PARENT
AND CHILD RIGHTS IN SPECIAL EDUCATION
Revised Interim Procedural Safeguards Notice
The information presented below is published by the New
Mexico Public Education Department (http://www.sde.state.nm.us/)
as a service to parents of children involved in the Special
Education process at any stage. It was updated in July
2005 to reflect the latest changes to the IDEA legislation.
To view the information, just click on a topic heading
to toggle it open or closed. You can also view
the complete document in PDF form here.
- What Is Special About Special Education?
- Special education is instruction designed specifically
to meet the unique needs of children with exceptionalities—those
who have one or more disabilities as defined by federal
law, or in the state of New Mexico, who are determined
to be gifted. It is important to note that not all students
who have a disability or who are struggling qualify
for special education. To be eligible for special education
or related services, the child must meet two requirements.
First, he or she must be found to have a qualifying
exceptionality. In addition, the nature of the exceptionality
must be such that it directly affects his or her opportunity
or ability to learn and progress in the educational
program or environment provided for the general student
population. Special education and related services are
designed to help a child to learn the information and
skills that other children are learning.
- What Are Procedural Safeguards?
- Procedural safeguards are procedures that are designed
to protect, or safeguard, legal rights. You as a parent
or guardian play a vital role in your child’s education.
A federal law called the Individuals with Disabilities
Education Act, or IDEA, ensures that all children with
qualifying disabilities have the opportunity to receive
publicly funded special education and/or related services.
The law also requires that parents be informed of, and
included in, the educational decisions made regarding
the child’s educational needs. Under the IDEA, the child’s
and the parents’ rights are spelled out and safeguarded.
One of the requirements of the IDEA is to provide you
with this document. It is designed to inform you of
the policies set by federal and state regulations that
apply to everyone responsible for the education and
welfare of a child—schools and other public education
agencies, teachers, service providers, and you, the
family. All of these share the common goal of providing
the child with his or her right to a free appropriate
public education (FAPE) and “to leave no child behind.”
Note: This “interim revised” version
of the Procedural Safeguards Notice reflects key changes
under the new IDEA 2004. A final version of this notice
will be made available after final federal IDEA regulations
are issued. Also: The term school is
used to describe any public education agency responsible
for providing special education or related services.
- Who Speaks for Children Under the IDEA?
- With a rare exception for some children who are in
prison, the IDEA requires that every child who is below
the legal age of adulthood (18 in New Mexico) must have
some adult available to make educational decisions and
protect the child’s legal rights. Usually that person
is a natural or adoptive parent. If no parent is available,
the adult decision-maker may be any of the following:
• a person acting in the place of a parent, such as
a grandparent, stepparent, or other relative that the
child lives with;
• a legal guardian (but not the state if the child is
in state custody);
• a foster parent who has an ongoing, long-term personal
relationship with the child; or
• if none of the above is available, a surrogate parent
who is appointed by the school to make educational decisions
and protect the child’s educational rights.
All of the above are included in the IDEA’s broad definition
of a “parent.” In New Mexico, children become legal
adults at age 18. Under the IDEA they are then entitled
to make their own educational decisions and protect
their own rights unless the courts have declared them
incompetent and appointed guardians for them. Unless
this is done before the child’s 18th birthday, the child
will automatically have all rights and responsibilities
of adulthood when he or she reaches the age of 18. The
school will inform you of the laws and options regarding
transfer of rights before the child turns 18 years old.
Note: In the rest of this document,
for simplicity, the terms parent or you are used to
include any of the above kinds of decision-makers for
a child or a student who is 18 or older and has not
graduated from high school.
- An Overview of the Special Education Process
- Every child is special because he or she is a unique
individual. In the United States, we provide a free,
public education to every child. Schools provide a general
curriculum designed to meet the needs of most children
and prepare them to function independently as adults
and participate in their community. Special education
services are provided to those students who, because
of exceptionalities, need additional support in order
to be able to learn and attain these same goals. Additionally,
it is the goal of special education to provide services
and supports to students in the least restrictive environment
(LRE) along side students without disabilities.
