2460.05 - PROCEDURAL SAFEGUARDS FOR SPECIAL EDUCATION STUDENTS

Grant County School

Bylaws & Policies

2460.05 - PROCEDURAL SAFEGUARDS FOR SPECIAL EDUCATION STUDENTS

The Grant County Board of Education shall protect the rights of each exceptional student and his/her parents, with respect to the provision of a free appropriate public education. Specific methods for addressing these requirements are set forth in AG 2460.05.

Prior Notice: Content of Notice.

Written notice must be given to the parents of an exceptional student within a reasonable time before the County:

			a.	proposes to initiate or change the identification, evaluation or educational placement of the student or the provision of a free appropriate public education to the student;
			b.	refuses to initiate or change the identification, evaluation or educational placement of the student or the provision of a free appropriate public education to the student.

		2.	If the notice relates to an action proposed by the County that also requires parent consent, the County may give notice at the same time it requests parent consent.
		3.	The notice must include:

			a.	a description of the action proposed or refused by the County, an explanation of why the County proposes or refuses to take the action, and a description of any options the County considered and the reasons why those options were rejected;
			b.	a description of each evaluation procedure, test, record or report the County used as a basis for the proposal or refusal;
			c.	a description of any other factors which are relevant to the County’s proposal or refusal;
			d.	a statement that the parents of a student with an exceptionality have protection under procedural safeguards and, if this notice is not an initial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained;
			e.	sources for parents to contact to obtain assistance in understanding the provisions of the procedural safeguards.

Procedural Safeguards Notice.

A copy of the procedural safeguards available to the parents must be given to the parents, at a minimum:

			a.	upon initial referral for evaluation;
			b.	upon each notification of an IEP team meeting;
			c.	upon reevaluation of the student;
			d.	upon receipt of a request for due process hearing;
			e.	with notification of a disciplinary change of placement.

The procedural safeguards notice must include a full explanation of all the procedural safeguards relating to:

			a.	independent educational evaluation;
			b.	prior written notice;
			c.	parental consent;
			d.	access to educational records;
			e.	opportunity to initiate due process hearings;
			f.	the student’s placement during pendency of due process proceedings;
			g.	procedures for students who are subject to placement in an interim alternative educational setting;
			h.	requirements for unilateral placement by parents of students in private schools at public expense;
			i.	mediation;
			j.	due process hearings, including requirements for disclosure of evaluation results and recommendations;
			k.	civil actions;
			l.	attorneys’ fees;
			m.	the State complaint procedures, including a description of how to file a complaint and the timelines under those procedures.

Notice in Understandable Language.

Both prior notice and the notice of procedural safeguards must be:

		1.	written in language understandable to the general public;
		2.	provided in the native language of the parent or other mode of communication used by the parent, unless it clearly is not feasible to do so.

If the native language or other mode of communication of the parent is not a written language, the County Board shall take steps to ensure:

		1.	that the notice is translated orally or by other means to the parent in the parent’s native language or other mode of communication;
		2.	that the parent understands the content of the notice;
		3.	that there is written evidence that the above requirements have been met.

Parental Consent.

		1.	Granting of consent by the parent is voluntary and may be revoked at any time. If the parent revokes consent, the revocation is not retroactive; that is, it does not negate an action that has occurred after the consent was given and before the consent was revoked.
		2.	Parental consent must be obtained before:

			a.	conducting an initial evaluation or reevaluation;
			b.	initial provision of special education and related services to an exceptional student.

When a student with a disability transitions from Part C to Part B, the County Board shall:

			a.	provide the student’s parents a detailed explanation of the differences between an IFSP and an IEP;
			b.	if the parents choose an IFSP, obtain written informed consent from the parents.

