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U.S. Code as of:
01/19/04
Section 1415. Procedural safeguards
(a) Establishment of procedures
Any State educational agency, State agency, or local educational
agency that receives assistance under this subchapter shall
establish and maintain procedures in accordance with this section
to ensure that children with disabilities and their parents are
guaranteed procedural safeguards with respect to the provision of
free appropriate public education by such agencies.
(b) Types of procedures
The procedures required by this section shall include -
(1) an opportunity for the parents of a child with a disability
to examine all records relating to such child and to participate
in meetings with respect to the identification, evaluation, and
educational placement of the child, and the provision of a free
appropriate public education to such child, and to obtain an
independent educational evaluation of the child;
(2) procedures to protect the rights of the child whenever the
parents of the child are not known, the agency cannot, after
reasonable efforts, locate the parents, or the child is a ward of
the State, including the assignment of an individual (who shall
not be an employee of the State educational agency, the local
educational agency, or any other agency that is involved in the
education or care of the child) to act as a surrogate for the
parents;
(3) written prior notice to the parents of the child whenever
such agency -
(A) proposes to initiate or change; or
(B) refuses to initiate or change;
the identification, evaluation, or educational placement of the
child, in accordance with subsection (c) of this section, or the
provision of a free appropriate public education to the child;
(4) procedures designed to ensure that the notice required by
paragraph (3) is in the native language of the parents, unless it
clearly is not feasible to do so;
(5) an opportunity for mediation in accordance with subsection
(e) of this section;
(6) an opportunity to present complaints with respect to any
matter relating to the identification, evaluation, or educational
placement of the child, or the provision of a free appropriate
public education to such child;
(7) procedures that require the parent of a child with a
disability, or the attorney representing the child, to provide
notice (which shall remain confidential) -
(A) to the State educational agency or local educational
agency, as the case may be, in the complaint filed under
paragraph (6); and
(B) that shall include -
(i) the name of the child, the address of the residence of
the child, and the name of the school the child is attending;
(ii) a description of the nature of the problem of the
child relating to such proposed initiation or change,
including facts relating to such problem; and
(iii) a proposed resolution of the problem to the extent
known and available to the parents at the time; and
(8) procedures that require the State educational agency to
develop a model form to assist parents in filing a complaint in
accordance with paragraph (7).
(c) Content of prior written notice
The notice required by subsection (b)(3) of this section shall
include -
(1) a description of the action proposed or refused by the
agency;
(2) an explanation of why the agency proposes or refuses to
take the action;
(3) a description of any other options that the agency
considered and the reasons why those options were rejected;
(4) a description of each evaluation procedure, test, record,
or report the agency used as a basis for the proposed or refused
action;
(5) a description of any other factors that are relevant to the
agency's proposal or refusal;
(6) a statement that the parents of a child with a disability
have protection under the procedural safeguards of this
subchapter and, if this notice is not an initial referral for
evaluation, the means by which a copy of a description of the
procedural safeguards can be obtained; and
(7) sources for parents to contact to obtain assistance in
understanding the provisions of this subchapter.
(d) Procedural safeguards notice
(1) In general
A copy of the procedural safeguards available to the parents of
a child with a disability shall be given to the parents, at a
minimum -
(A) upon initial referral for evaluation;
(B) upon each notification of an individualized education
program meeting and upon reevaluation of the child; and
(C) upon registration of a complaint under subsection (b)(6)
of this section.
(2) Contents
The procedural safeguards notice shall include a full
explanation of the procedural safeguards, written in the native
language of the parents, unless it clearly is not feasible to do
so, and written in an easily understandable manner, available
under this section and under regulations promulgated by the
Secretary relating to -
(A) independent educational evaluation;
(B) prior written notice;
(C) parental consent;
(D) access to educational records;
(E) opportunity to present complaints;
(F) the child's placement during pendency of due process
proceedings;
(G) procedures for students who are subject to placement in
an interim alternative educational setting;
(H) requirements for unilateral placement by parents of
children in private schools at public expense;
(I) mediation;
(J) due process hearings, including requirements for
disclosure of evaluation results and recommendations;
(K) State-level appeals (if applicable in that State);
(L) civil actions; and
(M) attorneys' fees.
(e) Mediation
(1) In general
Any State educational agency or local educational agency that
receives assistance under this subchapter shall ensure that
procedures are established and implemented to allow parties to
disputes involving any matter described in subsection (b)(6) of
this section to resolve such disputes through a mediation process
which, at a minimum, shall be available whenever a hearing is
requested under subsection (f ) or (k) of this section.
