NOTICE OF PROCEDURAL SAFEGUARDS FOR PARENTS
WHO HAVE UNILATERALLY ENROLLED A CHILD
WITH A DISABILITY AT A NONPUBLIC SCHOOL
INTRODUCTION
This document is intended to provide an overview of the special education rights, called procedural safeguards, which are
available to parents who have unilaterally enrolled a child with a disability in a nonpublic school, including a private school
or a home school. These same procedural safeguards are also available for students with disabilities who have reached the
age of 18, who remain eligible for special education, and who have enrolled themselves in a nonpublic school. This
document will be provided in your native language or through another mode of communication when necessary.
PARENTAL CONSENT
1.
Consent means that you have been fully informed of the information relevant to the activity for which your written
consent is sought. Your consent is voluntary and may be revoked at anytime. However, the revocation of your
consent does not negate any action that has occurred after your consent was given but before your consent was
revoked, except for the revocation of consent for a behavior intervention plan, which requires the school district to
immediately stop using the plan.
2.
The school district must obtain your consent before conducting an initial evaluation of your child. Your consent for
an initial evaluation does not authorize the school district to begin providing your child with special education and
related services.
3.
Your consent is required before the school district conducts a reevaluation of your child. The reevaluation may
occur without your consent if the school district has taken reasonable steps to get your consent and you have failed
to respond.
4.
Your consent is not required for the district to review existing data on your child or to administer a test or other
evaluation that is given to all children, unless consent is required from parents of all children.
5.
Your consent is required before the school district begins to provide special education and related services to your
child. If you refuse to consent to the initial provision of services to your child, the school district may not override
your refusal, and the school district will not be considered in violation of the law for a failure to provide your child
with special education and related services for which the school district requested your consent.
6.
You have a right to object in writing to any action the school district proposes. However, the manner in which a
parent of a unilaterally placed non-public school student challenges a school district’s decision or proposal varies
according to the nature of the decision or proposal.
7.
Generally, your consent is required before the school district may disclose personally identifiably information
regarding your child or your child’s educational records, but this information may be disclosed to individuals
within the district who have a legitimate educational interest in the information or are providing services to your
child under the IDEA. This information may also be disclosed in accordance with the Family Educational Rights
and Privacy Act (“FERPA”), the Minnesota Government Data Practices Act, the Individuals with Disabilities
Education Act (“IDEA”), and other laws.
ACCESS TO EDUCATION RECORDS
Your Access to Records
Subject to any applicable limitations under the Minnesota Government Data Practices Act, you have the right to review your
child’s education records. The school district must allow you to review the records without unnecessary delay, and before
any meeting regarding a services plan or any due process hearing about the student. The school district generally must
comply with your request to review your child’s education records within ten business days.
1
Your right to inspect and review education records includes the right to:
1.
2.
3.
4.
An explanation or interpretation of your child’s records from the district upon request;
Have your representative inspect and review the records on your behalf;
Review your child’s records as often as you wish; and
Ask the school district to provide copies of your child’s education records to you, subject to any costs that
are permitted under the law.
Record of Access by Others
The school district must keep a record of persons accessing your child’s special education records. This record must include
the persons, except parents and authorized school district employees, who are given access to your child’s education records.
This record of access must include the name of the person who accessed the records, the date of access, and the purpose of
the person’s access to your child’s education records.
Consent to Release Records
Parental consent is required before personally identifiable information is released to unauthorized individuals or agencies.
The consent must be in writing and must specify the individuals or agencies authorized to receive the information; the nature
of the information to be disclosed; the purpose for which the information may be used; and a reasonable expiration date for
the authorization to release information. Upon request, the district must provide you with a copy of records it discloses after
you have given this consent. The district may not disclose information contained in your child’s services plan (such as
diagnosis and treatment information) to a health plan company without your signed consent.
If your child is enrolled or is going to be enrolled in a nonpublic school that is not located in the school district of your
residence, your consent must be obtained before any personally identifiable information about your child is released between
officials of the school district where the private school is located and officials of the school district where you reside.