		4.	Except for pre-placement evaluation, initial placement, and reevaluation, refusal to consent shall not be used to deny the parent or student any other service, benefit or activity of the County Board.
		5.	Parental consent is not required:

			a.	before reviewing existing data as part of an evaluation or a reevaluation;
			b.	before administering a test or other evaluation that is administered to all students unless, before administration of that test or evaluation, consent is required of parents of all students;
			c.	for reevaluation, if the County can demonstrate that it has taken reasonable measures to obtain that consent and the student’s parent has failed to respond. The County must have a record of its attempts to obtain parental consent such as:

		1.	detailed records of telephone calls made or attempted and the results of those calls;
		2.	copies of correspondence sent to the parents and any responses received;
		3.	detailed records of visits made to the parent’s home or place of employment and the results of those visits.

If the parents of a student with an exceptionality refuse consent for initial evaluation or a reevaluation, the County may continue to pursue those evaluations by using the due process hearing procedures, or the mediation procedures if appropriate.

Surrogate Parents.

The County shall assure that the rights of a student are protected when:

			a.	no parent can be identified;
			b.	the County Board, after reasonable efforts, cannot discover the whereabouts of a parent;
			c.	the student is a ward of the State under the West Virginia Statutes.

The duty of the County Board includes the assignment of an individual to act as a surrogate for the parents. This must include a method:

			a.	for determining whether a student needs a surrogate parent;
			b.	for assigning a surrogate parent to the student.

		3.	The County Board shall ensure that a person selected as a surrogate has no interest that conflicts with the interests of the student represented and has knowledge and skills that ensure adequate representation of the student.
		4.	A person assigned as a surrogate may not be an employee of the West Virginia Department of Education, the County Board or any other agency that is involved in the education or care of the student. A person who otherwise qualifies to be a surrogate parent is not an employee of the County Board solely because s/he is paid by the County to serve as a surrogate parent.
		5.	The County Board may select as a surrogate a person who is an employee of a non-public agency that only provides non-educational care for the student and who meets the standards in 3 and 4 above.
		6.	The surrogate parent may represent the student in all matters related to:

			a.	the identification, evaluation and educational placement of the student;
			b.	the provision of a free appropriate public education to the student.

Transfer of Parental Rights at Age of Majority.

When an exceptional student reaches the age of majority (18) under State law that applies to all students (except for a student with an exceptionality who has been determined to be incompetent under State law):

			a.	the County Board shall provide any notice required to both the individual and the parents; and all other rights accorded to parents under this policy transfer to the student;
			b.	all rights accorded to parents under this policy transfer to students who are incarcerated in an adult or juvenile State or local correctional institution.

Whenever rights are transferred to a student, the County Board shall notify the individual and the parents of the transfer of rights.

Parental Participation – To ensure parental participation in the special education process, the County Board shall:

afford the parents of an exceptional student an opportunity to:

			a.	inspect and review all education records with respect to the identification, evaluation and educational placement of the student, and the provision of a free appropriate public education to the student;
			b.	participate in meetings with respect to the identification, evaluation, and educational placement of the student and the provision of a free appropriate public education to the student.

provide written notice to ensure that parents have the opportunity to participate in meetings, including EC and IEP meetings, with respect to the identification, evaluation and educational placement of the student, and the provision of a free, appropriate public education to the student:

The County Board shall take steps to ensure that one (1) or both of the parents of the exceptional student are present at each meeting and are afforded the opportunity to participate, including:

				1)	notifying parents of the meeting early enough to ensure that they will have the opportunity to attend;
				2)	scheduling the meeting at a mutually agreed on time and place.

The written notice must include:

				1)	the purpose, time, and location of the meeting;
				2)	who will be in attendance;
				3)	an explanation that at the discretion of the County Board or parent other individuals who have knowledge or special expertise regarding the student, as determined by the County or the parent inviting the individual, can attend the meeting;
				4)	a full explanation of all the procedural safeguards available to the parents.

