

that the special education records for this studentwill be destroyed after five (5) years following program completion

or graduation from high school, unless the student(or the student’s legal guardian)

has taken possession of the records prior to that time.

uDifferences between procedures for due process complaints & hearings & for state complaints The regulations for Part B of IDEAset forth separate procedures for State complaints and for due process com-plaints and hearings. As explained be-low, any individual or organization may fileaStatecomplaintallegingaviolationof anyPartB requirement by a schooldistrict, the SCDE, or any other public agency. Only you or a school district mayfileadueprocesscomplaintonanymatter relating to a proposal or a refusal to initiate or change the identification,evaluation, or educational placement of a child with a disability, or the provision

of a free appropriate public education (FAPE) to the child. While staff of the SCDE generally must resolve a State complaint within a 60-calendar-daytimeline, unless the timeline is properly extended, an impartial hearing officermust hear a due process complaint (if not resolved through a resolution meeting or through mediation) and issue a written decision within 45-calendar-days afterthe end of the resolution period, as de-scribed in this document under the head-ing Resolution Process, unless the hear-ingofficergrantsaspecificextensionofthe timeline at your request or the school district's request. The State complaint and due process complaint, resolution and hearing procedures are described more fully below. The SCDE has devel-opedmodelformstohelpyoufileadue

process complaint and help you or other parties tofile aState complaint.Thoseforms can be accessed on the South Car-olina Department of Education website at:http://ed.sc.gov/districts-schools/special-educa-

tion-services/parent-resources/dispute-reso-lution-information/

uGeneral The South Carolina Department of Education has adopted procedures for:1. Resolving any complaint, including a complaintfiledbyanorganizationorindividual from another State;

2.The filing of a complaint with theSCDE;

3.WidelydisseminatingtheStatecom-plaint procedures to parents and other interested individuals, including par-

State Complaint Procedures

State Complaint Procedures – 34 CFR §300.151

ent training and information centers, protection and advocacy agencies, independent living centers, and other appropriate entities.

uRemedies for denial of appropriate services

In resolving a State complaint in which the SCDE has found a failure to provide appropriate services, the SCDE must address:1. The failure to provide appropriate

services, including corrective action appropriate to address the needs of the child (such as compensatory ser-vices or monetary reimbursement); and

2. Appropriate future provision of servic-es for all children with disabilities.

uTime limit; minimum procedures The SCDE includes in its State com-plaintproceduresatimelimitof60cal-endardaysafteracomplaintisfiledto:1. Carry out an independent on-site in-

vestigation, if the SCDE determines that an investigation is necessary;

2. Give the complainant the opportunity to submit additional information, ei-ther orally or in writing, about the al-legations in the complaint;

3.Provide the school district or otherpublic agency with the opportunity to respond to the complaint, includ-ing, at a minimum: (a) at the option of the agency, a proposal to resolve the complaint; and (b) an opportunity foraparentwhohasfiledacomplaintand the agency to agree voluntarily to engage in mediation;

4.Review all relevant information andmake an independent determinationas to whether the school district or other public agency is violating a re-

quirementofPartBofIDEA;and5. Issue a written decision to the com-

plainant that addresses each allegation inthecomplaintandcontains:(a)find-ings of fact and conclusions; and (b) the reasonsfortheSCDE’sfinaldecision.

uTime extension; final decision; implementation The SCDE’s procedures described above also:


Minimum State Complaint Procedures – 34 CFR §300.152

1. Permitanextensionofthe60calendar-day time limit only if: (a) exceptional circumstances exist with respect to a particular State complaint; or (b) you and the school district or other public agency involved voluntarily agree to extend the time to resolve the matter through mediation or alternative means of dispute resolution, if available in the State.

2. Include procedures for effective imple-mentation of SCDE’s final decision, if


needed, including: (a) technical assis-tance activities; (b) negotiations; and (c) corrective actions to achieve compliance.

uState complaints & due process hearings If a written State complaint is received that is also the subject of a due process

hearing as described under the heading Filing a Due Process Complaint, or the State complaint contains multiple issues of which one or more are part of such a hearing, the State must set aside any part of the State complaint that is being addressed in the due process hearing un-til the hearing is over. Any issue in the

State complaint that is not a part of the due process hearing must be resolved using the time limit and procedures de-scribed above. If an issue raised in a State complaint has previously been decided in a due process hearing involving the same par-ties (for example, you and the school

district), then the due process hearing decision is binding on that issue and the SCDE must inform the complainant that the decision is binding. A complaint alleging a school dis-trict’s or other public agency’s failure to implement a due process hearing deci-sion must be resolved by the SCDE.

An organization or individual may fileasignedwrittenStatecomplaintun-der the procedures described above. The State complaint must include: 1. A statement that a school district or

other public agency has violated a requirementofPartBofIDEAoritsimplementingregulationsin34CFRPart300;

2. The facts on which the statement is based;

3.The signature and contact informa-tionforthepartyfilingthecomplaint;and

4.Ifallegingviolationsregardingaspe-cificchild:

a -The name of the child and address of the residence of the child;

b -The name of the school the child is attending;

c -In the case of a homeless child or youth, available contact infor-

mation for the child, and the name of the school the child is attending;

d- A description of the nature of the problem of the child, including facts relating to the problem; and

e -A proposed resolution of the prob-lem to the extent known andavailable to thepartyfiling thecomplaint at the time the com-plaintisfiled.


Filing a State Complaint – 34 CFR §300.153

The complaint must allege a viola-tion that occurred not more than one year prior to the date that the complaint is received as described under the head-ing Adoption of State Complaint Pro-cedures. The party filing the State complaintmust forward a copy of the complaint to the school district or other public agen-cy serving the child at the same time the partyfilesthecomplaintwiththeSCDE.

uGeneral Youor theschooldistrictmayfileadue process complaint on any matter re-lating to a proposal or a refusal to initiate or change the identification, evaluationor educational placement of your child, or the provision of a free appropriate public education (FAPE) to your child.

