8) The Grievance Process and Your Procedural Safeguards

September 13, 2019 posted by

Under the Individuals with
Disabilities Education Act of 2004 and Maryland
special education statutes and regulations, children with
disabilities and their parents are guaranteed procedural
safeguards with respect to a free, appropriate public
education provided by Anne Arundel County Public Schools. In Maryland, these
safeguards are described in the booklet
titled Procedural Safeguards– Parental Rights. Who can be considered a parent? A parent is defined
under IDEA regulations as the biological
or adoptive parents of the child, a foster
parent, unless prohibited by state regulations,
a guardian authorized to act as the child’s parent or
to make educational decisions for the child. Please note– a
guardian can never be a state official such as a
Department of Social Services case manager. An individual
acting in the place of a biological or
adoptive parent, including a grandparent
or other relative with whom the child
lives, or an individual who is legally responsible
for the child’s welfare. If there is no one who meets
the definition of a parent, AACPS will appoint a surrogate
parent for the child. AACPS provide training
for adults wishing to act as surrogate parents. Can the school system provide
special education services without my consent? Parental consent is required
in order for the school system to conduct assessments and
to initiate special education services. Parental consent is not required
to implement IEPs developed after the initial IEP. Parents have the right
to withdraw consent for special education services. However, parents should consider
very carefully whether or not this is in the best
interest of their child. As long as a child is receiving
special education services through the school
system, a parent may access their
procedural safeguards to resolve a dispute regarding
disagreements over services or placement, or
what constitutes a free and
appropriate education. Once a parent withdraws
consent for services, their child is no
longer entitled to those safeguards,
including, but not limited to, disciplinary protections,
the provision of a free and appropriate
education, or any supports above what is
provided for students who are not eligible for
special education services. Additionally, if parents
want to reinstate services if their child is
having difficulty, the process is started again
from the very beginning, with an IEP-A. Therefore, the
decision to reinstate services does not occur immediately. Can the school system change the
services provided to my child without letting me know? AACPS must provide the
parent with a written notice before they begin and/or change
any special education services provided for their child. In Maryland, the
IEP document itself can be considered
prior written notice. If parents make a request
regarding their child’s services that the school-based
members of the IEP team disagree with,
the parent must be provided with a
written notice that includes the basis
for the disagreement, evaluative information on
which the decision is based, and other options that have
been considered and rejected prior to the beginning
or change in the service. What if I disagree with a
school system’s assessment? If a parent disagrees with
an assessment conducted by the school system,
the parent may request an independent
educational evaluation, or IEE, in writing or at an
IEP team meeting. The school system
could either agree to fund an independent
evaluation at no cost to the parent, or initiate
a due process hearing to determine if their original
assessment was appropriate. If the due process judge
decides that the evaluation was appropriate, parents still
have the right to an IEE, but not at public expense. Parents always have the right
to have their child evaluated by a qualified professional
of their choice at their own expense. And the IEP team must
consider the information from that evaluation when making
any decisions with respect to the education to the child. Keep in mind that AACPS
has specific criteria that must be met when we
agree to fund an IEE. For more information, contact
the school system’s Compliance and Legal Issues Office. Can my child be
removed from school for disciplinary problems? A child with a disability who
violates the code of conduct may be removed from school for
not more than 10 school days in each school
year in accordance with the discipline policies
used for all children. Specific procedural safeguards
applicable only to students receiving special
education services must be in place after 10
days of disciplinary removal. What if the behavioral
problem was a result of my child’s disability? Once a child receiving
special education services is removed from school for
more than 10 cumulative days or recommended for a
long-term suspension, a meeting is held to
determine if the behavior was a manifestation of the
child’s disability. At this meeting, the team
will consider two questions. Was there direct and
substantial connection between the incident and
your child’s disability? Was there direct and
substantial connection between the incident and the
lack of implementation, if any, of your child’s IEP? If the answer to either
of these questions is yes, your child will return to school
and the disciplinary removal will be over. If the answer to both
of the questions is no, your child’s disciplinary
removal may continue, and the IEP team will
determine appropriate services. If a student with a
disability is recommended for a long-term
suspension or has more than 10 cumulative days of
suspension in one school year, the IEP team must determine
appropriate services that enable to
student to progress in the general curriculum
and progress on their goals. As with all students,
decisions regarding services during a
disciplinary removal are based on the student’s
individual needs. What if my child was
not yet determined to be eligible for special
education services? A child has the same
rights as a child receiving special education services if,
before the behavior resulting in the disciplinary
action occurred, the parents express concern in
writing that their child needs special education
and related services to supervisory or
