To obtain informed parental consent for
an initial evaluation or reevaluation, the district must provide prior written notice which includes the
following: [See R 340.1721(1)(a)-(h) and 34 CFR 300.503(b)]PROCEDURAL SAFEGUARDS FOR PARENTS
INTRODUCTION
This document provides parents of students with disabilities, from birth to age 26, an overview of their educational rights with respect to special education. This document incorporates procedural safeguards to parents and students with disabilities afforded under the Individuals with Disabilities Education Act (IDEA), the IDEA implementing regulations, Michigan Mandatory Special Education Act, and the Michigan Revised Administrative Rules for Special Education.
In this document R ____ will refer to a rule in the Michigan Revised Administrative Rules for Special Education, and 34 CFR ____ will refer to the federal IDEA regulations.
PROCEDURAL SAFEGUARDS NOTICE
A copy of the procedural safeguards available to the parents of a child with a disability under IDEA shall be provided to the parents on:
(1) An initial referral for evaluation.
(2) Each notification of an individualized education program (IEP) Team meeting.
(3) Reevaluation of the student.
(4) Receipt of a request for a due process hearing.
(5) The day on which the decision to take disciplinary action involving a change in placement is made.
PARENTAL CONSENT - “Consent” means that:
(1) 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;
(2) 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) which will be released and to whom; and
(3) The parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at any time. If a parent revokes a consent, the 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retroactive (i.e., it does not negate an action that has occurred after the consent was given and before the consent was revoked.)
The district must obtain informed parental consent before conducting an initial evaluation and/or
initially providing a child with disabilities special education and related services. The district must
also obtain informed parental consent prior to conducting any reevaluation except if the parent fails
to respond to reasonable measures to obtain such consent.
To obtain informed parental consent for
an initial evaluation or reevaluation, the district must provide prior written notice which includes the
following: [See R 340.1721(1)(a)-(h) and 34 CFR 300.503(b)]
(1) a description of the proposed or refused evaluation/reevaluation;
(2) a description of the reasons why the district proposes or refuses such evaluation or reevaluation;
(3) a description of the other options considered and the reasons why such options have been rejected;
(4) a description of each evaluation procedure, test or record to be used in the proposed evaluation or those considered in refusing to evaluate/reevaluate;
(5) a description of any factors relevant to the district’s proposal or refusal to evaluate/reevaluate;
(6) a statement that the parents of a child have protections under procedural safeguards, a copy of which is enclosed with this notice; and
(7) a list of organizations, including addresses and phone numbers, available to assist a parent in understanding the special education process.
For an initial evaluation, the prior written notice shall also include:
(1) a description of the types of special education programs and services available within the intermediate school district (ISD);
(2) a statement of the parent’s right to inspect and review all education records with respect to the identification, evaluation, program, educational placement and provision of a free appropriate public education (FAPE);
(3) a statement that a parent may be accompanied to an IEP Team meeting by any person(s) the parent desires;
(4) a statement that the parent has a right to obtain an independent educational evaluation (IEE) if the parent disagrees with the evaluation conducted by the district; and
(5) a statement of the opportunity for the parent to provide the multidisciplinary evaluation team (MET) with information about the child’s suspected disability and the opportunity to present information at the IEP Team meeting.
The district may use the hearing procedures in R 340.1724 and R 340.1724b to determine if the person may be evaluated, reevaluated or initially provided special education and related services despite parental refusal to consent.
If the hearing officer upholds the district, the district may evaluate, reevaluate or initially provide special education and related services to the child without the parent’s consent, subject to the parent’s rights under R 340.1725 (administrative appeal) and R 340.340.1725a (civil action) and to have the child remain in his or her present educational placement during the pendency of any administrative or judicial proceeding.
“PRIOR NOTICE” TO PARENTS - The district must provide written notice to the parents of a child with disabilities each time it proposes or refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of a free appropriate public education to the child. The notice must include:
(1) a description of the action proposed or refused by the district;
(2) an explanation of why the district proposes or refuses to take the action;
(3) a description of any options the district considered and the reasons why those options were rejected;
(4) a description of each evaluation procedure, test, record, or report the district uses as a basis for the proposal or refusal;
(5) a description of any others factors which are relevant to the district’s proposal or refusal;
(6) a statement that the parent of a child with a disability has protections under the procedural safeguards of state and federal statutes and regulations, a copy of which can be obtained by contacting _____________________; and
(7) sources for parents to obtain assistance in understanding the provisions of these safeguards and related special education laws.