The due process complaint must al-lege a violation that happened not more than two years before you or the school district knew or should have knownabout the alleged action that forms the due process complaint’s basis. The above timeline does not apply to youifyoucouldnotfileadueprocess

complaint within the timeline because: 1.The school district specifically mis-

represented that it had resolved the issuesidentifiedinthecomplaint;or

2. The school district withheld informa-tion from you that it was required to provideyouunderPartBofIDEA.

Due Process Complaint Procedures

Filing a Due Process Complaint – 34 CFR §300.507

uInformation for parents The school district must inform you of any free or low-cost legal and other rel-evant services available in the area if you request the information, or if you or the schooldistrictfileadueprocesscomplaint.

uGeneral To request a hearing, you or the school district (or your attorney or the school district’s attorney) must submit a due process complaint to the other party. That complaint must contain all of the content listed below andmust be keptconfidential. Whoever files the complaint mustalso provide the SCDE with a copy of the complaint.

uContent of complaint The due process complaint must in-clude:1. The name of the child;2. The address of the child’s residence;3.Thenameofthechild’sschool;4.If the child is a homeless child or

youth, the child’s contact information and the name of the child’s school;

5.A description of the nature of theproblem of the child relating to the proposed or refused action, including facts relating to the problem; and

6. A proposed resolution of the problem to theextentknownandavailable to thecomplaining party (you or the school district) at the time.

uNotice required before a hearing on a due process complaint You or the school district may not have a due process hearing until you or the school district (or your attorney or theschooldistrict'sattorney)filesadueprocess complaint that includes the in-formation listed above.

uSufficiency of complaint For a due process complaint to go forward, it must be considered suffi-cient. The due process complaint will be considered sufficient (to have metthe content requirements above) unless the party receiving the due process com-plaint(youortheschooldistrict)notifiesthehearingofficerandtheotherpartyinwriting,within15calendardaysof re-ceiving the complaint, that the receiving party believes that the due process com-plaint does not meet the requirements listed above. Withinfivecalendardaysofreceivingthe notification that the receiving party(you or the school district) considers a due process complaint insufficient, the hear-ingofficermustdecideifthedueprocesscomplaint meets the requirements listed above, and notify you and the school dis-trict in writing immediately.

uComplaint amendment You or the school district may makechanges to the complaint only if: 1. The other party approves of the

changes in writing and is given the chance to resolve the due process complaint through a resolution meet-ing, described under the heading Res-olution Process; or

2. Bynolaterthanfivedaysbeforethedueprocess hearing begins, the hearing of-ficergrantspermissionforthechanges.

If the complaining party (you or the schooldistrict)makeschangestothedueprocess complaint, the timelines for the resolution meeting (within 15 calendardays of receiving the complaint) and the timeperiodforresolution(within30cal-endar days of receiving the complaint) start again on the date the amended com-plaintisfiled.

uLocal educational agen-cy or school district

response to due process complaint If the school district has not sent a prior written notice to you, as described under the heading Prior Written Notice, regarding the subject matter contained in your due process complaint, the school district must, within 10 calendar daysof receiving the due process complaint,


Due Process Complaint – 34 CFR §300.508

send you a response that includes:1. An explanation of why the school district proposed or refused to takethe action raised in the due process complaint;

2. A description of other options that your child’s individualized education program (IEP) Team considered and the reasons why those options were rejected;

3.Adescriptionofeachevaluationproce-dure, assessment, record, or report the school district used as the basis for the proposed or refused action; and

4.Adescriptionof theother factors thatare relevant to the school district’s pro-posed or refused action.

Providingtheinformationinitems1-4above does not prevent the school district from asserting that your due process com-plaintwasinsufficient.

uOther party response to due process complaint

Except as stated under the sub-heading immediately above, Local educational agency (LEA) or school district response to due process complaint, the party receiv-ing a due process complaint must, within 10calendardaysofreceivingthecom-plaint, send the other party a response thatspecificallyaddresses the issues inthe complaint.

The SCDE has developed model forms tohelpyoutofileadueprocesscomplaintandtohelpyouandotherparties tofilea

Statecomplaint.However,theStateortheschool district may not require the use of these model forms. You can use the model

form or another appropriate form, so long as itcontainstherequiredinformationforfil-ing a due process complaint or a State com-


Model Forms – 34 CFR §300.509

plaint. The forms may be found athttp://ed.sc.gov/districts-schools/special-edu-cation-services/parent-resources/dispute-resolu-tion-information/

uGeneral The school district must develop pro-ceduresthatmakemediationavailabletoallow you and the school district to re-solve disagreements involving any matter underPartBofIDEA,includingmattersarisingpriortothefilingofadueprocesscomplaint. Thus, mediation is available toresolvedisputesunderPartBofIDEA,whetherornotyouhavefiledaduepro-cess complaint to request a due process hearing as described under the heading Filing a Due Process Complaint.

uRequirements The procedures must ensure that the mediation process:1. Is voluntary on your part and the

school district’s part;2. Is not used to deny or delay your right

to a due process hearing, or to deny any other rights provided under Part BofIDEA;and

3.Is conducted by a qualified and im-

partial mediator who is trained in ef-fective mediation techniques.

The school district may develop pro-cedures that offer parents and schools that choose not to use the mediation pro-cess, an opportunity to meet, at a time and location convenient to you, with a disinterested party:1. Who is under contract with an appro-

priate alternative dispute resolution entity, or a parent training and infor-mation center or community parent resource center in the State; and

2.Who would explain the benefits of,and encourage the use of, the media-tion process to you.