Decisions about a child’s program and/or placement are
not made lightly or easily. It takes a team of people
using their combined knowledge and expertise to make
decisions that are in the best interest of the child.
A specific process is followed and you, the parent,
are an essential part of the team. The child is also
included whenever possible, and must be invited to participate
if he or she is 14 or older. The IDEA requires that
any child under the age of 18 have an adult responsible
for protecting his or her rights and available for participating
in the educational decisions about the child. Depending
on the circumstances, this may be the natural parent,
an adoptive parent, a relative acting in place of a
parent, a legal guardian, a foster parent, or a surrogate
parent. In order to better understand your role and
your rights in the decisions made about your child,
it may be helpful to first take a look at how the special
education process works in general. Then refer back
to this page later as needed when reading about your
rights.
Step 1: The child is referred for consideration
of possible need for special education and/or related
services. Referrals can come from the school or parents.
Local school districts must provide screening and appropriate
interventions through a Student Assistance Team (SAT)
child study process before referring a child for a full
special education evaluation, unless a student has an
obvious disability or a serious and urgent problem.
Step 2: The child is evaluated. This
may involve formal testing, observations, or even outside
specialists. Written parental consent must be given
before an initial evaluation or a reevaluation.
Step 3: Based on all the information
gathered, a group of qualified professionals and the
parent decide whether the student is eligible for special
education or related services. A student may be found
to be eligible because he or she has a defined exceptionality
that directly affects learning, or found to be ineligible
because either the exceptionality does not directly
affect learning, or there is no concrete evidence that
an exceptionality exists.
Step 4: If the child is found eligible,
a team is assembled and a meeting held to develop an
Individualized Education Program (IEP). The IEP is the
master plan for the child’s special education and any
related services, such as speech therapy or physical
therapy, that the child needs to benefit from instruction.
Parents must be invited to the meeting and to participate
as members of the team.
Step 5: Parent consent is required
before beginning any special education or related services.
Once developed, the IEP is implemented.
Step 6: The IEP must be formally reviewed
at least once a year, more often if necessary or as
requested by the school or parent.
Step 7: A child receiving services
must be reevaluated at least every three years (unless
you and the school agree that a specific reevaluation
is not necessary).
Step 8: Eligibility must be reexamined and re determined
after a reevaluation as in steps 2 and 3.
Step 9: If the child is found to still
be eligible, the team begins again at step 4. If not,
he or she exits the program. In the sections that follow,
more details will be explained regarding the rights
of the child and you, the parent, in the special education
process.
- What Is Prior Written Notice of Proposed Action?
- Prior written notice is a special kind of written
notice that the IDEA requires the school to give to
you. This notice must be provided after the IEP meeting
and before the school takes or refuses to take any action
regarding:
1) evaluating your child to identify an exceptionality
or to determine eligibility for special education and
related services, or
2) initiating and/or changing the special education
or related services provided for your child, including
IEP development or changes.
Basically, the school is required to inform you before
it can formally evaluate or reevaluate your child beyond
what is done for all students, before it identifies
or refuses to identify your child as exceptional, and
before it can change your child’s existing IEP. The
notice must include what action the school proposes
or refuses to take; the reasons for its decision; any
other options that have been considered by the team
and the reasons why those options were rejected; a description
of the information the team used to arrive at its conclusion;
a notice of procedural safeguards or information about
how to obtain one; and sources for parents to contact
to get help in understanding their IDEA rights. The
school must provide you this notice in a written notice
that is understandable and in your native language or
other mode of communication, unless it is clearly not
feasible to do so. In certain cases, the notice may
be given orally through a translator in your native
language or other mode of communication.
- What Kinds of Actions Require a Parent’s Consent?
- Whether you are a parent, guardian, or adult student,
it is important that you know and understand the information
given to you regarding what the school plans to do or
not to do, so that you can participate fully in making
decisions. The school has to obtain your informed consent
in writing before it can evaluate or reevaluate your
child for special education and before it can first
provide your child with special education or related
services. By signing your name, you are saying that
you understand, give permission, and agree with the
action for which consent is sought. It is never a good
idea to sign anything you do not fully understand. If
you need clarification or have questions, do not be
afraid to ask.