If a purpose of the meeting is also the consideration of adolescent transition service needs for the student, at age fourteen (14), or younger if appropriate, the written notice must also:

				1)	indicate this purpose;
				2)	indicate that the County Board will invite the student.

If a purpose of the meeting is also the consideration of needed adolescent transition services for the student, at age sixteen (16) or younger if appropriate, the written notice must also:

				1)	indicate this purpose;
				2)	indicate that the County Board will invite the student;
				3)	identify any other agency that will be invited to send a representative.

		3.	take whatever action is necessary to ensure that the parent understands the proceedings at a meeting including arranging for an interpreter for parents who are deaf or whose native language is other than English;
		4.	conduct the EC and/or IEP team meeting without a parent in attendance only when the County Board has documentation that other methods of ensuring parent participation, such as correspondence, telephone calls, and visits to the parents’ home have been attempted.

			a.	If neither parent can attend, the County Board shall use other methods to ensure parent participation, including individual or conference telephone calls.
			b.	A meeting may be conducted without a parent in attendance if the County Board is unable to convince the parents that they should attend. In this case, the County Board must have a record of its attempts to arrange a mutually agreed on 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 the parents and any responses received;
				3)	detailed records of visits made with the parents and the results of those visits.

		5.	obtain written parental consent for initial placement in special education or implement mediation or due process hearing procedures to obtain consent;
		6.	provide the parent a copy of the IEP, at no cost to the parent.

Evaluation.

The County Board shall ensure, at a minimum, that the following requirements are met:

Tests and other evaluation materials used to evaluate a student:

				1)	are selected and administered so as not to be discriminatory on a racial or cultural basis;
				2)	are provided and administered in the student’s native language or other mode of communication, unless it is clearly not feasible to do so.

		2.	Materials and procedures used to evaluate a student with limited English proficiency are selected and administered to ensure that they measure the extent to which the student has an exceptionality and needs special education, rather than measuring the student’s English language skills.
		3.	A variety of evaluation tools and strategies are used to gather relevant functional and developmental information about the student, including information provided by the parent, and information related to enabling the student to be involved in and progress in the general curriculum (or for a preschool student, to participate in appropriate activities), that may assist in determining:

			a.	whether the student is a student with an exceptionality;
			b.	the content of the student’s IEP.

Any standardized tests that are given to a student:

			a.	have been validated for the specific purpose for which they are used;
			b.	are administered by trained and knowledgeable personnel in accordance with any instructions provided by the producer of the tests;
			c.	if an assessment is not conducted under standard conditions, a description of the extent to which it varied from standard conditions (e.g., the qualifications of the person administering the test, or the method of test administration) must be included in the evaluation report.

		5.	Tests and other evaluation materials include those tailored to evaluate specific areas of educational need and not merely those that are designed to provide a single general intelligence quotient.
		6.	Tests are selected and administered so as best to ensure that if a test is administered to a student with impaired sensory, manual, or speaking skills, the test results accurately reflect the student’s ability or achievement level or whatever other factors the test purports to measure, rather than reflecting the student’s impaired sensory, manual, or speaking skills (unless those skills are the factors that the test purports to measure).
		7.	No single procedure is used as the sole criterion for determining whether a student is a student with an exceptionality and for determining an appropriate educational program for the student.
		8.	The student is evaluated in all areas related to the suspected exceptionality, including, if appropriate, health, vision, hearing, social and emotional status, adaptive skills, general intelligence, academic performance, communicative status, and motor abilities.
		9.	In evaluating each student with an exceptionality, the evaluation is sufficiently comprehensive to identify all of the student’s special education and related services needs, whether or not commonly linked to the category of exceptionality in which the student has been classified.
		10.	The County Board uses technically sound instruments that may evaluate the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.
		11.	The County Board uses evaluation tools and strategies that provide relevant information that directly assists persons in determining the educational needs of the student.

Independent Education Evaluation.