administrative personnel, or to one of the
child’s teachers, the parents requested
an evaluation, or the child’s teacher
or other school personnel have expressed specific concern
about a pattern of behavior demonstrated by
the child directly to the Director of
Special Education or other supervisory personnel. These rights would
not be available if the parents refuse to allow
AACPS to evaluate their child, the parents refused
to allow AACPS to provide special
education services, or the child has been
evaluated, and it was determined that he
or she was not a child with a disability under IDEA. Can I decide to place my
child in a non-public school? A parent always has the
right to do what they think is best for their child. However, if parents choose
to place their child in a non-public school
without the agreement of the public
school system, they do so at their own
risk and expense. If the IEP team did not
agree on the placement, parents have the right to access
their procedural safeguards in order to resolve the dispute. What is a facilitated
IEP team meeting? A facilitated IEP
meeting is conducted by a highly-trained volunteer
from the Anne Arundel Conflict Resolution Center. The facilitator will keep
the discussion focused on the desired outcome,
and will remain neutral throughout the process. The goal of the
facilitated IEP meeting is to help team members
communicate effectively and work towards developing
an educational program to meet your child’s needs. Facilitated meetings are
particularly helpful when a parent or team is expecting
the discussion at a meeting to be challenging, but may
be helpful at any time. Do educational decision-making
rights transfer to my child when he or she
reaches the age of 18? In Maryland, parental
rights do not transfer to children
with disabilities on reaching the age of majority. They may, however, transfer
under limited circumstances if there’s documentation that
the parents are unavailable or unknown, and the student
requests that the rights be transferred directly to
them, the parents have not participated in the special
education decision-making process after repeated attempts,
the parents have rejected participation, the parents
cannot participate due to hospitalization,
institutionalization, serious illness or infirmity,
and the parents have consented to the transfer of rights, the
parents cannot participate due to extraordinary circumstances,
and have consented to the transfer of rights,
the child is living outside of the parents’ home, and is
not in the care or custody of another agency. If the parent with
whom the child resides does not consent to
the transfer of rights, either party may file
a due process complaint to determine whether rights
should be transferred. What if I disagree with a
decision made by the school system? A parent has three
methods of resolving a dispute– mediation, a
due process hearing, a state complaint. Mediation is a
non-adversarial process where the parents
and school system attempt to reach consensus on
what will resolve the dispute. Both parties are expected to
make some concessions in order to reach an agreement. The Office of
Administrative Hearings, an independent state
agency, provides a mediator to facilitate the process. Mediation agreements are
binding and enforceable in court if either party
violates the agreement. A due process hearing is
a more formal procedure. There’s evidence,
testimony, and the rendering of a decision from an
administrative law judge. AACPS will have an attorney
present at a due process hearing. When a parent requests
a due process hearing, a resolution session will
be held within 15 days. During the resolution
session, the parties can gain a better
understanding of the concerns and attempt to
resolve the complaint. There is no judge at
a resolution session, and AACPS will not have
an attorney present unless the parents are
accompanied by an attorney. If the parties failed to
reach an agreement 30 days from the date of
the hearing request, the due process timeline begins. The administrative law
judge will make a decision within 45 days. The time limit for
filing for due process is two years from
when the party knew or should have known
about the problem, with limited exceptions. Parents who feel that the
school system violated the procedural
requirements of the IDEA may file a complaint with
the Maryland State Department of Education, or MSDE. The MSDE will conduct
an investigation and determine compliance with
state and federal regulations. If the school system is
found to be in violation, they will be
required to complete student-specific corrections,
school-wide corrections, or system corrections, depending
on the level of the violation. MSDE must resolve the
issue within 60 days from receipt of the
complaint, unless an extension is permitted. The time limit for
filing a state complaint is one year from the date
of the alleged violation. What if I feel my child has
been discriminated against? If a parent alleges that their
child has been discriminated against based on their
disability as a result of school practice or policy,
the parents or the school system may elect to engage
in voluntary resolution, for which there is
no investigation or finding of a violation. Either party may suggest
a course of action that will resolve the
dispute voluntarily. The Office of Civil
Rights, or OCR, may conduct an investigation. There may be a
finding that there was no discriminatory
policy or practice, or the school system may be
ordered to make corrections. The Office of Civil Rights
also offers early complaint resolution– a mediation
that resolves the case to both parties’ satisfaction. As with the
voluntary resolution, there is no investigation
or finding of a violation. This overview
provides a snapshot of the information in the
Procedural Safeguards– Parental Rights booklet. For more specific details
about your rights as a parent, see the Procedural Safeguards–
Parental Rights Handbook, available online or
from your school, or contact the school system’s
Legal Compliance Office. For more information, refer to
the Anne Arundel County Public Schools Special
Education eHandbook and the Maryland Procedural
Handbook– Parents’ Rights Handbook.

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