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Explanation of Procedural Safeguards
Available to Parents/Guardians of Students with Disabilities

This statement of parent rights was developed by the United States Department of Education, Office of Special Education Programs, and modified by the Illinois State Board of Education (ISBE) to comply with Illinois rules.

As the parent of a student who is receiving or may be eligible to receive special education and related services, you have rights which are safeguarded by state and federal law. The rights to which you are entitled are listed below. A full explanation of these rights is available from your child's school district. Please review this document carefully and contact the district if you have questions or need additional clarification regarding your child's services or the procedural safeguards available to you.

This statement must be provided to you, at a minimum, upon initial referral for evaluation, upon each notification of an IEP meeting, upon reevaluation of your child, and upon request of a due process hearing.

Prior Notice to Parents

The local district is required to provide the parent of a student with a disability with prior written notice:

When the district proposes to initiate or change the identification, evaluation, or educational placement of a student or the provision of a free, appropriate public education to a student; or
When the district refuses to initiate or change the identification, evaluation, or educational placement of a student or the provision of a free, appropriate public education to a student; or
One year prior to the student reaching the age of majority at 18 years of age. (All educational rights transfer from the parent(s)/guardian(s) to the student unless the court has determined that the student is incompetent.)

The written notice must be provided at least 10 days prior to the proposed or refused action and must include:

A description of the action proposed or refused by the district, an explanation of why the district proposes or refuses to take the action, and 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 the proposed or refused action;
A description of any other factors which are relevant to the district's proposal or refusal;
A statement that the parent of a student with a disability has due process rights and, if the notice is not an initial referral for evaluation, the means by which a copy of the description of procedural safeguards can be obtained; and
Sources for the parent to contact to obtain assistance in understanding his/her due process rights.

The notice must be written in language understandable to the general public and provided in the native language 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 ISBE or local district shall take steps to ensure that the notice is translated orally or by other means to the parent in his/her native language or other mode of communication, that the parent understands the content of the notice, and that there is written evidence that these requirements have been met.

Parent Consent

The local district must obtain parent consent using state-mandated forms before conducting any evaluation and prior to the initial placement of a student with a disability in special education. Other consents which are not part of these mandated forms include parent/guardian consent to access insurance benefits and consent to use the IFSP in place of an IEP. Additionally, a local school district may not require parent/guardian consent as a condition of any benefit tot he parent/guardian or the child except for the services or activity for which consent is required.

If a parent refuses consent for evaluation or initial placement in special education, the district may continue to pursue having an evaluation conducted using mediation and/or due process hearing procedures. If the hearing officer upholds the district, the district may evaluate or initially provide special education and related services to the student without parent consent, subject to the parent's right to appeal the decision and to have the student remain in his/her present educational placement pending the outcome of any administrative or judicial proceeding.

Independent Education Evaluation

The parent of a student with a disability has the right to obtain an independent educational evaluation of the student.

A parent has the right to an independent evaluation at public expense if the parent disagrees with an evaluation obtained by the local district. However, the district may initiate a due process hearing to demonstrate that its evaluation is appropriate. If the final decision is that the 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 private expense, 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 student and may be presented as evidence at a due process hearing regarding the student.

If a hearing officer requests an independent educational evaluation as part of a hearing, the cost of the evaluation must be at public expense.

A district must provide to a parent, upon request, information about where an independent educational evaluation may be obtained.

Whenever an independent 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, must be the same as the criteria which the district uses when it initiates and evaluation.

Unilateral Placement by Parent of Student in a Nonpublic School or Facility

A local district is not required to pay for the cost of education, including special education and related services, of a student with a disability at a nonpublic school or facility if the district made a free, appropriate public education available to the student and the parents instead elected to place the student in the nonpublic school or facility.

If the parent of a student with a disability who previously received special education and related services enrolls the student in a nonpublic elementary or secondary school without consent or referral by the local district, a court or hearing officer may require the district to reimburse the parent for the cost of that enrollment if it is found that the district did not make a free, appropriate public education available to the student in a timely manner prior to that enrollment.