(2) Requirements
Such procedures shall meet the following requirements:
(A) The procedures shall ensure that the mediation process -
(i) is voluntary on the part of the parties;
(ii) is not used to deny or delay a parent's right to a due
process hearing under subsection (f) of this section, or to
deny any other rights afforded under this subchapter; and
(iii) is conducted by a qualified and impartial mediator
who is trained in effective mediation techniques.
(B) A local educational agency or a State agency may
establish procedures to 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 -
(i) a parent training and information center or community
parent resource center in the State established under section
1482 or 1483 of this title; or
(ii) an appropriate alternative dispute resolution entity;
to encourage the use, and explain the benefits, of the
mediation process to the parents.
(C) The State shall maintain a list of individuals who are
qualified mediators and knowledgeable in laws and regulations
relating to the provision of special education and related
services.
(D) The State shall bear the cost of the mediation process,
including the costs of meetings described in subparagraph (B).
(E) Each session in the mediation process shall be scheduled
in a timely manner and shall be held in a location that is
convenient to the parties to the dispute.
(F) An agreement reached by the parties to the dispute in the
mediation process shall be set forth in a written mediation
agreement.
(G) Discussions that occur during the mediation process shall
be confidential and may not be used as evidence in any
subsequent due process hearings or civil proceedings and the
parties to the mediation process may be required to sign a
confidentiality pledge prior to the commencement of such
process.
(f) Impartial due process hearing
(1) In general
Whenever a complaint has been received under subsection (b)(6)
or (k) of this section, the parents involved in such complaint
shall have an opportunity for an impartial due process hearing,
which shall be conducted by the State educational agency or by
the local educational agency, as determined by State law or by
the State educational agency.
(2) Disclosure of evaluations and recommendations
(A) In general
At least 5 business days prior to a hearing conducted
pursuant to paragraph (1), each party shall disclose to all
other parties all evaluations completed by that date and
recommendations based on the offering party's evaluations that
the party intends to use at the hearing.
(B) Failure to disclose
A hearing officer may bar any party that fails to comply with
subparagraph (A) from introducing the relevant evaluation or
recommendation at the hearing without the consent of the other
party.
(3) Limitation on conduct of hearing
A hearing conducted pursuant to paragraph (1) may not be
conducted by an employee of the State educational agency or the
local educational agency involved in the education or care of the
child.
(g) Appeal
If the hearing required by subsection (f) of this section is
conducted by a local educational agency, any party aggrieved by the
findings and decision rendered in such a hearing may appeal such
findings and decision to the State educational agency. Such agency
shall conduct an impartial review of such decision. The officer
conducting such review shall make an independent decision upon
completion of such review.
(h) Safeguards
Any party to a hearing conducted pursuant to subsection (f) or
(k) of this section, or an appeal conducted pursuant to subsection
(g) of this section, shall be accorded -
(1) 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;
(2) the right to present evidence and confront, cross-examine,
and compel the attendance of witnesses;
(3) the right to a written, or, at the option of the parents,
electronic verbatim record of such hearing; and
(4) the right to written, or, at the option of the parents,
electronic findings of fact and decisions (which findings and
decisions shall be made available to the public consistent with
the requirements of section 1417(c) of this title (relating to
the confidentiality of data, information, and records) and shall
also be transmitted to the advisory panel established pursuant to
section 1412(a)(21) of this title).
(i) Administrative procedures
(1) In general
(A) Decision made in hearing
A decision made in a hearing conducted pursuant to subsection
(f) or (k) of this section shall be final, except that any
party involved in such hearing may appeal such decision under
the provisions of subsection (g) of this section and paragraph
(2) of this subsection.
(B) Decision made at appeal
A decision made under subsection (g) of this section shall be
final, except that any party may bring an action under
paragraph (2) of this subsection.
(2) Right to bring civil action
(A) In general
Any party aggrieved by the findings and decision made under
subsection (f) or (k) of this section who does not have the
right to an appeal under subsection (g) of this section, and
any party aggrieved by the findings and decision under this
subsection, shall have the right to bring a civil action with
respect to the complaint presented pursuant to this section,
which action may be brought in any State court of competent
jurisdiction or in a district court of the United States
without regard to the amount in controversy.
