As a parent, you have a right to participate in the development of your childŐs Individualized Educational Program (IEP). Therefore, all meetings must be scheduled at a mutually agreed upon (by you and the school system) time and place. The school system must notify you at least ten (10) school days before an IEP meeting to ensure that you will have an opportunity to attend. When notifying you of an IEP meeting related to an incident of misconduct, the notification time may be reduced to as few as twenty-four (24) hours.
You must be given written notice at least ten (10)
school days before the school system:
á
Proposes
to initiate or change the identification, evaluation, or educational placement
of your child or the provision of free appropriate public education to your
child;
á
Refuses
to initiate or change the identification, evaluation, or educational placement
of your child or the provision of a free appropriate public education to your child;
or
á
Refuses
to amend your childŐs records or proposes to destroy unneeded records in
accordance with the confidentiality requirements of the law.
The ten-day notification time may be reduced if
you and the school system agree or in the case of an incident of misconduct.
The content of the notice must include:
á
A
description of the action proposed or refused;
á
An
explanation of why the school system proposes or refuses to take the action;
á
A
description of any options considered and the reasons why those options were
rejected;
á
A
description of each evaluation procedure, test, record, or report used as a
basis for the action;
á
A
description of any other factors relevant to the local school systemŐs proposed
or refused action;
á
A
statement that you have protections under the procedural safeguards; and
á
Sources
for you to contact to obtain assistance in understanding the notice.
The school system must get your informed consent
before:
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Conducting
an initial evaluation or reevaluation of your child;
á
Initially
placing your child in a special education program;
á
Disclosing
personally identifiable information to unauthorized persons, except for
directory information where reasonable notice of disclosure is provided to you
and you have not objected.
Note: If you refuse to consent to evaluation or reevaluation the
school system may continue to pursue those evaluations by using due process
procedures.
Your informed consent is not needed for:
á
Reviewing
existing data as part of an evaluation or a reevaluation;
á
Administering
a test or other assessment that is administered to all children unless consent
is required of parents of all children; or
á
Reevaluation,
if the school system documents that it has taken reasonable measures to obtain your
consent and you have failed to respond.
IDEA gives you the right to inspect and review any
records directly relating to your child which are maintained by the school
system or by a party acting for the school system. The school system must comply with your request to inspect
and review all education records relating to the identification, evaluation,
and placement of your child and the provision of a Free Appropriate Public
Education (FAPE) to your child.
This request must be completed, without
unnecessary delay and before any IEP meeting or hearing and in no case, more
than forty-five (45) days after the request has been received.
Your
right to inspect and review your childŐs records includes:
á
The right to a response from
the school system if you make a reasonable request for explanations and
interpretations of the records;
á
The right to request the
school system to provide copies of the records, if failure to provide copies
would effectively prevent you from exercising your right to inspect and review
the records; and
á
The right to have your
representative (authorized in writing) inspect and review the records.
The
school system may presume that you have the authority to inspect and review
records relating to your child unless it has been advised that you do not have
the authority under applicable Tennessee law governing such matters as
guardianship, separation and divorce and has been provided a copy of the
applicable document.
If
any of your childŐs education records include information regarding other
children, you shall have the right to inspect and review only the information
relating to your own child or to be informed of that specific information.
The
school system may charge a fee for copies of records which are made for you if
the fee does not effectively prevent you from exercising your right to inspect
and review those records.
If
you believe that information in your childŐs education records is inaccurate or
misleading or violates the privacy or other rights of your child, you may
request the school system to amend the information. If you request the school system to amend your childŐs
records, the school system must decide whether to amend the record and respond
to you within ten (10) days of receipt of your request. If the school system refuses to amend
your childŐs record, it shall inform you of the refusal and advise you of your
right to a hearing conducted by an impartial hearing officer to challenge the
information in your childŐs records.
If, as a result of the hearing, it is decided that the information is
inaccurate, misleading or otherwise in violation of the privacy or other rights
of your child, the school system shall amend the information accordingly and
provide written notice to you. If,
as a result of the hearing, it is decided that the information is not
inaccurate, misleading or otherwise in violation of the privacy or other rights
of your child, the school system shall inform you of your right to place in
your childŐs records a statement commenting on the information or setting forth
any reasons for disagreeing with the decision of the school system. Any explanation placed in your childŐs
records must be maintained as long as the records or contested portions are
maintained by the school system.