Keep in mind that you and the school may have a difference
of opinion. If you decide that you do not agree and
do not give your consent for the proposed actions as
stated, you can request an IEP meeting, mediation or
an impartial due process hearing to resolve the difference
of opinion.
- What About Records?
- Your child’s school records may be used as one source
of information about your child when determining his
or her eligibility for special education or related
services. You the parent, or someone who has your permission,
can inspect and review any and all of your child’s records
being kept by the school. You can review your child’s
records
1) before any meeting involving your child’s IEP or
2) before a due process hearing. You can request to
review the records at other times, but the school has
up to 45 days to honor your request. You can also request
a copy of the records, but the school may charge you
a reasonable fee unless the fee would prevent you from
acquiring a copy. Note that there may be certain instances
in which the school will not allow viewing of full records.
This may occur if there are names or information about
individuals other than your child in the record, or
if the school has been directed by authorities to exclude
certain people from viewing records.
You or your authorized representatives are entitled
to have the school explain anything in your child’s
records that you do not understand. If, after reviewing
the records, you feel there is incorrect information
or something that violates the privacy rights of your
child, you can ask the school to change the records.
If the school refuses, you may file a request with the
school for a formal hearing to challenge the contents
of the records. You can also ask that the records be
destroyed once they are no longer needed for educational
purposes.
The school is responsible for keeping student records
as confidential as possible. The records may be reviewed
by certain school personnel, and of course, by you,
the parent. School records may also be transferred to
another school when your child moves.
- Evaluation and Assessment
- It would not be fair for one person or even a group
to decide who is and who is not eligible for special
education or related services based solely on their
“feelings” or “impressions” of a student. Though some
subjective data is useful, such as direct observations
by parents or trained observers, there must also be
objective, measurable information about the student’s
levels of performance, strengths, and weaknesses. This
information is usually gathered by assessments, or tests.
An evaluation is combining and analyzing the various
types of information collected and drawing conclusions
based on all the types of information gathered—both
fact and opinion. The result is a more comprehensive
picture of the student’s abilities and skills.
If your child is suspected of having an exceptionality
and for possibly needing special education services,
the school will need more information in order to be
able to make that determination. Or, if your child is
already receiving special education or related services
and a review is due or requested, the school will want
to do a reevaluation. In either case, this may involve
any number of different types of assessments and/or
observations, depending upon the information the school
needs to gather about your child specifically. The school
will give you prior written notice of its intent to
evaluate or reevaluate your child and how. You will
be asked to give your consent for the evaluation and
you will receive a copy of the results.
- Evaluation “Safeguards”
- It is natural for you to be concerned about having
your child evaluated—after all, the conclusions drawn
from the evaluation are likely to determine not only
if your child has an exceptionality, but also if he
or she qualifies for special education services. These
facts may help you rest easier about the process:
• You will be informed ahead of time what tests and
other assessments will be given and used for the evaluation.
• You must give your informed written consent before
any action is taken.
• Your child will not be discriminated against racially,
culturally, or because of a disability. The evaluation
tests and procedures will be given in the language and
form most likely to yield accurate information about
what your child knows and can do academically, developmentally,
and functionally.
• When the evaluation is complete, the school will schedule
a meeting with you to discuss the results and conclusions
drawn.
• If you disagree with the evaluation and resulting
plan for your child, you have the right to request an
independent educational evaluation (IEE) at public expense.
An IEE is an evaluation done by a person who does not
work for the school district, but is a qualified evaluator.
If you request an IEE, the school is required to provide
you with information about where you can obtain one
and what criteria the school will use to decide whether
to accept the results and pay for the evaluation. However,
if the school feels that its evaluation is appropriate,
it can request a due process hearing, where a hearing
officer decides if the school’s evaluation was correct
and complete. If the hearing officer decides in the
school’s favor, you can still get an IEE at your own
expense. Any results will be considered in planning
your child’s program. The IEE can be used as evidence
in a due process hearing.
- What Is an IEP and Will My Child Have One?
- The evaluation is how the school decides if your child
has an exceptionality and if he or she qualifies for
special education and related services. If it is determined
that your child meets the criteria for special education
or related services (see page 1), the next step is to
develop an Individualized Education Program (IEP) for
him or her.