The notice must be written in language understandable to the general public, and 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. If the native language or other mode of communication of the parent is not a written language, the district shall have the notice translated orally or by other means to the parent in his or her native language or other mode of communication so that the parent understands the content of the notice and there is written evidence that these requirements have been met.
PARENT INVOLVEMENT - Parents must be given an opportunity to participate in meetings with respect to the identification, evaluation, educational placement, and the provision of a FAPE. A meeting does not include informal or unscheduled conversations involving district staff, conversations on issues such as teaching methodology, lesson plans or coordination of services if those issues are not addressed in the IEP, or preparatory activities of district staff to develop a proposal or respond to a parent proposal that will be discussed at a later meeting.
EVALUATION PROCEDURES - “Evaluation” means procedures used in accordance with Section 1414 of the IDEA to assist the Individualized Education Program Team (IEPT or IEP Team) in its role of determining whether a child has a disability and the nature and extent of the special education and related services that the child needs. The term also means procedures used selectively with an individual child and does not include ongoing classroom evaluation, teacher observation, basic tests administered to or procedures used with all children in a school, grade, or class. The parent has the right to:
(1) have tests and other evaluation materials provided and administered in the child’s native language or other mode of communication, unless it is clearly not feasible to do so;
(2) be assured that testing does not discriminate on the basis of race or cultural background;
(3) have evaluation instruments validated for the specific purpose(s) for which they were intended and administered by trained personnel in conformance with the instructions provided by their producer; if an assessment is not conducted under standard conditions, a description of the extent the assessment varied from the standard administration must be included in the evaluation report;
(4) have evaluations that assess specific areas of educational need and not produce merely a single intelligent quotient (IQ) score. No single procedure is to be used by the IEP Team as the sole criterion for determining whether the child is a child with a disability and an appropriate special education program for the child;
(5) have a variety of assessment tools and strategies used to assess all areas of suspected disability and gather relevant functional and developmental information that may assist the IEP Team in determining eligibility, IEP content, and enabling the child to be involved in, and progress in, the general curriculum or appropriate activities. The evaluation should cover all areas relating to the suspected disability, including, where appropriate health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor ability;
(6) have technically sound instruments used that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors;
(7) have assessment tools and strategies used that provide relevant information that directly assists the IEP Team in determining the educational needs of the child;
(8) have evaluation instruments and procedures adapted for children with impaired sensory, physical or speaking skills; and consider the age, socioeconomic and cultural background;
(9) as part of an initial evaluation, if appropriate, and as part of a reeevaluation have the child’s IEP team review existing evaluation data on the child. Based upon that review, including parent input, the IEP team must identify what additional data, if any, is needed to determine:
• whether the child is (or continues to be) disabled;
• the child’s present levels of performance and educational needs;
• whether the child needs (or continues to need) special education programs and/or related services; and
• whether any changes in such programs and services are needed to enable the child to meet the goals in the IEP and participate, as appropriate, in the general curriculum.
The district shall use those tests and materials needed to produce the data identified by the IEP team above.
(10) have the evaluation made by a multidisciplinary evaluation team (MET) of at least two persons, which includes a teacher or person knowledgeable in the area of the suspected disability. The evaluation shall be sufficiently comprehensive to identify all of the child’s special education and related services needs, whether or not commonly linked to the disability category in which the child has been classified;
(11) provide the MET with information about the child’s suspected disability, along with any evaluation the parent may have obtained for the child;
(12) have an initial evaluation conducted by a MET within 30 school days after the school has received the parent’s written consent to evaluate;
(13) have a reevaluation every three years to determine if the child still has a disability and is eligible for special education (unless notified a reevaluation is not needed, the reasons why and the right to request a reevaluation despite the notice);
(14) be provided a copy of the evaluation report and the documentation of determination of eligibility;
(15) request reevaluation more frequently than three years if it appears appropriate;
(16) be notified of each evaluation procedure, test, record, or report the IEP Team used in determining eligibility and the need for special education programs or services; and
(17) have a vocational evaluation if the child is to receive vocational education which must include special information regarding the student’s disabling condition and an assessment of the student’s: (a) personal adjustment skills; (b) aptitudes; (c) interests; (d) academic achievement.