If your childŐs records or the contested portions are disclosed by the
school system to any party, the explanation must also be disclosed to the
party.
Except
for the disclosure of directory information (e.g., name, address, dates of
attendance, etc.) where reasonable notice of disclosure is provided to you and
you have not objected, the school system must get written consent from you
before disclosing personally identifiable information from your childŐs records
to unauthorized persons.
INDEPENDENT EDUCATIONAL
EVALUATION (IEE)
If you disagree with the school systemŐs
evaluation of your child, you have a right to seek an IEE. Each school system must have a
procedure for providing an IEE at the request of parents.
An IEE must be provided to you at public expense
and without unnecessary delay unless the school system:
á
Initiates
a hearing to show its evaluation is appropriate; or
á
Demonstrates
in a due process hearing that the evaluation presented by you did not meet the
school systemŐs evaluation criteria.
If this is submitted, you still have the right to an IEE, but not at
public expense.
When you request an IEE from the school system,
the school system must provide you with information about where an IEE may be
obtained and the evaluation criteria to be used.
Whenever you obtain an IEE, the criteria under
which the assessment is obtained, including the location of the assessment and
the qualifications of the examiner, must be the same as the criteria that the
school system uses when it initiates an assessment. If the IEE meets school
system criteria, (regardless of whether it is paid for by you or by public
funds) the results must be considered by the school system in any decision made
with respect to the provisions of FAPE to your child and may be presented as
evidence at a due process hearing regarding your child.
Note: If a hearing officer requests an IEE as a part of a due
process hearing, it shall be at public expense.
The
Tennessee Department of Education encourages you to first attempt to resolve
complaints regarding your childŐs educational program by contacting local
school system officials. If you
have contacted the principal of your childŐs school, your school systemŐs
Director of Special Education or the Director of Schools for your school system
and your complaint is unresolved, you may file an Administrative Complaint with
the Tennessee Department of Education/Division of Special Education (Division).
To be processed and investigated by the
Division, your complaint must allege a violation of a requirement of a state or
federal law or regulation governing educational services to a child eligible
for special education and provide specific information to support the
allegation.
If you file an Administrative Complaint with the Division, a staff
member will be assigned to conduct an impartial review of the facts and to
recommend an objective resolution of the complaint based on the DivisionŐs
procedures.
An
Administrative Complaint:
á
Must be in writing;
á
Should be addressed to the
Division;
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Must be signed by you
(anonymous complaints will not be processed);
á
Should be clear and concise
in identifying the concern or the alleged violations; and
á
Need not identify the
specific law or regulation involved.
The Division must investigate
and resolve all Administrative Complaints within sixty (60) calendar days from
receipt of the written complaint. The sixty (60) day timeline may be extended
by the Division for exceptional circumstances.
You
and the school system have a right to participate in special education
mediation conducted by the Tennessee Department of Education/Division of
Special Education (Division) to resolve disputes involving identification,
evaluation, or educational placement of your child or the provision of FAPE to
your child. Mediation is a method
of dispute resolution where both parties sit down with an impartial neutral
party who helps them reach an agreement that is set forth in writing.
The
mediation process:
á
Is voluntary on the part of
you and the school system;
á
May not be used to deny or
delay your right to a due process hearing, or to deny any of your other rights
under IDEA; and
á
Is conducted by a qualified
and impartial mediator who is trained in effective mediation techniques.
The
Division 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.
If
you and the school system agree to mediate a dispute, a ŇRequest for MediationÓ
form must be completed and signed by you and the school system and forwarded to
the Division.
You
and the school system have the right to an impartial due process hearing in
order to settle disputes regarding the provision of a free appropriate public
education to your child if he/she is eligible for special education or is
suspected of being eligible for special education.
You
or the school system may initiate a hearing on matters relating to the
identification, evaluation or educational placement of your child with a
disability, or the provision of FAPE for your child.
Reasons
for requesting a Due Process Hearing may also include when your child is or is
about to be:
á
Denied identification, evaluation,
entry or continuance in a program of special education appropriate to his/her
condition and needs;
á
Provided special education or
related services which are inappropriate to his/her condition and needs;
á
Denied needed special
education or related services;
á
Provided with special
education or other education which is insufficient in quantity to satisfy the
requirements of the law;
á
Assigned to a program of
special education when he/she is not eligible for special education;
á
Denied his/her rights by
having data collected, maintained or used which you believe to be inaccurate,
misleading or otherwise in violation of the privacy rights of the child;
á
Denied an evaluation
requested by you;
á
Improperly identified; or
á
Placed in a setting, which is
not the least restrictive environment.