An IEP is a written statement of the educational program
designed specifically for that student to meet his or
her unique, individual needs. Every child who receives
special education services must have an IEP. The IEP
has two general purposes:
1) to set reasonable learning goals for your child,
and
2) to state the supports and services the school will
provide to help.
The IEP is developed by a team of people, each of who
has information or insight about the child that will
contribute to designing a program that is appropriate
for him or her. YOU, the parent, are invited to be part
of that team. Because you are the person who knows your
child best, your active participation and input is very
valuable.
The IEP team members will vary depending on the needs
of the child, but generally will include you (the parent),
at least one regular education teacher if the child
is likely to be participating in the general educational
program and environment, at least one special education
teacher or specialist, one or more qualified school
representatives, your child when appropriate, and anyone
else you or the school invites who may have special
expertise or knowledge about your child.
- An IEP Meeting
- An IEP team meeting is needed when there are plans
to do any of the following:
• make decisions about a child’s initial plan for special
education and related services
• change or review an existing IEP (an IEP must be reviewed
at least once a year)
• change or review the child’s program or placement
• evaluate or reevaluate a child
• whenever parents request it
As mentioned, you are a very important member of your
child’s IEP team. When scheduling a meeting, the school
will make every effort to make sure you are informed,
invited to participate, and included. You will receive
written notice of an upcoming meeting. If you want to
participate but cannot attend at that time, let the
school know and an attempt will be made to reschedule.
If you cannot attend for other reasons or do not respond,
the school will attempt to involve you in other ways
such as telephone conferences, home visits, or delivering
written information for your review. If unsuccessful
after trying in earnest to include you, the school can
have the meeting without you and mail you your child’s
IEP and the school’s Prior Written Notice of its proposed
action. The PWN is given to you so that you can review
the IEP before any program begins and give you the opportunity
to disagree with the school’s plans for your child.
- What About Discipline?
- To function as a safe learning community, schools
must have rules of conduct. Children with disabilities
may be suspended or placed in alternative settings to
the same extent that these options would be used for
children without disabilities. However, certain conditions
apply regarding students with identified disabilities
who are receiving special education and related services:
• A child with a disability may be suspended for 10
days or less during a school year according to the same
procedures that apply to all students. The school is
not required to provide any educational services during
the first 10 days of removals.
• If a child with a disability is suspended for more
than 10 days during a school year, the school must provide
services that will allow the child to continue to progress
in the general curriculum and advance toward his or
her IEP goals.
• If a child is removed from his or her IEP placement
for more than 10 consecutive days during a school year
(or when the removal otherwise represents a change of
placement), meeting must be held to determine if the
undesirable behavior is directly related to or caused
by a disability, or directly related to a failure by
the school to implement the IEP. If it is, the child
may not be suspended or expelled and the IEP team must
modify the child’s placement or services as needed.
If the behavior is not the direct result of a disability
or a failure to implement the IEP, the child may be
suspended or expelled according to normal procedures
but the school must continue to provide services that
will enable the child to progress in the general curriculum
and advance toward his or her IEP goals.
• The IEP team must also conduct a behavioral assessment
and provide behavioral support services such as a Behavioral
Intervention Plan (BIP) (or review it if already in
place) when a child has been removed for more than 10
consecutive days in the school year or when the removal
represents a change of placement. A BIP is an individualized
program that provides specific actions for redirecting
undesired behavior in a positive way. As a member of
your child’s IEP team, if a BIP is to be developed for
your son or daughter, you will be able to give your
input.
- Protecting Everyone’s Right to a Safe School
- Educators and parents share concerns over the issue
of drugs, guns, and other weapons in schools. As a result,
the IDEA has expanded the authority of school personnel
regarding the removal of children with disabilities
who bring or have drugs or weapons on school grounds
or at school functions, or who inflict serious bodily
injury on another person. For the protection of everyone’s
right to a safe school, any child may be removed to
a temporary placement immediately for up to 45 school
days for one of these violations.