INDEPENDENT EDUCATION EVALUATION - “Independent Educational Evaluation” (IEE) means an evaluation conducted by a qualified examiner who is not employed by the district responsible for the education of the child in question. “Independent educational evaluation at public expense” means that the district either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to the parent. A parent of a child with a disability or a suspected disability has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the district. However, the district may initiate a due process hearing to show that its evaluation is appropriate. If the final decision is that the district's evaluation is appropriate, the parent still has the right to an independent educational evaluation, but not at public expense. If the parent obtains an independent educational evaluation at the parent’s own expense and the evaluation meets district criteria, the results of the evaluation must be considered by the district in any decision made with respect to the provision of a free appropriate public education to the child and may be presented as evidence at a due process hearing regarding the child. If a hearing officer requests an independent educational evaluation as part of a hearing, the cost of the evaluation must be at public expense. When a parent requests an IEE, the district shall provide the parent information about where an independent educational evaluation may be obtained and the district criteria applicable to independent educational evaluations.
When 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, shall be the same as the criteria which the district uses when it initiates an evaluation.
IMPARTIAL DUE PROCESS HEARING - A parent or a district may initiate a hearing regarding the district’s proposal or refusal to initiate or change the identification, evaluation, or educational placement of a the child or the provision of a free appropriate public education to the child.
• When a hearing is initiated, the district shall provide a copy of the procedural safeguards to the parent and inform the parent of the availability of mediation.
• The hearing will be conducted by the district directly responsible for the education of the child, which under state law is the district of residence unless that district has arranged for another district to conduct the hearing.
• The parent shall provide written notice to the district that includes the child’s name, address, school, description of the nature of the problem resulting in the request for hearing and the parent’s proposed resolution of the problem to the extent known and available to the parent at the time. This notice shall remain confidential. A model notice form is available from the district.
• The district shall inform the parent of any free or low-cost legal and other relevant services available in the area if the parent requests the information or the parent or the district initiates a due process hearing.
• A hearing may not be conducted by a person who is an employee of a district which is involved in the education or care of the child, or by any person having a personal or professional interest which would conflict with his or her objectivity in the hearing. A person who otherwise qualifies to conduct a hearing is not an employee of the district solely because he or she is paid by the district to serve as a hearing officer.
• Each district shall keep a current Michigan Department of Education-developed and Department-distributed list of the persons who serve as hearing officers. This list shall be provided to the parents upon any request for a hearing. The list must include a statement of the qualifications of each of those persons.
• The parents and the district shall attempt to mutually agree on a hearing officer. If they cannot agree, the district will ask the Michigan Department of Education to appoint a hearing officer.
• The hearing shall be scheduled not less than 15 days and not more than 30 days after receipt of a request for a hearing and the public agency shall ensure that a final hearing decision is reached and mailed to the parties within 45 days after the receipt of a request for a hearing, unless the hearing officer grants a specific extension at the request of either party.
• The decision made in a due process hearing is final, unless a party to the hearing timely appeals the decision under the procedures for impartial administrative appeal described below.
DUE PROCESS HEARING RIGHTS - Any party to a hearing has the right to:
• be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities;
• present evidence and confront, cross-examine, and compel the attendance of witnesses;
• prohibit the introduction of any evidence at the hearing that has not been disclosed to the other party at least five business days before the hearing;
• request the hearing officer to bar as evidence at the hearing any evaluation or recommendation completed but not disclosed to the other party at least five business days prior to the hearing;
• obtain a written or, at the option of the parent, electronic verbatim record of the hearing or obtain alternate forms of the verbatim record to be provided in the parent’s native language at no cost to the parent; and
• obtain written or, at the option of the parent, electronic findings of fact and decisions at no cost to the parent.
After deleting any personally identifiable information, the district shall transmit those findings and decisions to the State Advisory Panel and make them available to the public. Parents involved in hearings must be given the right to have the child who is the subject of the hearing present and to open the hearing to the public. Each hearing must be conducted at a time and place which is reasonably convenient to the parents and child involved.