When
you request a hearing, the school system must inform you of the availability of
mediation and of any free or low-cost legal services and other relevant
services available in your area.
To
request a Due Process Hearing, you must give the school system written notice
of your request (there is a state Due Process Hearing request form on the
internet at http://www.state.tn.us/education/msped.htm). The
notice required must be in writing and include:
á
The name of your child;
á
The address of the residence
of your child;
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The name of the school your
child is attending;
á
A description of the nature
of the problem of your child relating to the proposed or refused initiation or
change, including facts relating to the problem; and
á
A proposed resolution of the
problem to the extent known and available to you at the time.
During
a Due Process Hearing you have the right to:
á
Be accompanied and advised by
counsel and by individuals with special knowledge or training with respect to
the problems of children with disabilities;
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Present evidence and
confront, cross-examine, and compel the attendance of witnesses;
The
Division of Special Education shall ensure that not later than forty-five (45)
days after the receipt of a request for a hearing:
á
A final decision is reached
in the hearing; and
á
A copy of the decision is
mailed to the school system, the parents, and the Division.
Note: A
hearing officer may grant specific extensions of time beyond forty-five (45)
days at the request of either party.
At
least five (5) business days prior to a Due Process Hearing you and the school
system must disclose all evidence that you and/or the school system plan to
present at the hearing, including all evaluations completed by that date and
recommendations based on the evaluations.
Your Right to
Challenge a Due Process Hearing Decision by Civil Action
If
you or the school system disagree with the findings and decision of an
impartial Due Process Hearing Officer, you have the right to bring a civil
action with respect to the complaint presented. The action may be brought in
Chancery Court of Davidson County or in a federal district court of the United
States.
AttorneysŐ Fees
If
you are the prevailing party in a Due Process Hearing, a court may subsequently
award you attorneyŐs fees.
However, the court may limit or refuse your request for an award of
attorneyŐs fees under certain circumstances.
Your ChildŐs Status During Proceedings
Except
in a case where your child is placed in an interim alternative educational
setting for forty-five (45) days for weapons, drugs, or if your child has been
determined dangerous to himself/herself and/or others by a hearing officer,
your child must remain in his or her current educational placement during the
pendency of any Due Process Hearing, unless the State or school system and you
agree otherwise. The right to
remain in a current educational placement is called Ňstay put.Ó If the Due Process Hearing involves an
application for initial admission to public school, your child, with your
consent, must be placed in the public school until the completion of all the
proceedings.
Expedited Due Process
Hearings
Parents
may request an Expedited Due Process Hearing when they disagree with a determination that their childŐs
behavior was not a manifestation of his/her disability or with any decision
regarding disciplinary placement.
The
school system may request an Expedited Due Process hearing if they consider a
child dangerous in his/her current educational placement.
Expedited
Due Process Hearings must be conducted by Due Process Hearing officers and
written decisions mailed to parties within thirty (30) days of the local school
systemŐs receipt of the parentŐs request for the hearing. The decisions on
Expedited Due Process Hearings may be challenged under the same rules as other
Due Process Hearings.
If
your child is suspended or expelled from school, the school system must only
continue to provide services to your child if the disciplinary removal
constitutes a Ňchange of placement.Ó
For
purposes of removal of a child with a disability from the childŐs current
educational placement, a change of placement occurs if:
1.
The removal is for more than ten (10) consecutive school days; or
2.
The child is subjected to a series of removals that constitutes a pattern
because they cumulate to more than ten (10) school days in a school year, and
because of factors such as the length of each removal, the total amount of time
the child is removed, and the proximity of the removals to one another.
A
local school system need not provide services during periods of removal to a
child eligible for special education who has been removed from his/her current
educational placement for ten (10) school days or less in that school year if
services are not provided to a child without disabilities who has been
similarly removed.
If your child has been
removed from his/her current placement for more than ten (10) school days in a
school year, the local school system, for the remainder of the removals, must
provide services to the extent necessary to enable your child to appropriately
progress in the general curriculum and advance toward achieving the goals set
out in his/her IEP.