		1.	The parents of an exceptional student have the right to obtain an independent educational evaluation of the student. The County Board shall provide to parents, on request for an independent education evaluation, information about where an independent educational evaluation may be obtained and the agency criteria applicable set forth in (6) of this section.
		2.	A parent has the right to an independent educational evaluation at Board expense if the parent disagrees with an evaluation obtained by the County Board. If a parent requests an independent educational evaluation at Board expense, the County Board must, without unnecessary delay, either initiate a due process hearing to show that its evaluation is appropriate, or ensure an independent educational evaluation is provided at Board expense, unless the County Board demonstrates in a due process hearing that the evaluation obtained by the parent did not meet the County Board’s criteria. If the County Board initiates a hearing and the final decision is that its evaluation is appropriate, the parent still has the right to an independent education evaluation but not at Board expense.
		3.	If a parent requests an independent educational evaluation, the County Board may ask for the parent’s reason why s/he objects to its evaluation. However, the explanation by the parent may not be required and the County Board may not unreasonably delay either providing the independent educational evaluation at Board expense or initiating a due process hearing to defend the County Board’s evaluation.
		4.	If the parent obtains an independent educational evaluation at private expense, the results of the evaluation:

			a.	must be considered by the County Board, if it meets County criteria, in any decision made with respect to the provision of a free appropriate public education to the student;
			b.	may be presented as evidence at a due process hearing regarding that student.

		5.	If a hearing officer requests an independent educational evaluation as part of a due process hearing, the cost of the evaluation must be at Board expense.
		6.	Whenever an independent evaluation is at Board expense:

			a.	the criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the evaluator(s), must be the same as the criteria that the County uses when it initiates an evaluation to the extent those criteria are consistent with the parent’s right to an independent educational evaluation;
			b.	except for criteria in above paragraph of this section, the County Board may not impose conditions or timelines related to obtaining an independent educational evaluation at Board expense.

Mediation.

		1.	Mediation is encouraged and available to parties who have a dispute relating to the identification, evaluation, or educational placement of an exceptional student, or the provision of a free appropriate public education. Mediation is available independent of or subsequent to a due process hearing request, including expedited hearings regarding a disciplinary change of placement including removal to an IAES.
		2.	The West Virginia Department of Education administers a system of mediation which ensures:

			a.	mediation is voluntary on the part of the parties;
			b.	mediation may not be used to deny or delay a parent’s right to a due process hearing or to any other rights under this policy;
			c.	mediation is conducted by a qualified and impartial mediator;
			d.	the West Virginia Department of Education bears the cost of the mediation process; including the costs described in section 4 below;
			e.	parties may be assisted in the mediation process by persons with special knowledge or training with respect to the student, the needs of exceptional students, mediation procedures or special education law and regulations;
			f.	each session in the mediation process must be scheduled in a timely manner and must be held in a location that is convenient to the parties to the dispute;
			g.	an agreement reached by the parties to the dispute in the mediation process must be set forth in a written mediation agreement;
			h.	discussions that occur during the mediation process are confidential and may not be used as evidence in any subsequent due process hearings or civil proceedings. The parties to the mediation process may be asked to sign a confidentiality pledge prior to the commencement of mediation;

Qualifications of Mediators:

A mediator may not be:

				1)	an employee of any local educational agency or any State agency receiving IDEA, Part B sub-grants;
				2)	an employee of a State education agency that is providing direct services to a student who is the subject of the mediation process;
				3)	an attorney or advocate who represents Boards or parents against Boards;
				4)	a person having a personal or professional conflict of interest.

			b.	A person who otherwise qualifies as a mediator is not an employee of a local educational agency or State agency solely because s/he is paid by the agency to serve as a mediator.
			c.	A mediator must be trained in effective mediation techniques and in the requirements of the IDEA and these regulations.
			d.	Mediators are verified by the West Virginia Department of Education as having met the requirements for qualified mediators. The West Virginia Department of Education maintains a list of the individuals who are qualified mediators.