MEDIATION - Any party before or after requesting a hearing may request mediation which is a process through which the parties seek to reach a mutually agreeable settlement. Mediation is a voluntary procedure. The mediator shall be subject to mutual agreement by the parties and shall be a qualified and impartial mediator trained in effective mediation techniques. The same person shall not mediate and hear the same dispute. The mediation shall not be used to delay the hearing or deny other rights or procedural safeguards. If an agreement is reached at mediation, such agreement shall be set forth in a written mediation agreement. Within five school days of receipt of the mediation agreement, under Michigan special education rules, an IEPT shall be convened to incorporate the agreement into the IEP. If any party rejects the mediator’s recommendations, the case shall proceed to hearing in the normal fashion.
The local district or the state agency may require parents who choose not to use the mediation process to meet, at a time and location convenient to the parents, with a disinterested party who is under contract with either: (a) a parent training and information center or community parent resource center; or (b) an appropriate alternate dispute resolution entity. The purpose of the meeting would be to encourage the use and explain the benefits of the mediation process to the parents.
The state maintains a list of individuals who are qualified mediators and knowledgeable in the laws and regulations relating to the provision of special education and related services. There is no cost for the mediation process to the parents. Each session in the mediation process shall be scheduled in a timely manner and shall be held at a location that is convenient to the parties to the dispute. Discussions that occur during the mediation process shall be confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding. The parties to a mediation process may be required to sign a confidentiality pledge prior to the commencement of mediation.
ADMINISTRATIVE APPEAL; IMPARTIAL REVIEW - Any party aggrieved by the findings and decision in the hearing may appeal to the Michigan Department of Education (MDE) for a state review within 25 calendar days of receipt of the decision. The appealing party shall send a copy of the party’s appeal to the other party. If there is an appeal, the Michigan Department of Education shall conduct an impartial review of the hearing. The official conducting the review shall:
(1) examine the entire hearing record;
(2) ensure that the procedures at the hearing were consistent with the requirements of due process;
(3) seek additional evidence if necessary. If a hearing is held to receive additional evidence, the hearing rights previously described apply;
(4) afford the parties an opportunity for oral or written argument, or both, at the discretion of the reviewing official;
(5) make an independent decision upon completion of the review; and
(6) give a copy of written or, at the option of the parents, electronic findings and the decision to the parties.
Each review involving oral arguments must be conducted at a time and place which is reasonably convenient to the parents and child involved. The MDE ensures that a final decision is reached in an administrative review and mailed to the parties within 30 days after the receipt of a request for a review, unless the reviewing official grants a specific extension at the request of either party. The decision made by the reviewing official is final, unless a party brings a civil action.
CIVIL ACTION - Any party aggrieved by the findings and decision made in an administrative review has the right to bring a civil action in a federal district court or state court of competent jurisdiction.
CHILD'S STATUS DURING PROCEEDINGS (“Stay-Put”) - During the pendency of any administrative hearing or judicial proceeding, the child involved in the hearing must remain in his or her present educational placement, unless the district and the parents of the child agree otherwise or as may be determined by the procedure set forth for an alternative interim educational placement. If the hearing involves an application for initial admission to public school, the child, with the consent of the parents, shall be placed in the public school program until the completion of all of the proceedings.
DISCIPLINE
REMOVALS FROM CURRENT PLACEMENT - The district may order:
(1) a removal of a student with a disability, just as it would for students who are nondisabled, for not more than ten school days for violations of school rules. Additional separate removals are permissible for up to ten consecutive school days in the same school year for separate incidents of misconduct as long as these removals do not constitute a change of placement. Beginning on the 11th day of removals that are not a change of placement, the district must provide services to enable the child to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the child’s IEP.
(2) a change of placement to an appropriate interim alternative educational setting for the same amount of time that a child without a disability would be subject to discipline, but for not more than 45 calendar days, when: (a) the child carries a dangerous weapon to school or to a school function operated by the district; or (b) the child knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or a school function operated by the district.
CHANGE OF PLACEMENT: GENERAL DEFINITION
A change of placement occurs if the removal is for more than 10 consecutive school days (which would include a 45 calendar day interim alternative placement) or if a series of removals cumulates to more than 10 school days in a school year and constitutes a pattern of removal because of factors such as the length of each removal, the total amount of time, and the proximity of the removals to one another.
CHANGE OF PLACEMENT: DRUGS AND DANGEROUS WEAPONS
A change of placement for a student with a disability to another educational setting may be made by school personnel for not more than 45 calendar days if the student possesses, uses, sells, or solicits the sale of illegal drugs, or possess or carries a dangerous weapon to school or a school function.