The cost of reimbursement may be reduced or denied:

If at the most recent IEP meeting that the parent attended prior to the removal of the student from the public school, the parent did not inform the IEP Team that he/she was rejecting the placement proposed by the district to provide a free, appropriate public education tot he student including stating his/her concerns and intent to enroll the student in a nonpublic school or facility at public expense;
If 10 business days (including any holidays that occur on a business day) prior to the removal of the student from the public school, the parent did not give notice to the district of the information mentioned above;
If prior to the parent's removal of the student from the public school, the school district informed the parent of its intent to evaluate the student but the parent did not make the student available for such evaluation; or
Upon a judicial finding of unreasonableness with respect to actions taken by the parent.

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;
Compliance with the notice requirements would likely result in physical or serious emotional harm to the student;
The school prevented the parents from providing such notice; or
The parent was not made aware of the notice requirement mentioned above.

Placement in an Interim Alternative Educational Setting
Authority of School Personnel

School personnel may take disciplinary action by changing the placement of a student with a disability:

To an appropriate interim alternative educational setting, another educational setting, or suspension for not more than 10 consecutive school days or for removals that constitute a pattern (to the extent such alternatives would be applied to students without disabilities); and
If the student carries a weapon to school or to a school function, or the student knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or at a school function, to an appropriate interim alternative educational setting for the same amount of time that a student without a disability would be subject to discipline, but for not more than 45 days.

Either before or not later than 10 days after first removing a child for more than 10 days in a school year or a disciplinary action requiring change-of-placement for more than 10 days:

The IEP Team shall review any behavioral intervention plan previously developed for the student and modify it, as necessary, to address the behavior; or
An IEP meeting shall be convened to develop an assessment plan to address that behavior if a functional behavioral assessment has not been conducted and a behavioral intervention plan has not been implemented for the student.

Authority of Hearing Officer

A hearing officer may order a change in placement of a student with a disability to an appropriate interim alternative educational setting for not more than 45 days if he/she

Determines that the local district has demonstrated by substantial evidence (i.e., beyond a preponderance) that maintaining the student's current placement is substantially likely to result in injury to the student or to others;
Considers the appropriateness of the student's current placement;
Considers whether the local district has made reasonable efforts, including the use of supplementary aides and services, to minimize the risk of harm in the student's current placement; and
Determines that the interim alternative educational setting:

Enables the student to continue to participate, though in another setting, in the general curriculum and to continue to receive those services and modifications, including those described in the student's current IEP, that will enable the student to meet the goals set out in that IEP; and
Includes services and modifications designed to address the behavior which resulted in the disciplinary action so that it does not occur again.

Manifestation Determination Review (MDR)

If disciplinary action described above is contemplated by school personnel or a hearing officer, or if disciplinary action involving a change of placment for more than 10 consecutive days or for removals that constitute a pattern is contemplated for a student with a disability who has engaged in behavior that violated any local district rule or code of conduct that applies to all students, then:

The parents must be notified of that decision and all pertinent procedural safeguards not later than the date on which the decision to take that action is made; and
Immediately, if possible, but in no case later than 10 school days after the date on which the decision is made, a review must be conducted of the relationship between the student's disability and the behavior which resulted in disciplinary action.

The review of the relationship between the student's disability and behavior is to be conducted by the IEP Team and other qualified personnel. To determine that the student's behavior was not related to his/her disability, the IEP Team must:

First consider all information that may be relevant to the behavior that resulted in the disciplinary action, including:

Evaluation and diagnostic results, to include relevant information supplied by the student's parent;
Observations of the student;
The student's IEP and placement; and

Determine that

With regard to the behavior that resulted in the disciplinary action, the student's IEP and placement were appropriate and the special education services, supplementary aides and services, and behavior intervention strategies were provided in a manner consistent with the student's IEP and placement; and
The student's disability did not impair his/her ability to control, and to understand the impact and consequences of the behavior that resulted in the disciplinary action.

Determination that Behavior was not a Manifestation of Disability

If it is determined that the behavior of the student was not related to his/her disability, pertinent disciplinary procedures may be applied in the same manner they would be for students without disabilities -- except that students with disabilities must continue to receive a free appropriate public education if removed for more than 10 school days in that school year.

If the local district initiates pertinent disciplinary procedures that apply to all students, the district must ensure that special education and disciplinary records of the student with a disability whose behavior resulted in the disciplinary action are transmitted for consideration by the person(s) making the final determination about the action.