TheStatemustkeepa listofpeoplewho are qualifiedmediators and knowthe laws and regulations relating to the provision of special education and relat-ed services. The SCDE must select me-diators on a random, rotational, or other impartial basis. The State is responsible for the costs

of the mediation process, including the costs of meetings. Each meeting in the mediation pro-cess must be scheduled in a timely man-ner and held at a place that is convenient for you and the school district. If you and the school district resolve a dispute through the mediation process, both parties must enter into a legally binding agreement that sets forth the resolution and:1. States that all discussions that hap-

pened during the mediation process will remain confidential and maynot be used as evidence in any sub-sequent due process hearing or civil proceeding (court case); and

2. Is signed by both you and a representa-tive of the school district who has the authority to bind the school district.

A written, signed mediation agree-ment is enforceable in any State court of competent jurisdiction (a court that has the authority under State law to hear this


Mediation – 34 CFR §300.506

type of case) or in a district court of the United States. Discussions that happened during the mediationprocessmustbeconfidential.They cannot be used as evidence in any future due process hearing or civil pro-ceeding of any Federal court or State court of a State receiving assistance un-derPartBofIDEA.

uImpartiality of mediator The mediator:1. May not be an employee of the SCDE

or the school district that is involved in the education or care of your child; and

2. Must not have a personal or profes-sional interest which conflicts withthe mediator’s objectivity.

Apersonwhootherwisequalifiesasamediator is not an employee of a school district or State agency solely because he or she is paid by the agency or school district to serve as a mediator.

uResolution meeting Within15calendardaysofreceivingnotice of your due process complaint, and before the due process hearing be-gins, the school district must convene a meeting with you and the relevant mem-ber or members of the individualized ed-ucation program (IEP) Team who have specific knowledge of the facts identi-fiedinyourdueprocesscomplaint.Themeeting: 1. Must include a representative of the schooldistrictwhohasdecision-mak-ing authority on behalf of the school district; and

2. May not include an attorney of the school district unless you are accom-panied by an attorney.

You and the school district determine the relevant members of the IEP Team to attend the meeting. The purpose of the meeting is for you to discuss your due process complaint, and the facts that form the basis of the complaint, so that the school district has the opportunity to resolve the dispute. The resolution meeting is not neces-sary if: 1. You and the school district agree in

writing to waive the meeting; or2. You and the school district agree to

use the mediation process, as de-scribed under the heading Mediation.

uResolution period If the school district has not resolved the due process complaint to your sat-isfactionwithin30calendardaysofthereceipt of the due process complaint (during the time period for the resolu-tion process), the due process hearing may occur. The45-calendar-day timeline for is-suingafinaldueprocesshearingdeci-sion, as described under the heading Hearing Decisions, begins at the expi-rationofthe30-calendar-dayresolutionperiod, with certain exceptions for ad-justmentsmade to the 30-calendar-dayresolution period, as described below. Except where you and the school dis-trict have both agreed to waive the reso-lution process or to use mediation, your failure to participate in the resolution meeting will delay the timelines for the resolution process and due process hear-ing until the meeting is held. Ifaftermaking reasonableeffortsanddocumenting such efforts, the school dis-trict is not able to obtain your participa-tion in the resolution meeting, the school districtmay, at the end of the 30-calen-dar-day resolution period, request that a hearingofficerdismissyourdueprocesscomplaint. Documentation of such ef-forts must include a record of the school district’s attempts to arrange a mutually agreed upon time and place, such as:

1. Detailed records of telephone calls made or attempted and the results of those calls;

2. Copies of correspondence sent to you and any responses received; and

3.Detailedrecordsofvisitsmadetoyourhome or place of employment and the results of those visits.

If the school district fails to hold the resolution meeting within 15 calendardays of receiving notice of your due process complaint or fails to participate intheresolutionmeeting,youmayaskahearingofficertobeginthe45-calendar-day due process hearing timeline.

uAdjustments to the 30-calendar-day reso-lution period

If you and the school district agree in writing to waive the resolution meeting, thenthe45-calendar-daytimelineforthedue process hearing starts the next day. After the start of mediation or the resolution meeting and before the end of the30-calendar-dayresolutionperiod,ifyou and the school district agree in writ-ing that no agreement is possible, then the45-calendar-daytimelineforthedueprocess hearing starts the next day. If you and the school district agree to use the mediation process but have not yet reachedagreement,attheendofthe30-cal-


Resolution Process – 34 CFR §300.510

endar-day resolution period the mediation process may be continued until an agree-ment is reached if both parties agree to the continuationinwriting.However,ifeitheryou or the school district withdraws from the mediation process during this continua-tionperiod,thenthe45-calendar-daytime-line for the due process hearing starts the next day.

uWritten settlement agreement If a resolution to the dispute is reached at the resolution meeting, you and the school district must enter into a legally binding agreement that is: 1. Signed by you and a representative

of the school district who has the au-thority to bind the school district; and

2. Enforceable in any State court of competent jurisdiction (a State court that has authority to hear this type of case) or in a district court of the United States or by the SCDE.

uAgreement review period If you and the school district enter into an agreement as a result of a reso-lution meeting, either party (you or the school district) may void the agreement within3businessdaysof thetimethatboth you and the school district signed the agreement.

uGeneral Whenever a due process complaint is filed,youortheschooldistrictinvolvedin the dispute must have an opportunity for an impartial due process hearing, as described in the Due Process Complaint and Resolution Process sections.

uImpartial hearing officer Ataminimum,ahearingofficer:1. Must not be a SCDE or school district

employee involved in the education or careofthechild.However,apersonisnot an employee of the agency solely be-cause he or she is paid by the agency to

serveasahearingofficer;2. Must not have a personal or profession-al interest thatconflictswiththehear-ingofficer’sobjectivityinthehearing;

3.Mustbeknowledgeableandunderstandthe provisions of IDEA, Federal and State regulations pertaining to IDEA, and legal interpretations of IDEA by Federal and State courts; and

4.Musthavetheknowledgeandabilitytoconducthearings,andtomakeandwrite decisions, consistent with ap-propriate, standard legal practice.