Meeting to Encourage Mediation:

The County Board may establish procedures to require parents who elect not to use the mediation process to meet, at a time and location convenient to the parents, with a disinterested party:

				1)	who is under contract with a parent training and information center or community parent resource center in the State established under 682 or 683 of IDEA, or an appropriate alternative dispute resolution entity;
				2)	who would explain the benefits of the mediation process, and encourage the parents to use the process.

The County may not deny or delay a parent’s right to a due process hearing if the parent fails to participate in the meeting described above.

Process for Initiating Mediation:

			a.	A request for mediation may be filed independent of or subsequent to filing a due process hearing.
			b.	Parents are informed of mediation:

				1)	through the procedural safeguards notice;
				2)	upon requesting information from the County Board or the West Virginia Department of Education;
				3)	upon filing a request for a due process hearing.

			c.	A party may request mediation in a dispute relating to the identification, evaluation, or educational placement of an exceptional student, or the provision of a free appropriate public education by submitting a written request to the County Board or the West Virginia Department of Education.
			d.	The County Board receiving a mediation request shall forward the request to the West Virginia Department of Education within three (3) calendar days of receipt of the request, except when mediation is requested regarding issues in an expedited due process hearing, which shall be forwarded to the West Virginia Department of Education by the next business day.
			e.	If both parties agree to participate in mediation, the West Virginia Department of Education shall assign a mediator from the list of qualified mediators on a rotational basis.
			f.	The mediation session must be completed within twenty (20) calendar days of receipt by the West Virginia Department of Education of a request for mediation unless the timeline is extended by agreement of the parties. Any written mediation agreement shall be signed by both parties and shall be submitted to both parties and the West Virginia Department of Education.
			g.	If mediation fails to produce an agreement, or if either party requests termination of the mediation process, the mediator shall issue a statement to the parties and the West Virginia Department of Education that the process has been terminated.

Impartial Due Process Hearings.

		1.	A parent or the County Board may initiate a hearing relevant to the proposal or refusal to initiate or change the identification, evaluation or educational placement of the student or the provision of a free appropriate public education by submitting a written request for a due process hearing to the West Virginia Department of Education and/or the Superintendent of the County Board.
		2.	The procedures relevant to due process hearings do not apply to students with exceptionalities placed in private schools by the parent for issues regarding the provision of services or the student’s services plan. Due process procedures apply to child find, including evaluation and reevaluation.
		3.	The burden of proof as to the appropriateness of any proposed action, as to why more normalized placement could/could not adequately and appropriately service the individual’s educational needs, and as to the adequacy and appropriateness of any test or evaluation procedure, will be upon the school personnel recommending the matter in contention.
		4.	The County Board shall:

			a.	provide information to parents, upon request, relevant to submitting written requests for due process hearings and mediation, including the model form for filing due process hearings;
			b.	inform parents of any free and low-cost legal and other relevant services available in the area if the parent requests the information or the parent or agency initiates a hearing under this section;
			c.	forward any written requests received for due process hearings to the West Virginia Department of Education within five (5) days of the date of receipt.

The party requesting a hearing, or the attorney representing the party, shall provide notice (which must remain confidential) to the County Board, or to the West Virginia Department of Education, in a request for a hearing. The notice must include:

			a.	the name of the student;
			b.	the address of the residence of the student;
			c.	the name of the school the student is attending;
			d.	a description of the nature of the problem of the student relating to the proposed or refused initiation or change, including facts relating to the problem;
			e.	a proposed resolution of the problem to the extent known and available to the parents at the time.