An illegal drug means a controlled substance; but does not include a substance that is legally possessed by the student or used under the supervision of a licensed health-care professional.
A dangerous weapon is defined as a weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocketknife with a blade of less than two and one-half inches in length.
The educational setting for the 45-day interim alternative placement (IAP) is determined by the IEP team. The IAP must enable the child to continue to participate in the general curriculum, although in another setting, and to continue to receive those services and modifications, including those described in the child's current IEP, that will enable the child to meet the goals set out in that IEP, and shall include services and modifications designed to address the behaviors which resulted in the child being placed in the IAP.
CHANGE OF PLACEMENT: DANGEROUSNESS
In the event of dangerous behavior that does not involve weapons or drugs, a hearing officer may order a change of placement of a child with a disability to an IAP for not more than 45 calendar days if the hearing officer: (1) determines that the district has demonstrated by substantial evidence that maintaining the current placement of such child is substantially likely to result in injury to the child or to others; (2) considers the appropriateness of the child's current placement; (3) considers whether the district has made reasonable efforts to minimize the risk of harm in the child's current placement, including the use of supplemental aids and services; and (4) determines that the IAP meets the requirements of the setting developed by the IEP team set forth above.
PROCEDURES
If a disciplinary action involving a change in the current educational placement is contemplated:
(1) not later than the date on which the decision to take disciplinary action is made, the parents shall be notified of that decision and of the procedural safeguards accorded them under the Individuals with Disabilities Education Act;
(2) Either before or not later than 10 business days after removing a child for more than 10 school days or commencing a removal that is a change in placement, e.g., a suspension resulting in a pattern of exclusion or a 45-day IAP, the district shall convene an IEP meeting to develop an assessment plan to address such behavior, if such has not been done previously. As soon as practicable after the plan is developed and the assessments are completed, an IEP meeting shall be convened to develop and implement appropriate behavior interventions to address the behavior. If the child already has a behavior intervention plan, the IEP team shall review the plan and its implementation and modify them as necessary to address such behavior. If the child is subsequently subject to a further removal that is not a change of placement, the IEP team members shall review the plan and its implementation to determine if modifications are necessary but need not meet unless one or more team members believe modifications are needed.
(3) immediately, if possible, but in no case later than 10 school days after the date on which the decision to take disciplinary action is made, a review shall be conducted of the relationship between the child's disability and the behavior subject to the disciplinary action. This is called the manifestation determination review.
MANIFESTATION DETERMINATION REVIEW
The manifestation determination review shall be conducted by the IEP team and other qualified personnel. The IEP team may determine that the behavior of the child was not a manifestation of the child's disability only if the IEP team:
(1) first considers, in terms of the behavior subject to disciplinary action, all relevant information, including: (a) evaluation and diagnostic results, including results and other relevant information supplied by the parents of the child; (b) observations of the child; and (c) the child's IEP and placement; and
(2) then determines that: (a) in relationship to the behavior subject to disciplinary action, the child's IEP and placement were appropriate and the special education services, supplementary aids and services, and behavior intervention strategies were provided consistent with the child's IEP and placement; (b) the child's disability did not impair the ability of the child to understand the impact and consequences of the behavior subject to disciplinary action; and (c) the child's disability did not impair the ability of the child to control the behavior subject to disciplinary action.
If the result of this review is a determination that the behavior of the child with a disability was not a manifestation of the child's disability, the relevant disciplinary procedures applicable to children without disabilities may be applied to the child in the same manner in which they would be applied to children without disabilities, except that a free, appropriate public education shall continue to be available to the child. If the district initiates disciplinary procedures applicable to all children, the district shall ensure that the special education and disciplinary records of the child with a disability are transmitted for consideration by the person or persons making the final determination regarding disciplinary action.
EXPEDITED HEARINGS
If the child's parent disagrees with a determination that the child's behavior was not a manifestation of the child's disability or with any decision regarding placement in an IAP, the parent may request a hearing. The district will arrange for an expedited hearing when a hearing is requested by a parent. If the hearing is requested regarding a manifestation determination where there is no IAP, typical stay-put procedures apply.