Eachschooldistrictmustkeepa listof those persons who serve as hearing

officersthatincludesastatementofthequalificationsofeachhearingofficer.

uSubject matter of due process hearing

The party (you or the school district) that requests the due process hearing may not raise issues at the due process hearing that were not addressed in the due process complaint, unless the other party agrees.

uTimeline for requesting a hearing You or the school district must re-quest an impartial hearing on a due pro-

Hearings on Due Process Complaints

Impartial Due Process Hearing – 34 CFR §300.511

cess complaint within two years of the dateyouor theschooldistrictkneworshouldhaveknownabout the issuead-dressed in the complaint.

uExceptions to timeline The above timeline does not apply to you ifyoucouldnotfileadueprocesscomplaint because: 1. Theschooldistrictspecificallymisrepre-

sented that it had resolved the problem or issue you raised in your complaint; or

2. The school district withheld informa-tion from you that it was required to providetoyouunderPartBofIDEA.

uGeneral You have the right to represent your-self at a due process hearing (including a hearing related to disciplinary proce-dures) or an appeal with a hearing to re-ceive additional evidence, as described under the subheading, Appeal of deci-sions; impartial review. In addition, any party to a hearing has the right to:1.Be accompanied and advised by an

attorney and/or persons with special knowledge or training regarding theproblems of children with disabilities;

2.Be represented at the hearing by anattorney;

3. Presentevidenceandconfront,cross-ex-amine, and require witnesses to attend;

4.Prohibit the introductionofanyevi-dence at the hearing that has not been disclosed to the other party at least fivebusinessdaysbeforethehearing;

5.Obtain awritten, or, at your option,electronic, word-for-word record of the hearing; and

6. Obtain written, or, at your option, elec-tronicfindingsoffactanddecisions.

uAdditional disclosure of information

Atleastfivebusinessdayspriortoadue process hearing, you and the school district must disclose to each other all evaluations completed by that date and recommendations based on those evalu-ations that you or the school district in-tend to use at the hearing. A hearing officer or review officermay prevent any party that fails to com-ply with this requirement from introduc-


Hearing Rights – 34 CFR §300.512

ing the relevant evaluation or recom-mendation at the hearing without the consent of the other party.

uParental rights at hearings You must be given the right to: 1.Haveyourchildpresentatthehearing;2. Open the hearing to the public; and3.Have the record of the hearing, thefindings of fact, and decisions pro-vided to you at no cost.

uDecision of the hearing officer Ahearingofficer’sdecisiononwheth-er your child received a free appropriate public education (FAPE) must be based on evidence and arguments that directly relate to FAPE. In matters alleging a procedural violation (such as “an incomplete IEPTeam”),ahearingofficermayfindthatyour child did not receive FAPE only if the procedural violations: 1. Interfered with your child’s right to

a free appropriate public education (FAPE);

2.Significantly interfered with youropportunity to participate in the de-cision-making process regarding theprovision of a free appropriate public education (FAPE) to your child; or

3.Causedyourchild tobedeprivedofaneducationalbenefit.

Noneoftheprovisionsdescribedabovecan be interpreted to prevent a hearing officer fromorderinga schooldistrict tocomply with the requirements in the pro-cedural safeguards section of the Federal regulationsunderPartBofIDEA(34CFR§§300.500through300.536). None of the provisions under the

headings Filing a Due Process Com-plaint, Due Process Complaint, Model Forms, Resolution Process, Impar-tial Due Process Hearing, Hearing Rights and Hearing Decisions(34CFR§§300.507 through 300.513) can affectyour right to file an appeal of the dueprocess hearing decision with the SCDE.

uSeparate request for a due process hearing Nothing in the procedural safeguardssection of the Federal regulations un-derPartBof IDEA(34CFR§§300.500through300.536)canbeinterpretedtopre-


Hearing Decisions – 34 CFR §300.513

ventyoufromfilingaseparatedueprocesscomplaint on an issue separate from a due processcomplaintalreadyfiled.

uFindings & decision provided to the advisory panel & general public The SCDE after deleting any person-allyidentifiableinformation,must:1. Providefindingsanddecisionsinthedue

process hearing or appeal to the State special education advisory panel; and

2.Make those findings and decisionsavailable to the public.

A decision made in a due process hearing (including a hearing relating to disciplinaryprocedures)isfinal,exceptthat any party involved in the hearing (you or the school district) may appeal the decision to the SCDE.

uAppeal of decisions; impartial review

If a party (you or the school district) is aggrieved (harmed) by the findingsand decision in the hearing, an appeal may be brought to the SCDE.

If there is an appeal, the SCDE must conductanimpartialreviewofthefindingsand decision appealed. The official con-ducting the review must:1. Examine the entire hearing record;2. Ensure that the procedures at the

hearing were consistent with the re-quirements of due process;

3. Seek additional evidence if neces-sary. If a hearing is held to receive ad-ditional evidence, the hearing rights described under the heading Hearing Rights apply;

4.Givethepartiesanopportunityfororal

or written argument, or both, at the dis-cretionofthereviewingofficial;

5.Make an independent decision oncompletion of the review; and

6. Give you and the school district a copy of the written, or, at your option, elec-tronicfindingsoffactanddecisions.

uFindings & decision provided to the advisory panel & general public The SCDE, after deleting any person-

Appeals

Finality of Decision; Appeal; Impartial Review – 34 CFR §300.514

allyidentifiableinformation,must:1.Providethefindingsanddecisionsof

the appeal to the State special educa-tion advisory panel; and

2.Make those findings and decisionsavailable to the public.

uFinality of review decision Thereviewingofficial’sdecisionisfi-nal unless you or the school district brings a civil action, as described under the head-ing Civil Actions, Including the Time Pe-riod in Which to File Those Actions.