The IDEA also allows a school to ask a state-appointed
due process hearing officer to move a student to a temporary
placement for up to 45 school days at a time if the
school believes that the student presents a serious
danger of injury to himself/herself or others in the
child’s current placement. The IDEA refers to these
temporary placements as interim alternative educational
settings, or IAESs. The IDEA requires that the setting
be determined by the IEP team and be designed so that
all students continue to receive all the special education
and related services that their IEP's call for. It also
requires the school, the parent, and relevant members
of the IEP team to decide whether a child’s behavior
is a direct result of either a disability or the school’s
failure to implement the IEP, and to develop appropriate
behavioral intervention services when a child is placed
in an IAES for disciplinary reasons. Also, the school
can report any student to law enforcement authorities
for the commission of a crime. If the student is a child
with exceptionalities, the school can give the authorities
copies of the student’s special education records.
- About Educational Placement
- Earlier in this guide you learned that the IDEA (federal
law) protects the rights of children with disabilities
to a Free Appropriate Public Education (FAPE). Special
education and related services are designed to do just
that. Through the IEP process, a team of knowledgeable
people (including you, the parent) decide what educational
provisions may be necessary for the child based on his
or her unique needs. The first possible route is to
adjust or modify the child’s educational program or
provide extra supports so that he or she may continue
to learn to the greatest extent possible alongside the
rest of the students in the general education program
and environment. Though it is desirable to have students
with exceptionalities working with others their own
age and in the regular school environment to the greatest
extent possible, sometimes that placement is not the
most appropriate learning environment for a particular
child. The goal is to give the student “freedom” to
learn by removing obstacles that restrict him or her.
This is called the Least Restrictive Environment (LRE)
and it may be anything from the regular education classroom
or special education classroom, to providing instruction
in the home, a hospital, or a setting outside the school
district. The decision in every case depends on the
individual needs of the child.
If the school plans a change of placement for your child,
you will be asked to attend an IEP meeting and given
the reasons why the school is proposing the change.
You always have the right to disagree with a proposed
placement and the procedures for doing so will be described
on the pages that follow. Keep in mind that a planned
placement change for the purpose of providing the most
appropriate program for a child’s learning is different
from a temporary placement in an interim alternative
educational setting (IAES) for disciplinary reasons,
as described above. An IAES is temporary. However, as
indicated under “What About Discipline?” above, certain
behaviors that the IEP team decides are the direct result
of a child’s disability may result in a plan to change
placement long-term to better serve the child.
- Resolving Differences
- As two parties with the same goal—to provide an opportunity
for success for your child—you and the school need to
openly communicate your opinions and concerns. This
cooperative approach usually results in agreement and
a smooth implementation of special education services
for the child. However, each child and circumstances
are unique and, as between any two parties, there may
be times when you and the school may not agree on what
is “best” for your child.
Under federal and state law, both the school and the
parents have the right to have their opinions heard
and considered. So, you have the right to disagree with
the school’s findings, plans, or actions regarding your
child. Also, after considering your opinions or requests,
the school has the right to disagree with you. Federal
and state laws provide several avenues for resolving
differences. As they are discussed below, keep in mind
that even in disagreement, the focus is the child’s
best interest and the outcome should be that the child
is the “winner.”
- The Avenues to Resolve Disputes…and what you
need to know about them
- If you are in disagreement with the school on any
aspect of your child’s program, you have the right to
be heard and your opinions considered. In many cases,
differences can be resolved quickly and efficiently
at the school level simply by asking for another IEP
meeting. Obviously this is preferable to everyone concerned.
Avenue 1: Working Directly With School Personnel-
A. This option is designed to resolve
a problem as soon as it arises among the people directly
involved. As the first step, you should voice your concerns
directly to school personnel responsible for your child’s
program. Ask for a new IEP meeting. In many cases, the
school will gather information about the situation from
all concerned and attempt to work with you to resolve
the problem.
B. An additional option is for you
and the school to file a joint request with the Special
Education Bureau (SEB) for a mediation that is conducted
by a state approved, state-funded, trained mediator.
