Procedural Safeguards

IDEA §300.500 General responsibility of public agencies; definitions.

1. Responsibility of SEA and other public agencies. Each SEA shall ensure that each public agency establishes, maintains, and implements procedural safeguards that meet the requirements of §§300.500-300.529.
2. Definitions of ''consent,'' ''evaluation,'' and ''personally identifiable.'' As used in this part -
   1. Consent means that - (i) The parent has been fully informed of all information relevant to the activity for which consent is sought, in his or her native language, or other mode of communication; (ii) The parent understands and agrees in writing to the carrying out of the activity for which his or her consent is sought, and the consent describes that activity and lists the records (if any) that will be released and to whom; and (iii)(A) The parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at anytime. (B) If a parent revokes consent, that revocation is not retroactive (i.e., it does not negate an action that has occurred after the consent was given and before the consent was revoked).
   2. Evaluation means procedures used in accordance with §§300.530-300.536 to determine whether a child has a disability and the nature and extent of the special education and related services that the child needs; and
   3. Personally identifiable means that information includes- (i) The name of the child, the child's parent, or other family member; (ii) The address of the child; (iii) A personal identifier, such as the child's social security number or student number; or (iv) A list of personal characteristics or other information that would make it possible to identify the child with reasonable certainty.

IDEA §300.501 Opportunity to examine records; parent participation in meetings.

1. General. The parents of a child with a disability must be afforded, in accordance with the procedures of §§300.562-300.569, an opportunity to-
   1. Inspect and review all education records with respect to- (i) The identification, evaluation, and educational placement of the child; and (ii) The provision of FAPE to the child; and
   2. Participate in meetings with respect to - (i) The identification, evaluation, and educational placement of the child; and (ii) The provision of FAPE to the child.
2. Parent participation in meetings.
   1. Each public agency shall provide notice consistent with §300.345(a)(1) and (b)(1) to ensure that parents of children with disabilities have the opportunity to participate in meetings described in paragraph (a)(2) of this section.
   2. A meeting does not include informal or unscheduled conversations involving public agency personnel and conversations on issues such as teaching methodology, lesson plans, or coordination of service provision if those issues are not addressed in the child's IEP. A meeting also does not include preparatory activities that public agency personnel engage in to develop a proposal or response to a parent proposal that will be discussed at a later meeting.
3. Parent involvement in placement decisions.
   1. Each public agency shall ensure that the parents of each child with a disability are members of any group that makes decisions on the educational placement of their child.
   2. In implementing the requirements of paragraph (c)(1) of this section, the public agency shall use procedures consistent with the procedures described in §300.345(a) through (b)(1).
   3. If neither parent can participate in a meeting in which a decision is to be made relating to the educational placement of their child, the public agency shall use other methods to ensure their participation, including individual or conference telephone calls, or video conferencing.
   4. A placement decision may be made by a group without the involvement of the parents, if the public agency is unable to obtain the parents' participation in the decision. In this case, the public agency must have a record of its attempt to ensure their involvement, including information that is consistent with the requirements of §300.345(d).
   5. The public agency shall make reasonable efforts to ensure that the parents understand, and are able to participate in, any group discussions relating to the educational placement of their child, including arranging for an interpreter for parents with deafness, or whose native language is other than English.

IDEA §300.502 Independent educational evaluation.