The school district must ensure that notlaterthan45calendardaysaftertheexpirationofthe30-calendar-dayperiodfor resolution meetings or, as described under the sub-heading Adjustments to the 30-calendar-day resolution period,notlaterthan45calendardaysaftertheexpiration of the adjusted time period:

1.A final decision is reached in thehearing; and

2. A copy of the decision is mailed to you and the school district.

The SCDE must ensure that not later than30calendardaysafterthereceiptofa request for a review:

1.Afinaldecisionisreachedin there-view; and

2. A copy of the decision is mailed to you and the school district.

A hearing or reviewing officer maygrantspecificextensionsoftimebeyondtheperiodsdescribedabove(45calendardaysforahearingdecisionand30calen-

Appeals

Timelines & Convenience of Hearings & Review – 34 CFR §300.515

dar days for a review decision) if you or theschooldistrictmakearequestforaspecificextensionofthetimeline. Each hearing and review involving oral arguments must be conducted at a time and place that is reasonably convenient to you and your child.

uGeneral Any party (you or the school district) whodoesnotagreewiththefindingsanddecision in the State-level review has the right to bring a civil action with respect to the matter that was the subject of the due process hearing (including a hearing relating to disciplinary procedures). The action may be brought in a State court of competent jurisdiction (a State court that has authority to hear this type of case)

or in a district court of the United States without regard to the amount in dispute.

uTime limitation The party (you or school district) bring-ingtheactionshallhave90calendardaysfrom the date of the decision of the State reviewofficialtofileacivilaction.

uAdditional procedures In any civil action, the court:

1. Receives the records of the adminis-trative proceedings;

2.Hears additional evidence at yourrequest or at the school district's re-quest; and

3.Bases its decisionon thepreponder-ance of the evidence and grants the relief that the court determines to be appropriate.

Under appropriate circumstances, ju-

Appeals

Civil Actions, Including Time Period in Which to File Those Actions – 34 CFR §300.516

dicial relief may include reimbursement of private school tuition and compensa-tory education services.

uJurisdiction of district courts The district courts of the United States have authority to rule on actions broughtunderPartBof IDEAwithoutregard to the amount in dispute.

uRule of construction Nothing in PartB of IDEA restrictsor limits the rights, procedures, and rem-edies available under the U.S. Constitu-tion, the Americans with Disabilities Act of 1990, Title V of the Rehabilitation

Actof1973(Section504),orotherFed-eral laws protecting the rights of chil-dren with disabilities, except that before the filing of a civil action under theselawsseekingreliefthatisalsoavailableunderPartBofIDEA,thedueprocessprocedures described above must be

exhausted to the same extent as would be required if thepartyfiled theactionunderPartBofIDEA.Thismeansthatyou may have remedies available under other laws that overlap with those avail-able under IDEA, but in general, to ob-tain relief under those other laws, you

mustfirst use the available administra-tive remedies under IDEA (i.e., the due process complaint; resolution process, including the resolution meeting; and impartial due process hearing proce-dures) before going directly into court.

Except as provided below under the heading Procedures When Disciplining Children With Disabilities, once a due process complaint is sent to the other par-ty, during the resolution process time pe-riod, and while waiting for the decision of any impartial due process hearing or court proceeding, unless you and the State or school district agree otherwise, your child must remain in his or her current educa-tional placement.

If the due process complaint involves an application for initial admission to public school, your child, with your con-sent, must be placed in the regular pub-lic school program until the completion of all such proceedings. If the due process complaint involves an application for initial services under PartBofIDEAforachildwhoistran-sitioning from being served under Part CofIDEAtoPartBofIDEAandwho

is no longer eligible for Part C services because the child has turned three, the school district is not required to pro-vide the Part C services that the child has been receiving. If the child is found eligibleunderPartBof IDEAandyouconsent for your child to receive special education and related services for the firsttime,then,pendingtheoutcomeofthe proceedings, the school district must provide those special education and re-

Appeals

Child’s Placement While Due Process Complaint & Hearing Are Pending – 34 CFR §300.518

lated services that are not in dispute (those which you and the school district both agree upon). IfaStatereviewofficialinanadmin-istrative appeal proceeding agrees with you that a change of placement is appro-priate, that placement must be treated as your child’s current educational place-ment where your child will remain while waiting for the decision of any impartial due process hearing or court proceeding.

uGeneral In any action or proceeding brought underPartBof IDEA, thecourt, in itsdiscretion, may award reasonable attor-neys’ fees as part of the costs to you, if you prevail (win). In any action or proceeding brought underPartBof IDEA, thecourt, in itsdiscretion, may award reasonable attor-neys’ fees as part of the costs to a pre-vailing SCDE or school district, to be paid by your attorney, if the attorney: (a) filedacomplaintor court case that thecourt finds is frivolous, unreasonable,or without foundation; or (b) continued to litigate after the litigation clearly be-came frivolous, unreasonable, or with-out foundation; or In any action or proceeding brought underPartBof IDEA, thecourt, in itsdiscretion, may award reasonable at-torneys’ fees as part of the costs to a prevailing SCDE or school district, to be paid by you or your attorney, if your request for a due process hearing or later court case was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to unneces-sarily increase the cost of the action or proceeding (hearing).

uAward of fees A court awards reasonable at-torneys’ fees as follows:1. Fees must be based on rates

prevailing in the community in which the action or proceeding aroseforthekindandqualityofservices furnished.Nobonusormultiplier may be used in calcu-lating the fees awarded.

2. Attorneys’ fees may not be awarded and related costs may not be reim-bursed in any action or proceeding under Part B of IDEA for servicesperformed after a written offer of set-tlement is made to you if:

a - The offer is made within the time prescribed by Rule 68 of the Federal Rules of Civil Pro-cedure or, in the case of a due process hearing or State-level review, at any time more than 10calendardaysbeforethepro-ceeding begins;

b-Theofferisnotacceptedwithin10calendar days; and

c - The court or administrative hear-ing officer finds that the relieffinally obtained by you is notmore favorable to you than the offer of settlement.