A mediator is trained to be objective in helping you
and the school find a mutually agreeable solution to
your dispute. Use of this option is voluntary, will
not deny or delay any of your rights, and is intended
to result in a legally binding written agreement between
you and the school. The NMPED will provide a mediator
if you and the school jointly submit a signed, written
request to the SEB of the NMPED in which you describe
the matter(s) in dispute and any previous attempts to
resolve these matters at the local level. If you and
the school reach agreement about any IEP related matters
during mediation, it will then be necessary to hold
an IEP meeting to inform the student’s service providers
of their responsibilities under that agreement, and
revise the student’s IEP accordingly or develop an IEP
Addendum.
Avenue 2: Contacting Available Resources for
Help and Support
A. There may be times when you feel
you need more help or support. If so, there are many
resources available to guide and help you. (Several
are listed on the final page of this guide).
• You and your family can get advice and support by
contacting parent assistance and advocacy groups in
the community. Advocacy groups provide knowledgeable
people to speak with or on your behalf with regard to
ensuring that your rights are being exercised and protected.
• In addition to community support, you can get a wealth
of information and guidance by accessing state and federal
websites, which offer extensive and detailed information
for parents regarding special education.
B. You can also call the SEB of the
New Mexico Public Education Department (NMPED) and ask
to speak to the Parent Liaison. This person can answer
your questions or may be able to act as an unofficial
“go-between” by calling the school district in an informal
attempt to resolve your concerns. You may also call
or write to ask a question, or state a concern.
Avenue 3: Filing a Formal State-Level Complaint
or Request for Due Process Hearing
A. If you believe the school has violated
some provision of your child’s IEP or failed to follow
the special education procedures required by law, you
may file a formal complaint with the SEB. If you choose
to file a formal state-level complaint, be sure that
you state all the information needed for a response
and/or investigation. If you want an investigation or
a written “finding” from the state, your complaint must
be signed by you or your designated representative and
submitted in writing to the SEB, must describe your
concern and what right(s) under the law or procedure(s)
you think the school has violated, and must describe
the facts about the complaint and what steps have already
been taken to try to resolve it. It must be signed by
you or your representative. The NMPED will normally
investigate and respond within 60 days. Based on the
information gathered, the NMPED will make a finding
as to whether the law has been followed or not. If it
finds the school is not in compliance with the law,
it may direct the school to correct the action.
B. Sometimes you and the school may
not “see eye to eye” about the provisions of your child’s
IEP or his or her placement despite honest attempts
to do so. When that happens, and informal attempts to
resolve such a dispute fail, you need to consider the
option known as a due process hearing. A request for
a due process hearing is filed with the State. This
is a legal action in which a hearing officer makes a
decision based on the facts and evidence presented.
Since this is a formal proceeding, several legal requirements
apply and must be followed. Your rights and responsibilities
with regard to requesting a due process hearing are
outlined below:
• You have the right to request an impartial due process
hearing over any issue regarding the identification,
evaluation, educational placement, or provision of a
free appropriate public education of your child under
the IDEA.
• To request a hearing, you must provide the request
in writing to the district and SEB. The request must
include complete information about the child (name,
address or available contact information, and name of
school and district); a description of the problem including
known facts and any efforts you and the school have
made to resolve the problem informally before filing
this request; your proposed solution to the problem;
your name, address, and telephone number and that of
the child’s advocate or attorney, if any; a written
statement that says the advocate or attorney named may
represent your child; and your dated signature plus
the dated signature of the advocate or attorney, if
any. The request must be filed within two years of the
date that you knew or should have known about the problem.
The school will have an opportunity to respond in writing
to your request. If you need help with this, ask the
school to give you an official due process hearing request
form.
• The school may also request a due process hearing
to resolve a disagreement over the appropriateness of
its evaluation, to request authorization to conduct
an evaluation or a reevaluation when a parent refuses
consent, or to ask a hearing officer to move a child
to an interim alternative educational setting because
his or her presence in the current placement poses a
significant risk of injury to the child or others.
• As part of the due process procedure, the school will
hold a Resolution Session with you and other relevant
members of the IEP team to address the issues raised
in your request, unless you and the school agree jointly
not to do so. You will also have the option of having
a facilitated IEP meeting or a mediation at state expense
to see if the issue can be resolved without a due process
hearing. Often a dispute can be settled simply by bringing
in an impartial person trained to help the parties find
a plan that is mutually agreeable to both sides. Facilitated
IEP meetings and mediation sessions are voluntary.