(B) Additional requirements
In any action brought under this paragraph, the court -
(i) shall receive the records of the administrative
proceedings;
(ii) shall hear additional evidence at the request of a
party; and
(iii) basing its decision on the preponderance of the
evidence, shall grant such relief as the court determines is
appropriate.
(3) Jurisdiction of district courts; attorneys' fees
(A) In general
The district courts of the United States shall have
jurisdiction of actions brought under this section without
regard to the amount in controversy.
(B) Award of attorneys' fees
In any action or proceeding brought under this section, the
court, in its discretion, may award reasonable attorneys' fees
as part of the costs to the parents of a child with a
disability who is the prevailing party.
(C) Determination of amount of attorneys' fees
Fees awarded under this paragraph shall be based on rates
prevailing in the community in which the action or proceeding
arose for the kind and quality of services furnished. No bonus
or multiplier may be used in calculating the fees awarded under
this subsection.
(D) Prohibition of attorneys' fees and related costs for
certain services
(i) Attorneys' fees may not be awarded and related costs may
not be reimbursed in any action or proceeding under this
section for services performed subsequent to the time of a
written offer of settlement to a parent if -
(I) the offer is made within the time prescribed by Rule 68
of the Federal Rules of Civil Procedure or, in the case of an
administrative proceeding, at any time more than 10 days
before the proceeding begins;
(II) the offer is not accepted within 10 days; and
(III) the court or administrative hearing officer finds
that the relief finally obtained by the parents is not more
favorable to the parents than the offer of settlement.
(ii) Attorneys' fees may not be awarded relating to any
meeting of the IEP Team unless such meeting is convened as a
result of an administrative proceeding or judicial action, or,
at the discretion of the State, for a mediation described in
subsection (e) of this section that is conducted prior to the
filing of a complaint under subsection (b)(6) or (k) of this
section.
(E) Exception to prohibition on attorneys' fees and related
costs
Notwithstanding subparagraph (D), an award of attorneys' fees
and related costs may be made to a parent who is the prevailing
party and who was substantially justified in rejecting the
settlement offer.
(F) Reduction in amount of attorneys' fees
Except as provided in subparagraph (G), whenever the court
finds that -
(i) the parent, during the course of the action or
proceeding, unreasonably protracted the final resolution of
the controversy;
(ii) the amount of the attorneys' 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;
(iii) the time spent and legal services furnished were
excessive considering the nature of the action or proceeding;
or
(iv) the attorney representing the parent did not provide
to the school district the appropriate information in the due
process complaint in accordance with subsection (b)(7) of
this section;
the court shall reduce, accordingly, the amount of the
attorneys' fees awarded under this section.
(G) Exception to reduction in amount of attorneys' fees
The provisions of subparagraph (F) shall not apply in any
action or proceeding if the court finds that the State or local
educational agency unreasonably protracted the final resolution
of the action or proceeding or there was a violation of this
section.
(j) Maintenance of current educational placement
Except as provided in subsection (k)(7) of this section, during
the pendency of any proceedings conducted pursuant to this section,
unless the State or local educational agency and the parents
otherwise agree, the child shall remain in the then-current
educational placement of such child, or, if applying for initial
admission to a public school, shall, with the consent of the
parents, be placed in the public school program until all such
proceedings have been completed.
(k) Placement in alternative educational setting
(1) Authority of school personnel
(A) School personnel under this section may order a change in
the placement of a child with a disability -
(i) to an appropriate interim alternative educational
setting, another setting, or suspension, for not more than 10
school days (to the extent such alternatives would be applied
to children without disabilities); and
(ii) 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 days if -
(I) the child carries or possesses a weapon to or at
school, on school premises, or to or at a school function
under the jurisdiction of a State or a local educational
agency; or
(II) 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 under the jurisdiction of a State
or local educational agency.
(B) Either before or not later than 10 days after taking a
disciplinary action described in subparagraph (A) -
(i) if the local educational agency did not conduct a
functional behavioral assessment and implement a behavioral
intervention plan for such child before the behavior that
resulted in the suspension described in subparagraph (A), the
agency shall convene an IEP meeting to develop an assessment
plan to address that behavior; or
(ii) if the child already has a behavioral intervention plan,
the IEP Team shall review the plan and modify it, as necessary,
to address the behavior.