Fees for Searching, Retrieving, and Copying Records
The school district may not charge a fee to search or retrieve your child’s education records. However, if you request copies,
the district may charge a reasonable fee for the copies, unless charging that fee would prevent you from exercising your right
to inspect and review the education records because you cannot afford to pay it. If you request 100 or fewer copies of black
and white, letter or legal size paper copies, the district may not charge more than $0.25 per copy.
Amendment of Records at Parent’s Request
If you believe that information in your child’s records is inaccurate, misleading, incomplete or in violation of your child’s
privacy or other rights, you may request in writing that the school district amend or remove the information. The school
district must decide within a reasonable time whether it will amend the records. If the school district decides not to amend
the records, it must inform you that you have the right to a hearing to challenge the school district’s decision. If, as a result
of that hearing, the school district decides that the information is not inaccurate, misleading, incomplete or in violation of
your child’s privacy right, it must inform you that you have the right to include a statement of your comments and
disagreements alongside the challenged information in your child’s education records.
Destruction of Records
The school district will inform you when personally identifiable information is no longer needed in order to provide
educational services to your child. That information must be destroyed at your request. However, the school district may
retain a permanent record of your child’s name, address, phone number, grades, attendance records, classes attended, grade
level completed and year completed. The school district may not destroy any education records if there is an outstanding
request to review those records.
2
CHILD FIND
Under the Individuals with Disabilities Education Act (IDEA), public schools are obligated to locate, evaluate, and identify
all children with disabilities, including those students voluntarily enrolled in and attending nonpublic schools.
SPECIAL INSTRUCTION AND SERVICES
Under federal law, no parentally placed nonpublic school child with a disability has an individual right to receive some or all
of the special education and related services that the child would receive if enrolled in a public school. However, under
Minnesota law, no resident of a school district who is eligible for special instruction and services may be denied instruction
and service on a shared time basis because of attending a nonpublic school. A shared time student is one who attends public
school programs for part of the regular school day and who otherwise fulfills the requirements of the compulsory attendance
law by attending a nonpublic school. For those children with a disability who attend nonpublic school at their parents’
choice, a school district may provide special instruction and services at the public school, the nonpublic school, or a neutral
site. The school district must determine the location where it will provide services on a student-by-student basis, consistent
with federal law.
SERVICES PLAN
A “services plan” describes the special education and related services that the school district will provide to a child with a
disability who attends a nonpublic school for all or part of the school day. The special education and related services
described in a services plan must be provided by personnel meeting the same standards as personnel providing services at
the public school district. A services plan must be developed, reviewed, and revised consistent with the requirements for
developing, reviewing, and revising an individual education program (IEP). On a student-by-student basis, the school
district may offer to provide the services specified in a services plan at a public school, a neutral site, or a nonpublic school,
including a religious school to the extent consistent with law.
INDEPENDENT EDUCATIONAL EVALUATIONS
An independent educational evaluation (“IEE”) is an evaluation by a qualified person who is not an employee of your
district. You may ask for an IEE at school district expense each time the district evaluates the student and you disagree with
the district’s evaluation. A hearing officer may also order an independent evaluation of the student at school district expense
during the pendency of a due process hearing.
Upon your request for an IEE, the district must provide you with information about where an IEE may be obtained and the
applicable district criteria for an IEE. When you request an IEE, the district must, without delay, ensure that either the IEE
is provided at public expense or request a hearing to determine the appropriateness of the district’s evaluation. If the district
requests a hearing and the hearing officer determines the district’s evaluation is appropriate, you still have the right to an
independent evaluation, but not at public expense. If you obtain an IEE at your own expense, the results of the evaluation
must be considered by the district and may be presented as evidence at a due process hearing regarding the district’s
obligation to locate, evaluate, or identify the student.
PRIOR WRITTEN NOTICE
The district must provide you with prior written notice each time it proposes to initiate or change, or refuses to initiate or
change the identification, evaluation or educational placement of your child, or to modify a services plan for your child.
This written notice must include:
1.
2.
3.
4.
5.
6.
7.