Parent/Guardian Appeal

If the student's parent/guardian disagrees with a determination that the student's behavior was not related to his/her disability or with any decision regarding placement, the parent may request a due process hearing. The local district or ISBE must arrange for an expedited hearing when requested in writing by a parent.

For a hearing regarding relatedness of behavior to disability, the hearing officer must determine whether the local district has demonstrated according to requirements specified in law that the student's behavior was not related to his/her disability.

For a hearing regarding a decision to place a student in an interim alternative educational setting, the hearing officer must apply the standards specified in law to order a change in placement of a student to such a setting.

Placement During Appeal

When a parent requests a due process hearing to challenge relatedness of behavior to disability determination or a placement decision, the student will remain in the interim alternative educational setting pending the decision of the hearing officer or for not more than 45 days, whichever occurs first -- unless the parent and the local district agree otherwise.

If, while a student is placed in an interim alternative educational setting, school personnel propose to change the student's current placement (i.e., the placement prior to the interim alternative placement) after the time period for the interim alternative placement expires, the student will remain in the current placement during any pending proceeding to challenge the proposed change.

However, if school personnel maintain that it is dangerous for the student to be in the current placement defined above during pending due process proceedings, the local district may request an expedited hearing. To determine whether the student may be placed in the interim alternative educational setting or in another appropriate educational placement ordered by the hearing officer, the hearing officer must apply the standards specified in law.

Protections for Students not yet Eligible for Special Education
and Related Services

If, prior to a student engaging in behavior that violated any local district rule or code of conduct and resulted in disciplinary action, the local district had knowledge that the student was a student with a disability who has not been determined eligible to receive special education and related services, the student may claim protections afforded students who have been determined eligible.

A local district has knowledge that a student is a student with a disability if:

The student's parent has expressed concern in writing prior to the incident (unless the parent is illiterate or otherwise unable to comply) to appropriate school personnel that the student is in need of special education and related services;
The student's behavior or performance demonstrates the need for such services;
The student's parent has requested a case study evaluation of the student; or
The student's teacher or other school personnel has expressed concern about the student's behavior or performance to the designated director of special education or other local district personnel.

If, prior to taking disciplinary action against a student, the local district had no knowledge that the student was a student with a disability, the student may be subjected to the same disciplinary procedures as those applied to students without disabilities who engaged in comparable behaviors.

A case study evaluation requested during the time period in which the student is subjected to disciplinary procedures must be conducted in an expedited manner. However, the student must remain in the educational placement determined by school authorities pending results of the case study evaluation. If the student is determined to be a student with a disability based on the case study evaluation, the local district must provide appropriate special education and related services.

Referral to and Action by Law Enforcement and Judicial Authorities

Local districts or other agencies are not prohibited from reporting a crime committed by a student with a disability to appropriate authorities. In addition, state law enforcement and judicial authorities are not prevented from exercising their responsibilities regarding the application of federal and state law to crimes committed by a student with a disability.

Local districts or other agencies reporting a crime committed by a student with a disability must ensure that copies of the special education and disciplinary records of the student are transmitted to the appropriate authorities for their consideration.

Complaint Resolution and Mediation

Complaints with respect to any matter relating to the identification, evaluation, or educational placement of a student or the provision of a free, appropriate public education to a student should be referred to the local district.

Such complaints may also be referred in writing to the Division of Program Compliance, ISBE, for review, investigation and action within 60 days.

The parent or attorney representing the student must include the following information in a written complaint:

Name and address of the student;
Name of school attended; and
Description of the nature of the problem.

Illinois mediation service, designed as an alternative to the due process hearing, is a means of resolving disagreements regarding the appropriateness of special education and related services. Illinois State Board of Education provides this service upon request and agreement of the parties. Mediation can be requested with or without the request of a due process. The Illinois state Board of Education reserves the right to deny any request that may not be impacted by mediation if that request is not attached to a due process hearing. Mediation cannot be used to delay or deny a due process hearing.

In mediation, neither party is asked to abandon basic beliefs about the student's ability. The parties are asked to consider alternatives which could be included in the student's program, to listen to the concerns and problems expressed by the other party, and to be realistic about the student's capabilities and the local district's obligation and resources.

The mediator is an impartial third party and has no authority to force any action by either party. Mediation participants must include persons who have the authority to act on behalf of the student and of the local district.

Explanation of Procedural Safeguards Available to Parents/Guardians of Students with Disabilities