(2) Authority of hearing officer
A hearing officer under this section may order a change in the
placement of a child with a disability to an appropriate interim
alternative educational setting for not more than 45 days if the
hearing officer -
(A) determines that the public agency 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;
(B) considers the appropriateness of the child's current
placement;
(C) considers whether the public agency has made reasonable
efforts to minimize the risk of harm in the child's current
placement, including the use of supplementary aids and
services; and
(D) determines that the interim alternative educational
setting meets the requirements of paragraph (3)(B).
(3) Determination of setting
(A) In general
The alternative educational setting described in paragraph
(1)(A)(ii) shall be determined by the IEP Team.
(B) Additional requirements
Any interim alternative educational setting in which a child
is placed under paragraph (1) or (2) shall -
(i) be selected so as to 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
(ii) include services and modifications designed to address
the behavior described in paragraph (1) or paragraph (2) so
that it does not recur.
(4) Manifestation determination review
(A) In general
If a disciplinary action is contemplated as described in
paragraph (1) or paragraph (2) for a behavior of a child with a
disability described in either of those paragraphs, or if a
disciplinary action involving a change of placement for more
than 10 days is contemplated for a child with a disability who
has engaged in other behavior that violated any rule or code of
conduct of the local educational agency that applies to all
children -
(i) not later than the date on which the decision to take
that action is made, the parents shall be notified of that
decision and of all procedural safeguards accorded under this
section; and
(ii) immediately, if possible, but in no case later than 10
school days after the date on which the decision to take that
action is made, a review shall be conducted of the
relationship between the child's disability and the behavior
subject to the disciplinary action.
(B) Individuals to carry out review
A review described in subparagraph (A) shall be conducted by
the IEP Team and other qualified personnel.
(C) Conduct of review
In carrying out a review described in subparagraph (A), the
IEP Team may determine that the behavior of the child was not a
manifestation of such child's disability only if the IEP Team -
(i) first considers, in terms of the behavior subject to
disciplinary action, all relevant information, including -
(I) evaluation and diagnostic results, including such
results or other relevant information supplied by the
parents of the child;
(II) observations of the child; and
(III) the child's IEP and placement; and
(ii) then determines that -
(I) 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;
(II) 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
(III) the child's disability did not impair the ability
of the child to control the behavior subject to
disciplinary action.
(5) Determination that behavior was not manifestation of
disability
(A) In general
If the result of the review described in paragraph (4) is a
determination, consistent with paragraph (4)(C), 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 as provided in section
1412(a)(1) of this title.
(B) Additional requirement
If the public agency initiates disciplinary procedures
applicable to all children, the agency 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 the
disciplinary action.
(6) Parent appeal
(A) In general
(i) 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, the parent
may request a hearing.
(ii) The State or local educational agency shall arrange for
an expedited hearing in any case described in this subsection
when requested by a parent.
(B) Review of decision
(i) In reviewing a decision with respect to the manifestation
determination, the hearing officer shall determine whether the
public agency has demonstrated that the child's behavior was
not a manifestation of such child's disability consistent with
the requirements of paragraph (4)(C).
(ii) In reviewing a decision under paragraph (1)(A)(ii) to
place the child in an interim alternative educational setting,
the hearing officer shall apply the standards set out in
paragraph (2).
(7) Placement during appeals
(A) In general
When a parent requests a hearing regarding a disciplinary
action described in paragraph (1)(A)(ii) or paragraph (2) to
challenge the interim alternative educational setting or the
manifestation determination, the child shall remain in the
interim alternative educational setting pending the decision of
the hearing officer or until the expiration of the time period
provided for in paragraph (1)(A)(ii) or paragraph (2),
whichever occurs first, unless the parent and the State or
local educational agency agree otherwise.
(B) Current placement
If a child is placed in an interim alternative educational
setting pursuant to paragraph (1)(A)(ii) or paragraph (2) and
school personnel propose to change the child's placement after
expiration of the interim alternative placement, during the
pendency of any proceeding to challenge the proposed change in
placement, the child shall remain in the current placement (the
child's placement prior to the interim alternative educational
setting), except as provided in subparagraph (C).
(C) Expedited hearing
(i) If school personnel maintain that it is dangerous for the
child to be in the current placement (placement prior to
removal to the interim alternative education setting) during
the pendency of the due process proceedings, the local
educational agency may request an expedited hearing.
(ii) In determining whether the child may be placed in the
alternative educational setting or in another appropriate
placement ordered by the hearing officer, the hearing officer
shall apply the standards set out in paragraph (2).