A description of the action proposed or refused;
An explanation of why the district proposes or refuses to take the action;
A description of any other options the district considered and the reasons why those options were rejected;
A description of each evaluation procedure, test, record or report the district used as a basis for its proposal
or refusal;
A description of any other factors relevant to the district’s proposal or refusal;
A statement that your child has protection under these procedural safeguards and information about how
you can get a copy of the brochure; and
Sources for you to contact to obtain assistance in understanding these procedural safeguards.
3
WRITTEN COMPLAINTS
You may file a complaint with the Minnesota Department of Education (“MDE”) to challenge any aspect of the school
district’s provision of special education and related services to your child. A complaint sent to MDE must:
1.
2.
3.
4.
5.
Be in writing and be signed by the individual or organization filing the complaint;
Allege violations of federal and/or state special education law or rules that have occurred not more than
one (1) year prior to the date the complaint is received by MDE;
State the facts upon which the allegation is based and include a proposed resolution for your complaint;
Include the name, address and telephone number of the person or organization filing the complaint, the
name and address of the nonpublic school attended by the child; and the school district in which the
nonpublic school is located or against which the complaint is being raised;
Provide a copy of the complaint to the school district at the same time the complaint is filed with MDE.
The complaint must be sent to:
Minnesota Department of Education
Division of Compliance and Assistance
Due Process Supervisor
1500 West Highway 36
Roseville, MN 55113-4266
(T) 651-582-8689
(F) 651-582-8725
MDE will investigate the complaint and issue a written decision within 60 days. The final complaint decision may be
appealed to the Minnesota Court of Appeals within 60 days of receiving the final decision.
MEDIATION AND IMPARTIAL DUE PROCESS HEARINGS
The parents of children with disabilities who are unilaterally attending a nonpublic school have limited access to due process
hearings and other dispute resolution proceedings. The parents of children with disabilities who are unilaterally attending a
nonpublic school may only request mediation and/or a due process hearing to resolve a dispute over the district’s
responsibility to locate, evaluate, and identify a child with a disability.
Mediation
Mediation is a voluntary process to help resolve disputes. You or the school district may request mediation from the
Minnesota Special Education Mediation Service (MNSEMS) at 651-582-8222 or 1-866-466-7367. Mediation uses a neutral
third party trained in facilitative dispute resolution techniques. Mediation may not be used to deny or delay your right to a
due process hearing regarding the school district’s obligation to locate, evaluate, or identify your child. Both you and
district staff must agree to engage in mediation before a mediator can be assigned. At any time during the mediation, you or
the school district may end the mediation.
Procedures for Initiating a Due Process Hearing
Impartial due process hearings must be requested in writing within two (2) years of the date you knew or should have known
about the alleged action that forms the basis of your request for a hearing. A request for a hearing must be sent to MDE and
to the responsible school district. You may only request a due process hearing to resolve a dispute over the district’s
responsibility to locate, evaluate, or identify a child with a disability.
The request for a due process hearing must include:
1.
2.
3.
4.
5.
The name of your child;
The address of your child;
The name of the school your child is attending;
A description of the problem(s), including your view of the facts relating to such problem(s); and
A proposed resolution of the problem to the extent known to you.
4
The MDE will appoint an impartial hearing officer to conduct the due process hearing.
Resolution Session
When you request a hearing regarding the location, identification, or evaluation of your child, the school district must
arrange for a resolution session to occur within fifteen days after receiving the hearing request. The resolution session is an
opportunity for you to discuss your complaint with the school district and gives the district an opportunity to resolve the
complaint. The resolution session must include you and the relevant individuals involved with the child find process for
your child. If an agreement is reached during the resolution session, you and the school district must execute a legally
binding agreement stating the resolution. Either party may void the agreement within three business days of signing the
agreement. If the matter is not resolved to your satisfaction within 30 days of your hearing request, the hearing timelines
begin.
The requirement for this resolution session may only be waived if both you and the school district agree to mediation, or
both you and the school district agree to waive the resolution session requirement in writing. If you do not attend a
resolution meeting or mediation, and the school district does not agree to waive the meeting in writing, you are not entitled
to a hearing.
Your Rights During Hearing
Both you and the school district have the right to:
1.
2.
3.
4.
5.
6.