When a parent requests a hearing regarding a disciplinary action in which the district or a hearing officer has ordered a change in placement of a child with a disability to an IAP for not more than 45 days, to challenge the IAP or the manifestation determination, the child shall remain in the IAP pending the decision of the hearing officer or until the expiration of the time period originally ordered, whichever occurs first, unless the parent and the district agree otherwise.
If a child is placed in an IAP for not more than 45 days and the district proposes to change the child's placement after expiration of the IAP, the child shall remain in the current placement (the placement which the child was in prior to the IAP) during the pendency of any proceeding to challenge the proposed change in placement. The district may request an expedited hearing if the district maintains that it is dangerous for the child to be in the current placement during the pendency of the due process proceedings.
PROTECTIONS FOR CHILDREN NOT YET ELIGIBLE FOR SPECIAL EDUCATION AND RELATED SERVICES - A child who has not been determined to be eligible for special education and related services under the Individuals with Disabilities Education Act and who has engaged in behavior that violated any rule or code of conduct of the district, including carrying a dangerous weapon to school or to a school function operated by the district or knowingly possessing or using illegal drugs or selling or soliciting the sale of a controlled substance while at school or a school function operated by the district, may assert any of the protections provided for in IDEA if the district had knowledge that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred.
If a district does not have knowledge that a child is a child with a disability prior to taking disciplinary measures against the child, the child may be subjected to the same disciplinary measures as measures applied to children without disabilities who engage in comparable behaviors, consistent with the following limitations.
The district is deemed to have prior knowledge that the student is a student with a disability if:
(1) the parent has expressed concern in writing (or orally if the parent does not know how to write or has a disability that prevents a written statement) to personnel of the district that the student is in need of special education and related services;
(2) the behavior or performance of the student demonstrates the need for these services as a child with a disability;
(3) the teacher of the student or other personnel of the district has expressed concern about the behavior or performance of the student to the director of special education or other personnel in accordance with the district’s established Child Find or special education referral system;
(4) the parent of a student has requested an evaluation for special education.
The district would not be deemed to have prior knowledge of a disability if, a result of receiving information listed above, the district:
(1) conducted an evaluation and determined the child was not a child with a disability; or
(2) determined an evaluation was not necessary; and
(3) provided notice to the parent of this determination.
If a request is made for an evaluation of a child during the time period in which the child is subject to disciplinary measures, i.e., the child is suspended, expelled or removed to an alternative educational setting, the evaluation shall be conducted in an expedited manner. Until the evaluation is completed, the child shall remain in the educational placement determined by school authorities. If the child is determined to be a child with a disability, taking into consideration information from the evaluation conducted by the district and information provided by the parents, the district shall provide special education and related services in accordance with the Individuals with Disabilities Education Act.
REFERRAL TO AND ACTION BY LAW ENFORCEMENT AND JUDICIAL AUTHORITIES - The Individuals with Disabilities Education Act does not prohibit a district from reporting a crime committed by a child with a disability to appropriate authorities or prevent state or local law enforcement or 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. A district reporting a crime committed by a child with a disability shall ensure that copies of the special education and disciplinary records of the child are transmitted for consideration by the appropriate authorities to whom it reports the crime to the extent permitted by the Family Educational Rights and Privacy Act.
AWARD OF ATTORNEY'S FEES - In any action or proceeding brought under of the Individuals with Disabilities Education Act, a court may award reasonable attorney's fees to the parents or guardians of a child with a disability who is the prevailing party. Attorney's fees may not be awarded relating to any meeting of the IEP team unless the meeting is convened as a result of an administrative proceeding or judicial action. Attorney's fees may not be awarded in any action or proceeding under IDEA for services performed subsequent to the time of a written offer of settlement to a parent if: (1) the offer is made in a civil action within the time prescribed by Rule 68 of the Federal Rules of Civil Procedure or, in an administrative proceeding, more than 10 days before the proceeding begins; (2) the offer is not accepted within 10 days; and (3) the court or hearing officer finds that the relief finally obtained by the parents is not more favorable to them then the offer of settlement.
Notwithstanding these limitations, attorney's fees may be awarded to a parent who is the prevailing party and who was substantially justified in rejecting the settlement offer.