Despite these restrictions, an award of attorneys’ fees and related costs may be made to you if you prevail and you were substantially justified in reject-ing the settlement offer.

3. Feesmaynotbeawardedrelatingtoanymeeting of the individualized education program (IEP) Team unless the meeting is held as a result of an administrative proceeding or court action. Fees also may not be awarded for a mediation as described under the heading Mediation, unlessorderedbyaHearingOfficerorthe Court.

A resolution meeting, as described under the heading Resolution Pro-cess, is not considered a meeting con-vened as a result of an administrative hearing or court action, and also is not considered an administrative hearing or court action for purposes of these attorneys’ fees provisions.

The court reduces, as appropriate, the

Appeals

Attorney’s Fees – 34 CFR §300.517

amount of the attorneys’ fees awarded underPartBofIDEA,ifthecourtfindsthat:1. You, or your attorney, during the

course of the action or proceeding, unreasonably delayed the final reso-lution of the dispute;

2. The amount of the attorneys’ fees other-wise authorized to be awarded unreason-ably exceeds the hourly rate prevailing in the community for similar services byattorneysofreasonablysimilarskill,reputation, and experience;

3.The timespentand legalservicesfur-nished were excessive considering the nature of the action or proceeding; or

4.Theattorneyrepresentingyoudidnotprovide to the school district the ap-propriate information in the due pro-cess request notice as described under the heading Due Process Complaint.

However, the court may not reducefees if the court finds that the State orschool district unreasonably delayed the finalresolutionoftheactionorproceed-ing or there was a violation under the procedural safeguards provisions of Part BofIDEA.


uFor free/low cost legal services, contact: Protection and Advocacy Protection and Advocacy System For People with Disabilities, Inc. Suite 208, 3710 Landmark Drive Columbia, South Carolina 29204 (803) 782-0639; Toll Free: 1-800-922-5225


uCase-by-case determination School personnel may consider any unique circumstances on a case-by-case basis when determining whether a change of placement, made in accor-dance with the following requirements related to discipline, is appropriate for a child with a disability who violates a school code of student conduct.

uGeneral Totheextentthattheyalsotakesuchaction for children without disabilities, school personnel may, for not more than 10 school days in a row, remove a child with a disability who violates a code of student conduct from his or her current placement to an appropriate interim al-ternative educational setting, another setting, or suspension. School personnel may also impose additional removals of the child of not more than 10 school days in a row in that same school year

for separate incidents of misconduct, as long as those removals do not constitute a change of placement (see the heading Change of Placement Because of Dis-ciplinary Removalsforthedefinition).Once a child with a disability has been removed from his or her current place-

ment for a total of 10 school days in the same school year, the school district must, during any subsequent days of re-moval in that school year, provide ser-vices to the extent required below under the sub-heading Services.

Procedures When Disciplining Children With Disabilities

Authority of School Personnel – 34 CFR §300.530

uAdditional authority If the behavior that violated the stu-dent code of conduct was not a mani-festation of the child’s disability (see the subheading Manifestation determi-nation) and the disciplinary change of placement would exceed 10 school days in a row, school personnel may apply the disciplinary procedures to that child with a disability in the same manner and for the same duration as it would to children without disabilities, except that the school must provide services to that child as described below under Services. The child’s IEP Team determines the in-terim alternative educational setting for such services.

uServices The school district is not required to provide services to a child with a dis-ability or a child without a disability who has been removed from his or her

South Carolina law limitssuspensions as described below:

SECTION 59 63 220. Suspension of pupils by administrator. Any district board may confer upon any administrator the author-ity to suspend a pupil from a teacher’s class or from the school not in excess of 10 days for any one offense and for not more than 30 days in any one school year but no such administrator may suspend a pupil from school during the last 10 days of a year if the suspension will make the pupil ineligible to receive credit for the school year without the approval of the school board unless the presence of the pupil constitutes an actual threat to a class or a school or a hearing is granted within 24 hours of the suspen-sion.

current placement for 10 school days or less in that school year. A child with a disability who is re-moved from the child’s current place-ment for more than 10 school days and the behavior is not a manifestation of the child’s disability (see subheading Mani-festation determination) or who is re-moved under special circumstances (see the subheading Special circumstances) must: 1. Continue to receive educational ser-

vices (have available a free appropriate public education), so as to enable the child to continue to participate in the general education curriculum, although in another setting (that may be an inter-im alternative educational setting), and to progress toward meeting the goals set out in the child’s IEP; and

2. Receive, as appropriate, a functional behavioral assessment, and behavior-alinterventionservicesandmodifica-tions, which are designed to address the behavior violation so that it does not happen again.

After a child with a disability has been removed from his or her current placement for 10 school days in thatsame school year, and if the current re-movalisfor10schooldaysinaroworless and if the removal is not a change of placement (see definition below), thenschool personnel, in consultation with at least one of the child’s teachers, de-termine the extent to which services are needed to enable the child to continue to participate in the general education cur-riculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP. If the removal is a change of place-ment (see the heading Change of Place-ment Because of Disciplinary Remov-

als), the child’s IEP Team determines the appropriate services to enable the child to continue to participate in the general education curriculum, although in another setting (that may be an inter-im alternative educational setting), and to progress toward meeting the goals set out in the child’s IEP.

uManifestation determination Within 10 school days of any deci-sion to change the placement of a child with a disability because of a violation of a code of student conduct (except for a removal that is for 10 school days in a row or less and not a change of place-ment), the school district, you, and other relevant members of the IEP Team (as determined by you and the school dis-trict) must review all relevant informa-tion in the student’s file, including thechild’s IEP, any teacher observations, and any relevant information provided by you to determine: 1. If the conduct in question was caused

by, or had a direct and substantial re-lationship to, the child’s disability; or

2. If the conduct in question was the di-rect result of the school district’s fail-ure to implement the child’s IEP.

If the school district, you, and other relevant members of the child’s IEP Team determine that either of those con-ditions was met, the conduct must be determined to be a manifestation of the child’s disability. If the school district, you, and other relevant members of the child’s IEP Team determine that the conduct in question was the direct result of the school district’s fail-ure to implement the IEP, the school dis-trictmust take immediateaction to rem-edythosedeficiencies.