1. General.
   1. The parents of a child with a disability have the right under this part to obtain an independent educational evaluation of the child, subject to paragraphs (b) through (e)of this section.
   2. Each public agency shall provide to parents, upon request for an independent educational evaluation, information about where an independent educational evaluation may be obtained, and the agency criteria applicable for independent educational evaluations as set forth in paragraph (e) of this section.
   3. For the purposes of this part- (i) Independent educational evaluation means an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question; and (ii) Public expense means that the public agency either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to the parent, consistent with §300.301.
2. Parent right to evaluation at public expense.
   1. A parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency.
   2. If a parent requests an independent educational evaluation at public expense, the public agency must, without unnecessary delay, either- (i) Initiate a hearing under §300.507 to show that its evaluation is appropriate; or (ii) Ensure that an independent educational evaluation is provided at public expense, unless the agency demonstrates in a hearing under §300.507 that the evaluation obtained by the parent did not meet agency criteria.
   3. If the public agency initiates a hearing and the final decision is that the agency's evaluation is appropriate, the parent still has the right to an independent educational evaluation, but not at public expense.
   4. If a parent requests an independent educational evaluation, the public agency may ask for the parent's reason why he or she objects to the public evaluation. However, the explanation by the parent may not be required and the public agency may not unreasonably delay either providing the independent educational evaluation at public expense or initiating a due process hearing to defend the public evaluation.
3. Parent-initiated evaluations. If the parent obtains an independent educational evaluation at private expense, the results of the evaluation-
   1. Must be considered by the public agency, if it meets agency criteria, in any decision made with respect to the provision of FAPE to the child; and
   2. May be presented as evidence at a hearing under this subpart regarding that child.
   3. Requests for evaluations by hearing officers. If a hearing officer requests an independent educational evaluation as part of a hearing, the cost of the evaluation must be at public expense.
4. Agency criteria.
   1. If an independent educational evaluation is at public expense, the criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, must be the same as the criteria that the public agency uses when it initiates an evaluation, to the extent those criteria are consistent with the parent's right to an independent educational evaluation.
   2. Except for the criteria described in paragraph (e)(1) of this section, a public agency may not impose conditions or timelines related to obtaining an independent educational evaluation at public expense.

IDEA §300.503 Prior notice by the public agency; content of notice.

1. Notice.
   1. Written notice that meets the requirements of paragraph (b) of this section must be given to the parents of a child with a disability a reasonable time before the public agency- (i) Proposes to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child; or (ii) Refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child.
   2. If the notice described under paragraph (a)(1) of this section relates to an action proposed by the public agency that also requires parental consent under §300.505, the agency may give notice at the same time it requests parent consent.
2. Content of notice. The notice required under paragraph (a) of this section must include-
   1. A description of the action proposed or refused by the agency;
   2. An explanation of why the agency proposes or refuses to take the action;
   3. A description of any other options that the agency considered and the reasons why those options were rejected;
   4. A description of each evaluation procedure, test, record, or report the agency used as a basis for the proposed or refused action;
   5. A description of any other factors that are relevant to the agency's proposal or refusal;
   6. A statement that the parents of a child with a disability have protection under the procedural safeguards of this part 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; and
   7. Sources for parents to contact to obtain assistance in understanding the provisions of this part.
3. Notice in understandable language.
   1. The notice required under paragraph (a) of this section must be- (i) Written in language understandable to the general public; and (ii) Provided in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so.
   2. If the native language or other mode of communication of the parent is not a written language, the public agency shall take steps to ensure- (i) That the notice is translated orally or by other means to the parent in his or her native language or other mode of communication; (ii) That the parent understands the content of the notice; and (iii) That there is written evidence that the requirements in paragraphs (c)(2) (i) and (ii) of this section have been met.

IDEA §300.504 Procedural safeguards notice.

1. General. A copy of the procedural safeguards available to the parents of a child with a disability must be given to the parents, at a minimum-
   1. Upon initial referral for evaluation;
   2. Upon each notification of an IEP meeting;
   3. Upon reevaluation of the child; and (4) Upon receipt of a request for due process under §300.507.
2. Contents. The procedural safeguards notice must include a full explanation of all of the procedural safeguards available under §§300.403, 300.500-300.529, and 300.560-300.577, and the State complaint procedures available under §§300.660-300.662 relating to-
   1. Independent educational evaluation;
   2. Prior written notice;
   3. Parental consent;
   4. Access to educational records;
   5. Opportunity to present complaints to initiate due process hearings;
   6. The child's placement during pendency of due process proceedings;
   7. Procedures for students who are subject to placement in an interim alternative educational setting;
   8. Requirements for unilateral placement by parents of children in private schools at public expense;
   9. Mediation;
   10. Due process hearings, including requirements for disclosure of evaluation results and recommendations;
   11. State-level appeals (if applicable in that State);
   12. Civil actions;
   13. Attorneys' fees; and
   14. The State complaint procedures under §§300.660-300.662, including a description of how to file a complaint and the timelines under those procedures.
3. Notice in understandable language. The notice required under paragraph (a) of this section must meet the requirements of §300.503(c).