(8) Protections for children not yet eligible for special
education and related services
(A) In general
A child who has not been determined to be eligible for
special education and related services under this subchapter
and who has engaged in behavior that violated any rule or code
of conduct of the local educational agency, including any
behavior described in paragraph (1), may assert any of the
protections provided for in this subchapter if the local
educational agency had knowledge (as determined in accordance
with this paragraph) that the child was a child with a
disability before the behavior that precipitated the
disciplinary action occurred.
(B) Basis of knowledge
A local educational agency shall be deemed to have knowledge
that a child is a child with a disability if -
(i) the parent of the child has expressed concern in
writing (unless the parent is illiterate or has a disability
that prevents compliance with the requirements contained in
this clause) to personnel of the appropriate educational
agency that the child is in need of special education and
related services;
(ii) the behavior or performance of the child demonstrates
the need for such services;
(iii) the parent of the child has requested an evaluation
of the child pursuant to section 1414 of this title; or
(iv) the teacher of the child, or other personnel of the
local educational agency, has expressed concern about the
behavior or performance of the child to the director of
special education of such agency or to other personnel of the
agency.
(C) Conditions that apply if no basis of knowledge
(i) In general
If a local educational agency does not have knowledge that
a child is a child with a disability (in accordance with
subparagraph (B)) 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 engaged in comparable behaviors consistent
with clause (ii).
(ii) Limitations
If a request is made for an evaluation of a child during
the time period in which the child is subjected to
disciplinary measures under paragraph (1) or (2), the
evaluation shall be conducted in an expedited manner. If the
child is determined to be a child with a disability, taking
into consideration information from the evaluation conducted
by the agency and information provided by the parents, the
agency shall provide special education and related services
in accordance with the provisions of this subchapter, except
that, pending the results of the evaluation, the child shall
remain in the educational placement determined by school
authorities.
(9) Referral to and action by law enforcement and judicial
authorities
(A) Nothing in this subchapter shall be construed to prohibit
an agency from reporting a crime committed by a child with a
disability to appropriate authorities or to prevent State law
enforcement and 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.
(B) An agency 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.
(10) Definitions
For purposes of this subsection, the following definitions
apply:
(A) Controlled substance
The term "controlled substance" means a drug or other
substance identified under schedules I, II, III, IV, or V in
section 202(c) of the Controlled Substances Act (21 U.S.C.
812(c)).
(B) Illegal drug
The term "illegal drug" -
(i) means a controlled substance; but
(ii) does not include such a substance that is legally
possessed or used under the supervision of a licensed
health-care professional or that is legally possessed or used
under any other authority under that Act [21 U.S.C. 801 et
seq.] or under any other provision of Federal law.
(C) Substantial evidence
The term "substantial evidence" means beyond a preponderance
of the evidence.
(D) Weapon
The term "weapon" has the meaning given the term "dangerous
weapon" under paragraph (2) of the first subsection (g) of
section 930 of title 18.
(l) Rule of construction
Nothing in this chapter shall be construed to restrict or limit
the rights, procedures, and remedies available under the
Constitution, the Americans with Disabilities Act of 1990 [42
U.S.C. 12101 et seq.], title V of the Rehabilitation Act of 1973
[29 U.S.C. 790 et seq.], or other Federal laws protecting the
rights of children with disabilities, except that before the filing
of a civil action under such laws seeking relief that is also
available under this subchapter, the procedures under subsections
(f) and (g) of this section shall be exhausted to the same extent
as would be required had the action been brought under this
subchapter.
(m) Transfer of parental rights at age of majority
(1) In general
A State that receives amounts from a grant under this
subchapter may provide that, when a child with a disability
reaches the age of majority under State law (except for a child
with a disability who has been determined to be incompetent under
State law) -
(A) the public agency shall provide any notice required by
this section to both the individual and the parents;
(B) all other rights accorded to parents under this
subchapter transfer to the child;
(C) the agency shall notify the individual and the parents of
the transfer of rights; and
(D) all rights accorded to parents under this subchapter
transfer to children who are incarcerated in an adult or
juvenile Federal, State, or local correctional institution.
(2) Special rule
If, under State law, a child with a disability who has reached
the age of majority under State law, who has not been determined
to be incompetent, but who is determined not to have the ability
to provide informed consent with respect to the educational
program of the child, the State shall establish procedures for
appointing the parent of the child, or if the parent is not
available, another appropriate individual, to represent the
educational interests of the child throughout the period of
eligibility of the child under this subchapter.
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