uDetermination that behavior was manifestation of child's disability If the school district, you, and other relevant members of the IEP Team de-termine that the conduct was a manifes-tation of the child’s disability, the IEP Team must either:1. Conduct a functional behavioral as-

sessment, unless the school district had conducted a functional behavior-al assessment before the behavior that resulted in the change of placement occurred, and implement a behavioral intervention plan for the child; or

2. If a behavioral intervention plan already has been developed, review the behav-ioral intervention plan, and modify it, as necessary, to address the behavior.

Except as described below under the sub-heading Special circumstances, the school district must return your child to the placement from which your child was removed, unless you and the district agree to a change of placement as part of themodificationofthebehavioralinter-vention plan.

uSpecial circumstances Whether or not the behavior was a manifestation of your child’s disability, school personnel may remove a student to an interim alternative educational setting (determined by the child’s IEP Team)fornotmorethan45schooldays,if your child: 1.Carries aweapon (see the definition

below) to school or has a weapon at school, on school premises, or at a school function under the jurisdiction of the SCDE or a school district;

2. Knowingly has or uses illegal drugs (see

thedefinitionbelow),orsellsorsolicitsthe sale of a controlled substance, (see the definition below),while at school,on school premises, or at a school func-tion under the jurisdiction of the SCDE or a school district; or

3.Has inflicted serious bodily injury(seethedefinitionbelow)uponanoth-er person while at school, on school premises, or at a school function un-der the jurisdiction of the SCDE or a school district.

uDefinitions • Controlled substance means a drug or other substance identifiedunderschedulesI, II, III, IV,orVinsection202(c)oftheControlledSub-stances Act (21 U.S.C. 812(c)).

• Illegal drug means a controlled sub-stance; 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 legal-ly possessed or used under any other au-thority under that Act or under any other provision of Federal law.

• Serious bodily injury has the meaning given the term ‘‘seriousbodilyinjury’’underparagraph(3)ofsubsection(h)ofsection1365oftitle18, United States Code.

• Weapon has the meaning given the term ‘‘dangerous weapon’’ under para-graph(2)ofthefirstsubsection(g)ofsec-tion930oftitle18,UnitedStatesCode.

uNotification On thedate itmakes thedecision tomakearemovalthatisachangeofplace-ment of your child because of a violation of a code of student conduct, the school district must notify you of that decision, and provide you with a procedural safe-guards notice.


A removal of your child with a dis-ability from your child’s current educa-tional placement is a change of place-ment if:1.The removal is for more than 10

school days in a row; or

2. Your child has been subjected to a se-ries of removals that constitute a pat-tern because:

a. The series of removals total more than10schooldaysinaschoolyear;

b. Your child’s behavior is substan-tially similar to the child’s be-

havior in previous incidents that resulted in the series of removals; and

c. Of such additional factors as the length of each removal, the total amount of time your child has been removed, and the proximity of the


Change of Placement Because of Disciplinary Removals – 34 CFR §300.536removals to one another.

Whether a pattern of removals con-stitutes a change of placement is deter-mined on a case-by-case basis by the school district and, if challenged, is sub-ject to review through due process and judicial proceedings.

The individualized education program (IEP) Team determines the interim alter-

native educational setting for removals that are changes of placement, and re-

movals under the subheadings Additional authority and Special circumstances.


Determination of Setting – 34 CFR §300.531

uGeneral Youmayfileadueprocesscomplaint(see the heading Due Process Complaint Procedures) to request a due process hearing if you disagree with: 1. Any decision regarding placement made

under these discipline provisions; or 2. The manifestation determination de-

scribed above. Theschooldistrictmayfileaduepro-cess complaint (see above) to request a due process hearing if it believes that maintaining the current placement of yourchildissubstantiallylikelytoresultin injury to your child or to others.

uAuthority of hearing officer Ahearingofficerthatmeetstherequire-ments described under the subheading Im-partial hearing officer must conduct the dueprocesshearingandmakeadecision.Thehearingofficermay:1. Return your child with a disability

to the placement from which your child was removed if the hearing officer determines that the removalwas a violation of the requirements described under the heading Author-ity of School Personnel, or that your child’s behavior was a manifestation of your child’s disability; or

2. Order a change of placement of your child with a disability to an appropriate interim alternative educational setting

fornotmorethan45schooldaysifthehearing officer determines that main-taining the current placement of your childissubstantiallylikelytoresultininjury to your child or to others.

These hearing procedures may be repeated, if the school district believes that returning your child to the original placementissubstantiallylikelytoresultin injury to your child or to others. Wheneveryouoraschooldistrictfilesa due process complaint to request such a hearing, a hearing must be held that meets the requirements described under the headings Due Process Complaint Procedures, Hearings on Due Process Complaints and Appeal of decisions; impartial review, except as follows: 1. The school district must arrange for an


Appeal – 34 CFR §300.532

expedited due process hearing, which must occur within 20 school days of the date the hearing is requested and must result in a determination within 10 school days after the hearing.

2. Unless you and the school district agree in writing to waive the meeting, or agree to use mediation, a resolution meetingmustoccurwithin7calendardays of receiving notice of the due process complaint. The hearing may proceed unless the matter has been re-solved to the satisfaction of both par-tieswithin15calendardaysofreceiptof the due process complaint.

You or the school district may appeal the decision in an expedited due process hearing in the same way as for decisions in other due process hearings (see the heading Appeal).