IDEA §300.505 Parental consent.

1. General.
   1. Subject to paragraphs (a)(3), (b) and (c) of this section, informed parent consent must be obtained before- (i) Conducting an initial evaluation or reevaluation; and (ii) Initial provision of special education and related services to a child with a disability.
   2. Consent for initial evaluation may not be construed as consent for initial placement described in paragraph (a)(1)(ii) of this section.
   3. Parental consent is not required before- (i) Reviewing existing data as part of an evaluation or a reevaluation; or (ii) Administering a test or other evaluation that is administered to all children unless, before administration of that test or evaluation, consent is required of parents of all children.
2. Refusal. If the parents of a child with a disability refuse consent for initial evaluation or a reevaluation, the agency may continue to pursue those evaluations by using the due process procedures under §§300.507-300.509, or the mediation procedures under §300.506 if appropriate, except to the extent inconsistent with State law relating to parental consent.
3. Failure to respond to request for reevaluation.
   1. Informed parental consent need not be obtained for reevaluation if the public agency can demonstrate that it has taken reasonable measures to obtain that consent, and the child's parent has failed to respond.
   2. To meet the reasonable measures requirement in paragraph (c)(1) of this section, the public agency must use procedures consistent with those in §300.345(d).
4. Additional State consent requirements. In addition to the parental consent requirements described in paragraph (a) of this section, a State may require parental consent for other services and activities under this part if it ensures that each public agency in the State establishes and implements effective procedures to ensure that a parent's refusal to consent does not result in a failure to provide the child with FAPE.
5. Limitation. A public agency may not use a parent's refusal to consent to one service or activity under paragraphs (a) and (d) of this section to deny the parent or child any other service, benefit, or activity of the public agency, except as required by this part.

IDEA §300.506 Mediation.

1. General. Each public agency shall ensure that procedures are established and implemented to allow parties to disputes involving any matter described in §300.503(a)(1) to resolve the disputes through a mediation process that, at a minimum, must be available whenever a hearing is requested under §§300.507 or 300.520-300.528.
2. Requirements. The procedures must meet the following requirements:
   1. The procedures must ensure that the mediation process- (i) Is voluntary on the part of the parties; (ii) Is not used to deny or delay a parent's right to a due process hearing under §300.507, or to deny any other rights afforded under Part B of the Act; and (iii) Is conducted by a qualified and impartial mediator who is trained in effective mediation techniques.
   2. (i)The State shall maintain a list of individuals who are qualified mediators and knowledgeable in laws and regulations relating to the provision of special education and related services. (ii)If a mediator is not selected on a random (e.g., a rotation) basis from the list described in paragraph (b)(2)(i) of this section, both parties must be involved in selecting the mediator and agree with the selection of the individual who will mediate.
   3. The State shall bear the cost of the mediation process, including the costs of meetings described in paragraph (d) of this section.
   4. 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.
   5. An agreement reached by the parties to the dispute in the mediation process must be set forth in a written mediation agreement.
   6. Discussions that occur during the mediation process must be confidential and may not be used as evidence in any subsequent due process hearings or civil proceedings, and the parties to the mediation process may be required to sign a confidentiality pledge prior to the commencement of the process.
3. Impartiality of mediator.
   1. An individual who serves as a mediator under this part- (i) May not be an employee of- (A) Any LEA or any State agency described under §300.194; or (B) An SEA that is providing direct services to a child who is the subject of the mediation process; and (ii) Must not have a personal or professional conflict of interest.
   2. A person who otherwise qualifies as a mediator is not an employee of an LEA or State agency described under § 300.194 solely because he or she is paid by the agency to serve as a mediator.
4. Meeting to encourage mediation.
   1. A public agency 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- (i) Who is under contract with a parent training and information center or community parent resource center in the State established under section 682 or 683 of the Act, or an appropriate alternative dispute resolution entity; and (ii) Who would explain the benefits of the mediation process, and encourage the parents to use the process.
   2. A public agency may not deny or delay a parent's right to a due process hearing under § 300.507 if the parent fails to participate in the meeting described in paragraph (d)(1) of this section.