The court shall reduce the amount of attorney's fees awarded under IDEA whenever it finds that: (1) the parent, during the course of the action or proceeding, unreasonably protracted the final resolution of the controversy; (2) the amount of the attorney's fees otherwise authorized to be awarded unreasonably exceeds the hourly rate prevailing in the community for similar services by attorneys of reasonably comparable skill, reputation, and experience; (3) the time spent and legal services furnished were excessive considering the nature of the action or proceeding; or (4) the attorney representing the parent, when requesting a due process hearing, did not provide the district with a written notice that includes the child's name, address and school, a description of the nature of the problem relating to the proposed initiation or change (including facts relating to the problem), and a proposed resolution of the problem to the extent known and available to the parents at the time.
The court shall not reduce the amount of attorney's fees awarded, however, if it finds that the district unreasonably protracted the final resolution of the action or proceeding or violated IDEA procedural safeguards requirements.
REQUIREMENTS FOR UNILATERAL PLACEMENTS BY PARENTS IN PRIVATE SCHOOLS - If the parents of a child with a disability, who previously received special education programming from the district, enrolls the child in a private school without the consent of, or referral by, the district, a court or hearing officer may require the district to reimburse the parents for the cost of the private school if the court or hearing officer finds the district had not made a free appropriate public education available to the child in a timely manner prior to enrollment and the private school placement is appropriate. But, the cost of reimbursement may be reduced or denied if:
(1) at the most recent IEP meeting the parents attended prior to removal of the child from the district's school, the parents did not inform the IEP team that they were rejecting the placement proposed by the district to provide a free appropriate public education to the child, including stating their concerns and intent to enroll the child in a private school at public expense; or
(2) ten (10) business days (including any holidays that occur on a business day) prior to removal of the child from the district's school, the parents did not give written notice to the district of the same information described above. The parent need not provide the information described above if the parent is illiterate and cannot write in English, doing so would likely result in physical or serious emotional harm to the child, the district prevented the parent from doing so or the parent did not receive this notice of the requirement. The cost of reimbursement may also be reduced or denied if, prior to the parents removing the child from the district's school, the district informed the parents of its intent to evaluate the child (including an appropriate and reasonable statement of the purpose of the evaluation) but the parents did not make the child available for such evaluation or a court found the actions taken by the parents unreasonable.
Notwithstanding this notice requirement, the cost of reimbursement may not be reduced or denied for failure to provide such notice if the parent is illiterate and cannot write in English, if providing such notice would likely result in the physical or serious emotional harm to the child, the school prevented the parent from providing such notice, or the parents had not received notice of their procedural safeguards. A district is not required to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility in which the parents unilaterally place the child without the consent or referral by the district, if that district made a free and appropriate public education available to the child and the parents elected to place the child in such private school or facility.
Children enrolled in private schools by their parents may participate in special education programs and related services to the extent consistent with the number and location of such children with disabilities in the state who are enrolled by their parents in private elementary and secondary schools. The amounts expended for those services by the district shall be equal to a proportionate amount of the federal funds made available pursuant to Part B of the IDEA. Such services may be provided to children with disabilities on the premises of private, including parochial, schools to the extent consistent with law.
SURROGATE PARENTS - Each district shall assign an individual to act as surrogate for the parents to protect the educational rights of a child when:
(1) no parent can be identified;
(2) the district, after reasonable efforts, cannot discover the whereabouts of a parent; or
(3) the child is a ward of the state under the laws of the state.
The method for determining whether a child needs a surrogate for the parent and for assigning a surrogate for the parent to a child is the responsibility of the district. A district appointing a surrogate parent for a child ensures that the person:
(1) has no interest that conflicts with the interests of the child that he/she represents;
(2) has knowledge and skills to adequately represent the child as identified in the Michigan Special Education State Plan; and
(3) is not an employee of the district or another agency which is involved in the education or care of the child.
A district may select a surrogate who is an employee of a non-public agency that only provides non-educational care for the child if that person otherwise meets the standards above. A person who otherwise qualifies to be a surrogate parent is not an employee of the district solely because he or she is paid by the district to be a surrogate.
The surrogate for the parent may represent the child in all matters relating to:
(1) the identification, evaluation, and educational placement of the child; and
(2) the provision of a free appropriate public education (FAPE) to the child.