		6.	The party’s right to a due process hearing may not be denied or delayed for failure to provide the notice required in paragraph (5) of this section.
		7.	Not later than forty-five (45) calendar days after the Department receives a written request for a due process hearing, the hearing officer will issue a final decision, mailing a copy of the decision to each of the parties. A hearing officer may grant specific extensions of time beyond the timelines at the request of either party.
		8.	Each hearing involving oral arguments must be conducted at a time and place which is reasonably convenient to the parents and student involved.
		9.	The impartial hearing officer shall preside at the hearing, shall conduct the proceedings in a fair and impartial manner and shall take steps to assure that all hearings will be conducted and completed as quickly as possible.
		10.	Hearing officers shall have the power to issue subpoenas requiring testimony and/or the production of books, papers, and physical or other evidence. Any person served with a subpoena pursuant to this section may object and ask the hearing officer in writing to quash or modify the subpoena as illegally or improvidently issued. The hearing officer shall immediately issue a decision on that validity of the subpoena. Any person served with a subpoena pursuant to this section shall have the right to petition the United States District Court for the County in which the hearing is to be held for an order to quash any subpoena issued pursuant to this section. A hearing officer may petition said court for an order of enforcement of a subpoena issued by the hearing officer. Nothing in this section shall prohibit the hearing officer from refusing to issue subpoenas which are requested for purposes of harassment, abuse of process, delay or which are obviously directed to persons who have no direct evidence in the matter to be heard.
		11.	At all stages of due process procedures, interpreters for the deaf or interpreters fluent in the primary language of the home shall be provided as needed at public expense.
		12.	Any party to a hearing has the right to:

			a.	be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the needs of exceptional students;
			b.	present evidence and confront, cross-examine and compel the attendance of witnesses;
			c.	prohibit the introduction of any evidence at the hearing that has not been disclosed to that party at least five (5) business days before the hearing;
			d.	obtain a written or, at the option of parents, electronic, verbatim record of the hearing;
			e.	obtain written, or at the option of parents, electronic findings of fact and decisions.

		13	;At least five (5) business days prior to a hearing, each party shall disclose to all other parties all evaluations completed by that date and recommendations based on the offering party’s evaluations that the party intends to use at the hearing. A hearing officer may bar any party that fails to comply with this paragraph from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party.
		14.	Parents involved in hearings must be given the right to:

			a.	have the student who is the subject of the hearing present;
			b.	open the hearing to the public;
			c.	obtain the record of the hearing and the findings of fact and decisions at no cost.

		15	;The County Board shall inform parents that reasonable attorney’s fees may be awarded to parents of students with disabilities to cover attorneys’ fees when the parent of a student with a disability is the prevailing party, subject to certain constraints, and that such attorney’s fees may be agreed to by the parties or awarded by a court. IDEA, Part B funds may not be used to pay attorney’s fees.
		16.	A decision made in a hearing is final, unless a party to the hearing appeals the decision through civil action.
		17.	Any party aggrieved by the findings and decisions made in a hearing has the right to bring a civil action in any State court of competent jurisdiction within 120 days of the date of the issuance of the hearing officer’s written decision or in a District court of the United States.
			In any action brought under 1.11.q. of this policy, the court shall:

			a.	receive the records of the administrative proceedings;
			b.	hear additional evidence at the request of a party;
			c.	grant the relief that the court determines to be appropriate based on the preponderance of the evidence.

;Student Status During Proceedings:

			a.	Except as provided in procedures for placement in an interim alternative education setting for up to forty-five (45) days, during the pendency of any administrative or judicial proceedings, unless the County and the parents of the student agree otherwise, the student must remain in the student’s present educational placement.
			b.	If the issue subject to any administrative or judicial proceeding involves an application for initial admission to public school, the student, with the consent of the parents, must be placed in the public school program until the completion of all the proceedings.
			c.	If the decision of a hearing officer in a due process hearing agrees with the parents that a change of placement is appropriate, that placement must be treated as an agreement between the County and the parents for purposes of determining the student’s current placement during the pendency of subsequent appeals.

West Virginia Board of Education Policy 2419
WV Code 18-20-1, et. seq.
Individuals with Disabilities Education Act