IDEA §300.507 Impartial due process hearing; parent notice.

1. General.
   1. A parent or a public agency may initiate a hearing on any of the matters described in §300.503(a)(1) and (2) (relating to the identification, evaluation or educational placement of a child with a disability, or the provision of FAPE to the child).
   2. When a hearing is initiated under paragraph (a)(1) of this section, the public agency shall inform the parents of the availability of mediation described in §300.506.
   3. The public agency shall inform the parent of any free or low-cost legal and other relevant services available in the area if- (i) The parent requests the information; or (ii) The parent or the agency initiates a hearing under this section.
2. Agency responsible for conducting hearing. The hearing described in paragraph (a) of this section must be conducted by the SEA or the public agency directly responsible for the education of the child, as determined under State statute, State regulation, or a written policy of the SEA.
3. Parent notice to the public agency.
   1. General. The public agency must have procedures that require the parent of a child with a disability or the attorney representing the child, to provide notice (which must remain confidential) to the public agency in a request for a hearing under paragraph (a)(1) of this section.
   2. Content of parent notice. The notice required in paragraph (c)(1) of this section must include- (i) The name of the child; (ii) The address of the residence of the child; (iii) The name of the school the child is attending; (iv) A description of the nature of the problem of the child relating to the proposed or refused initiation or change, including facts relating to the problem; and (v) A proposed resolution of the problem to the extent known and available to the parents at the time.
   3. Model form to assist parents. Each SEA shall develop a model form to assist parents in filing a request for due process that includes the information required in paragraphs (c)(1) and (2) of this section.
   4. Right to due process hearing. A public agency may not deny or delay a parent's right to a due process hearing for failure to provide the notice required in paragraphs (c)(1) and (2) of this section.

IDEA §300.508 Impartial hearing officer.

1. A hearing may not be conducted-
   1. By a person who is an employee of the State agency or the LEA that is involved in the education or care of the child; or
   2. By any person having a personal or professional interest that would conflict with his or her objectivity in the hearing.
2. A person who otherwise qualifies to conduct a hearing under paragraph (a) of this section is not an employee of the agency solely because he or she is paid by the agency to serve as a hearing officer.
3. Each public agency shall keep a list of the persons who serve as hearing officers. The list must include a statement of the qualifications of each of those persons.

IDEA § 300.509 Hearing rights.

1. General. Any party to a hearing conducted pursuant to §§300.507 or 300.520-300.528, or an appeal conducted pursuant to §300.510, has the right to-
   1. Be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities;
   2. Present evidence and confront, cross-examine, and compel the attendance of witnesses;
   3. Prohibit the introduction of any evidence at the hearing that has not been disclosed to that party at least 5 business days before the hearing;
   4. Obtain a written, or, at the option of the parents, electronic, verbatim record of the hearing; and
   5. Obtain written, or, at the option of the parents, electronic findings of fact and decisions.
2. Additional disclosure of information.
   1. At least 5 business days prior to a hearing conducted pursuant to §300.507(a), 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.
   2. A hearing officer may bar any party that fails to comply with paragraph (b)(1) of this section from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party.
3. Parental rights at hearings.
   1. Parents involved in hearings must be given the right to- (i) Have the child who is the subject of the hearing present; and (ii) Open the hearing to the public.
   2. The record of the hearing and the findings of fact and decisions described in paragraphs (a)(4) and (a)(5) of this section must be provided at no cost to parents.
4. Findings and decision to advisory panel and general public. The public agency, after deleting any personally identifiable information, shall-
   1. Transmit the findings and decisions referred to in paragraph (a)(5) of this section to the State advisory panel established under §300.650; and
   2. Make those findings and decisions available to the public.