Be accompanied and advised by an attorney and by individuals with special knowledge or training with
respect to the problems of students with disabilities;
Present evidence;
Confront, cross-examine, and compel the attendance of witnesses;
Prohibit the introduction of any evidence at the hearing that has not been disclosed at least five business
days before the hearing, including, but not limited to, evaluation data and recommendations based on that
data;
Receive a written copy of the hearing transcript, or at your discretion, an electronic, verbatim record of the
hearing; and
Receive a written copy of the hearing officer’s findings of fact and decision, or at your discretion, an
electronic version of the findings of fact and decision.
As a parent, you have the right to:
1.
2.
3.
Have your child who is the subject of the hearing present;
Open the hearing to the public; and
Notice of the time, date, and place of the hearing from the hearing officer at least ten calendar days in
advance of the hearing.
Disclosure of Additional Evidence Before a Hearing
At least five business days before a hearing, you and the school district must disclose to each other any evidence that you
intend to use at the hearing, including, but not limited to, all evaluations of the student completed by that date as well as any
recommendations based on those evaluations. A hearing officer may refuse to allow you to introduce any undisclosed
evidence at the hearing unless the other party consents. All evidence must be limited to the specific issues described in the
request for a due process hearing.
Hearing Process
The hearing must be held at a location within the school district. The party who requests the hearing has the burden of
proving its case by a preponderance of the evidence. If you request a hearing, you would have the burden of proving, by a
preponderance of the evidence, that the district did not comply with its responsibility to locate, evaluate, or identify your
child.
5
The hearing officer will make a written decision based only on evidence received into the record at the hearing. The hearing
officer will make his or her written decision not more than 45 calendar days from the expiration of the resolution period.
Extensions may be available under some circumstances if the requesting party can show good cause. The hearing officer’s
decision is final unless you or the school district appeals from the decision by commencing a civil action.
Attorneys’ Fees
You may be able to recover your attorneys’ fees if you prevail in a due process hearing or further civil action. A petition for
fees must be filed in a court of competent jurisdiction. A judge may make an award of attorneys’ fees based on prevailing
rates in your community. The court may reduce an award of attorneys’ fees if it finds that you unreasonably delayed the
settlement or decision in the case or that you prevailed in a limited portion of your case. If the school district prevails and a
court agrees that your request for a hearing was for an improper purpose, such as to harass the school district, you may be
required to pay the school district’s attorneys’ fees.
Civil Action
If either party disagrees with the findings or decisions made by a hearing officer, the party may appeal by commencing an
action in federal district court or the Minnesota Court of Appeals. Different standards of review apply in each court. An
appeal to the Minnesota Court of Appeals must be made within 60 days of your receipt of the hearing officer’s decision. An
appeal to a federal district court must be made in accordance with federal and state law.
FOR MORE INFORMATION
If you need help understanding this notice or anything about your child’s education, please contact the administration at the
student’s school, the district’s director of student support services, or the person or the agencies listed below. This notice is
a general overview of procedural safeguards for parents of children with disabilities who are unilaterally enrolled at a
nonpublic school. This notice is not intended to address a parent’s specific rights in a particular factual situation.
If you have any questions or would like further information, please contact:
Dave Haveman
Director of Special Services
Hastings Public Schools
651-480-7009
dhaveman@hastings.k12.mn.us
For additional assistance, you may contact any of the groups listed below:
ARC Minnesota (advocacy for persons with
developmental disabilities)
www.arcminnesota.com
651-523-0823
1-800-582-5256
MN Association for Children’s Mental Health
www.macmh.org
651-644-7333
1-800-528-4511
MN Disability Law Center
www.mndlc.org
612-332-1441
1-800-292-4150
612-332-4668 (TTY)
Minnesota Department of Education
www.education.state.mn.us
651-582-8689
651-582-8201 (TTY)
NAMI Minnesota (National Alliance on Mental Illness)
www.namihelps.org
651-645-2948
1-888-NAMI-HELPS
PACER (Parent Advocacy Coalition for Educational
Rights)
www.pacer.org
952-838-9000
1-800-537-2237
952-838-0190 (TTY)
6
7