When, as described above, you or the school district file a due process com-plaint related to disciplinary matters,

your child must (unless you and the school district agree otherwise) remain in the interim alternative educational

setting pending the decision of the hear-ingofficer,oruntiltheexpirationofthetime period of removal as provided for


Placement During Appeals – 34 CFR §300.533

and described under the heading Au-thority of School Personnel, whichever occursfirst.

uGeneral If your child has not been determined eligible for special education and relat-ed services and violates a code of stu-dent conduct, but the school district had knowledge (as determined below) be-fore the behavior that brought about the disciplinary action occurred, that your child was a child with a disability, then your child may assert any of the protec-tions described in this notice.

uBasis of knowledge for disciplinary matters A school district will be deemed to have knowledge that your child is achild with a disability if, before the be-havior that brought about the disciplin-ary action occurred:1. You expressed concern in writing to

supervisory or administrative person-nel of the appropriate educational agency, or to your child’s teacher that your child is in need of special educa-tion and related services;

2. You requested an evaluation related to eligibility for special education and related servicesunderPartBofIDEA; or

3.Your child’s teacher or other schooldistrict personnel expressed specificconcerns about a pattern of behavior demonstrated by your child directly to the school district’s director of spe-cial education or to other supervisory personnel of the school district.

uException A school district would not be deemed tohavesuchknowledgeif:

1. You have not allowed an evaluation of your child or have refused special education services; or

2. Your child has been evaluated and de-termined to not be a child with a dis-abilityunderPartBofIDEA.

uConditions that apply if there is no basis of knowledge If prior to taking disciplinary mea-sures against your child, a school district doesnothaveknowledgethatyourchildis a child with a disability, as described above under the sub-headings Basis of knowledge for disciplinary matters and Exception, your child may be subjected to the disciplinary measures that are ap-plied to children without disabilities who engage in comparable behaviors.


Protections for Children NotYetEligibleforSpecialEducation&RelatedServices – 34 CFR §300.534

However,ifarequestismadeforanevaluation of your child during the time period in which your child is subjected to disciplinary measures, the evaluation must be conducted in an expedited man-ner. Until the evaluation is completed, your child remains in the educational placement determined by school author-ities, which can include suspension or expulsion without educational services. If your child is determined to be a childwithadisability, taking intocon-sideration information from the evalua-tion conducted by the school district, and information provided by you, the school district must provide special education and related services in accordance with PartBofIDEA,includingthedisciplin-ary requirements described above.

uPart B of IDEA does not:1. Prohibit an agency from reporting a

crime committed by a child with a disability to appropriate authorities; or

2. 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.

uTransmittal of records If a school district reports a crime

committed by a child with a disability, the school district:1. Must ensure that copies of the child’s

special education and disciplinary records are transmitted for consider-ation by the authorities to whom the


Referral to & Action byLawEnforcement&JudicialAuthorities– 34 CFR §300.535

agency reports the crime; and 2. May transmit copies of the child’s

special education and disciplinary re-cords only to the extent permitted by the Family Educational Rights and Privacy Act (FERPA).

uGeneral Part B of IDEA does not require aschool district to pay for the cost of educa-tion, including special education and relat-ed services, of your child with a disability at a private school or facility if the school district made a free appropriate public ed-ucation (FAPE) available to your child and you choose to place the child in a private school or facility. However, the schooldistrict where the private school is located must include your child in the population whose needs are addressed under the Part Bprovisionsregardingchildrenwhohavebeen placed by their parents in a private schoolunder34CFR§§300.131through300.144.

uReimbursement for private school placement If your child previously received special education and related services

under the authority of a school district, and you choose to enroll your child in a private preschool, elementary school, or secondary school without the con-sent of or referral by the school district, acourtorahearingofficermayrequirethe agency to reimburse you for the cost of that enrollment if the court or hear-ingofficerfindsthattheagencyhadnotmade a free appropriate public educa-tion (FAPE) available to your child in a timely manner prior to that enrollment and that the private placement is appro-priate.A hearing officer or court mayfind your placement to be appropriate,even if the placement does not meet the State standards that apply to education provided by the SCDE and school dis-tricts.

uLimitation on reimbursement The cost of reimbursement described in the paragraph above may be reduced

or denied:1. If: (a) At the most recent individual-

ized education program (IEP) meet-ing that you attended prior to your removal of your child from the pub-lic school, you did not inform the IEP Team that you were rejecting the placement proposed by the school district to provide FAPE to your child, including stating your concerns and your intent to enroll your child in a private school at public expense; or (b)At least 10business days (in-cluding any holidays that occur on a business day) prior to your removal of your child from the public school, you did not give written notice to the school district of that information;

2. If, prior to your removal of your child from the public school, the school dis-trict provided prior written notice to you of its intent to evaluate your child (including a statement of the purpose of

Requirement for Unilateral Placement byParentsofChildreninPrivateSchoolsatPublicExpense– 34 CFR §300.148the evaluation that was appropriate and reasonable),butyoudidnotmakethechild available for the evaluation; or

3.Upona court’sfinding thatyour ac-tions were unreasonable.

However,thecostofreimbursement:1. Must not be reduced or denied for

failure to provide the notice if: (a) The school prevented you from providing the notice; (b) You had not received notice of your responsibility to pro-vide the notice described above; or (c) Compliance with the requirements abovewouldlikelyresultinphysicalharm to your child; and

2. May, in the discretion of the court or a hearing officer, not be reducedor denied for your failure to provide the required notice if: (a) You are not literate or cannot write in English; or (b) Compliance with the above re-quirementwouldlikelyresultinseri-ous emotional harm to your child.

It is the responsibility of the school dis-trict where a local detention center is locat-ed to provide students with disabilities a

free appropriate public education (FAPE) and ensure compliance with applicable State and Federal regulations.

FreeAppropriatePublicEducation(FAPE) in Local Detention Centers

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