TRANSFER OF PARENTAL RIGHTS AT AGE OF MAJORITY - When a student with a disability reaches the age of majority (age 18 in Michigan if a legal guardian has not been appointed by the court), the district shall provide any notice required by IDEA to both the student and the parents. The district shall notify both the student and the parents that all other rights accorded to parents transfer to the student. All rights accorded to parents transfer to students who are incarcerated in an adult or juvenile federal, state or local correctional institution.
ACCESS TO RECORDS - Each district shall permit parents to inspect and review all education records relating to their child. The district shall comply with a request without unnecessary delay and before any meeting regarding an individualized education program or hearing relating to the identification, evaluation, or placement of the child, and in no case more than 45 days after the request has been made. Parents requesting records for use at an IEP Team meeting, a hearing, or an appeal shall be given access to the requested records immediately. The right to inspect and review education records under this section includes:
(1) the right to a response from the district to reasonable requests for explanations and interpretations of the records;
(2) the right to have a representative of the parent inspect and review the records; and
(3) the right to request that the district provide copies of the records containing the information if failure to provide those copies would effectively prevent the parent from exercising the right to inspect and review the records.
A district may presume that the parent has authority to inspect and review records relating to his or her child unless the district has been advised that the parent does not have the authority under application state law governing such matters as guardianship, separation, and divorce. If any education record includes information on more than one child, the parents of those children shall have the right to inspect and review only the information relating to their child or to be informed of that specific information. Each district shall provide parents, on request, a list of the types and locations of education records collected, maintained, or used by the district.
FEES FOR SEARCHING, RETRIEVING AND COPYING RECORDS - A district may not charge a fee to search for or to retrieve information from the child's education records. A district may charge a fee for copies of records which are made for parents if the fee does not effectively prevent the parents from exercising their right to inspect and review those records.
RECORD OF ACCESS - Each district shall keep a record of parties obtaining access to education records collected or maintained, except when access is given to a parent, a third party with the prior written consent of the parent, authorized employees of the district or pursuant to a subpoena whose existence cannot be disclosed. Records of access shall include the name of the party, the date access was given, and the purpose for which the party is authorized to use the records.
AMENDMENT OF RECORDS AT PARENT'S REQUEST - A parent who believes that information in education records collected, maintained, or used is inaccurate or misleading or violates the privacy or the other rights of their child, may request the district which maintains the information to amend the information. The district shall decide whether to amend the information in accordance with the request within a reasonable period of time after receipt of the request. If the district decides to refuse to amend the information in accordance with the request, it shall inform the parent of the refusal, and advise the parent of the right to a hearing. The district shall, on request, provide an opportunity for a hearing to challenge information in education records to insure that it is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of the child. If, as a result of the hearing, the district decides that the information is inaccurate, misleading, or otherwise in violation of the privacy or other rights of the child, it shall amend the information accordingly and so inform the parent in writing. If as a result of the hearing, the district decides that the information is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of the child, it shall inform the parent of the right to place in the education records maintained on the child, a statement commenting on the information or setting forth his or her reasons for disagreeing with the decision of the district. Any explanation placed in the records of the child under this section must be maintained by the district as part of the records of the child as long as the record or contested portion is maintained by the district; if the records of the child or the contested portion are disclosed by the district to any party, the explanation must also be disclosed to the party.
COMPLAINTS - A formal complaint is a specific written and signed allegation, which includes the facts on which it is based, that there is an uncorrected violation of the Michigan Administrative Rules for Special Education, Public Act 451 of 1976 as amended (the Revised School Code), the Individuals with Disabilities Education Act, the State Board of Education's Special Education Plan, or the intermediate school district (ISD) special education plan. Should the parent suspect a violation, the parent may delay filing a complaint and contact the ISD, director of special education or the superintendent's designee. This person may attempt to resolve the concerns informally, but the parents must be told of their right to file a formal complaint at any time. The parent must also be given a copy of the rules dealing with complaints (Part 8 of the Michigan Administrative Rules for Special Education, as amended), the State Board's procedures pertaining to complaints, and be assisted in writing the formal complaint, if necessary.
If the parent files a formal complaint, the ISD must investigate the complaint and give the parent a copy of the findings within 21 calendar days. If, after reviewing the district's report the parent is not satisfied, the parent may appeal to the Michigan Department of Education (MDE). The MDE may for good cause investigate any complaint at any time. The MDE must complete the review process within 60 calendar days from when the complaint was filed.
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