Your childŐs IEP team shall
determine the extent to which services are necessary to enable him/her to
appropriately progress in the general curriculum and advance toward achieving
the goals set out in his/her IEP if the child is removed because of behavior
that has been determined not to be a manifestation of his/her disability.
Transfer of Special
Education Records
If
the local school system initiates disciplinary procedures applicable to all
children, the local school system shall ensure that the special education and
disciplinary records of your child with a disability are transmitted for
consideration by the person or persons making the final determination regarding
the disciplinary action.
The
School System may place your child with a disability in an appropriate interim
alternative educational setting for the same amount of time that a child
without disabilities would be subject to discipline, but for not more than
forty-five (45) days, if:
á
Your child possesses a
dangerous weapon at school or at a school function under the jurisdiction of
the State or a local school system; or
á
Your child knowingly
possesses or uses illegal drugs or sells or solicits the sale of a controlled
substance while at school or at a school function under the jurisdiction of the
State or local school system.
A
Hearing Officer may order a change in the placement of your child with a
disability to an appropriate interim alternative educational setting for not
more than forty-five (45) days if the Hearing Officer, in an expedited due
process hearing:
á
Determines that the school
system has demonstrated by substantial evidence that maintaining the current
placement of your child is substantially likely to result in injury to your
child or to others;
á
Considers the appropriateness
of your childŐs current placement;
á
Considers whether the school
system has made reasonable efforts to minimize the risk of harm in your childŐs
current placement, including the use of supplementary aids and services; and
á
Determines that the interim
alternative educational setting that is proposed by school personnel who have
consulted with your childŐs special education teacher is appropriate for your
child.
Functional
Behavioral Assessments and
Behavioral Intervention
Plans
Within ten (10) business days after either first removing your child for
more than ten (10) school days in a school year or commencing a removal that
constitutes a change of placement, the school system must conduct a functional
behavioral assessment and implement a behavioral intervention plan. If your child already has a behavioral
intervention plan, the IEP team shall meet to review the plan and its
implementation, and modify the plan and its implementation as necessary to
address your childŐs behavior.
Children identified as intellectually gifted are excluded from the
provisions of 0520-1-9-.15
(Special Education Discipline Procedures) of the State Board of
Education Rules and Regulations.
However, children with a dual diagnosis that includes intellectually
gifted shall be considered as children with a disability and may not be
excluded from the requirements of 0520-1-9-.15 (Special Education Discipline
Procedures) of the State Board of Education Rules and Regulations.
Tennessee law recognizes that a child has reached
the age of majority or adulthood upon his/her eighteenth (18th)
birthday. When your child reaches
the age of eighteen (18) unless he/she has been determined to be incompetent
under Tennessee law, all rights accorded to you under IDEA and the Family
Educational Rights and Privacy Act (FERPA) transfer to your child.
Beginning at least one year before your child
reaches the age of eighteen (18), your childŐs IEP must include a statement
that you and your child have been informed that your childŐs rights under IDEA,
if any, will transfer to your child when he/she reaches the age of eighteen
(18).
If the public school system has made FAPE
available to your child and you chose to place your child in a private school
or facility, the public school system does not have to pay for the cost of
education, including special education and related services for your child.
If you decide that the public school is not
providing an appropriate education for your child and you wish to remove your
child from the public school and enroll him/her in a private school at public
expense, you must complete these steps:
á
Notice
to the Public School System
You must notify the public school system before
you remove your child from public school.
You must notify the public school system either at the most recent IEP
meeting before removing your child, or in writing, at least ten (10) business
days (including any holidays that occur on a business day) prior to the
removal.
You must also tell the public school system why
you disagree with the program that the public school has proposed or provided
for your child and must state your intention to enroll your child in private
school at public expense. If the
public school system has informed you prior to your removing your child from
public school of their intent to evaluate your child, you must make your child
available for the evaluation.
á
Proof
of Denial of FAPE to Hearing Officer
You must prove to a Hearing Officer in a Due
Process Hearing that the local school system did not make FAPE available to
your child in a timely manner prior to the removal of your child and that the
private placement is appropriate.
If you give proper notice to the public school system and prove your case at a Due Process Hearing, the Hearing Officer may require the local school system to reimburse you for the cost of the private school placement.