- What If I am Involved in a Due Process Hearing?
- If you are involved in a due process hearing, whether
it was initiated by you or by the school, here are some
basics you should know:
• You have the right to a fair and impartial hearing
before a state-appointed hearing officer who is knowledgeable
about the laws governing special education and administrative
hearing procedures.
• The hearing will be scheduled at a time and place
that is reasonably convenient for you and the school.
• You have the right to be accompanied by an attorney
and/or other individuals who have knowledge about students
with exceptionalities.
• Upon request, the Public Education Department will
inform you of any known free or low-cost legal services.
• During the hearing, you or your attorney may present
evidence and written and oral arguments. You may require
witnesses to attend and you may also confront and cross-examine
the school’s witnesses. No more than 5 business days
before a hearing, you must share with the school all
evaluations completed by that date, and any recommendations
based on those evaluations, which you intend to use
at the hearing. The school must share the same information
with you. If you or the school fail to do this, the
hearing officer may prohibit you or the school from
using that information at the hearing.
• You may choose to have the hearing open to the public
and to have your child present at the hearing.
• At any point during the proceedings you may have a
mediation conference and/or the party requesting the
hearing may withdraw its request.
• You should expect a written decision within 45 days
of when the timeline for the hearing process began,
unless the hearing officer grants an extension.
• You should expect to receive, at no cost to you, your
choice of a written or electronic word-for-word record
of the hearing and the hearing officer’s findings and
decision.
• The decision of the hearing officer is final unless
either party files a civil action in a state or federal
district court .
• A civil action must be filed no later than 30 days
from receipt of the hearing decision.
• The findings and decisions of a hearing may be made
public.
• The costs of a hearing are paid for by the school,
with the exception of attorney’s fees, which are the
individual parties’ responsibility. In some cases, a
court may award part or all of the attorney’s fees to
you (if you are the prevailing party) or to the school
(if the school is the prevailing party). However, hearing
officers are not authorized to award attorney’s fees.
• Except for disputes over disciplinary placements and
manifestation determinations, the child remains in his
or her current placement during due process proceedings
until a final decision is reached, unless you and the
school agree otherwise or other interim placement is
directed by the hearing officer. Except in the case
of short-term suspension (up to 10 days in a school
year), the child will continue to receive special education
and related services as directed by his or her IEP.
• At the conclusion of the hearing, either party has
the right to bring a civil action in a court of law
with respect to the complaint. The laws governing jurisdiction
and procedures will apply to any action brought before
the court. If the parent prevails in the court’s decision,
the court may, at its discretion, award reasonable attorney’s
fees. This means that if the parents decide to take
the matter to court, they must pay for the lawyer’s
services, and that they may or may not get full or part
reimbursement of these expenses if they win the case.
- A Word About Private School
- Public agencies are obligated to offer a Free and
Appropriate Public Education (FAPE) to any child aged
3- 21 within their jurisdiction who meets eligibility
requirements. To do that, all children within that age
group must be located, and if necessary, evaluated to
determine eligibility for special education and related
services. This includes children attending private school,
home school, or no school at all, as well public school
children.
In most cases, a FAPE can be offered to a student in
the public school setting. However, if it is determined
by the public agency through the IEP process that a
child’s right to a FAPE is best served in a specialized
private school, then the public agency funds that child’s
special education needs in the private setting. Parents
who choose to enroll their children with disabilities
in private schools without the participation of the
public school in the decision are responsible for paying
the private school tuition and costs .Though each school
district is obligated to spend a portion of its IDEA
funds to assist students with disabilities enrolled
by their parents in private schools, these students
are not entitled to receive all the special education
and related services the child would receive if enrolled
in public school. It is up to the school to decide,
on an individual basis, how much support, if any, to
offer a student. School districts will consult with
appropriate representatives of private school students
to determine what services will be provided and where
the services will be delivered. Students with disabilities
that are parentally-placed in private schools receive
service under a “services plan,” which is different
from an individualized education program.
- Parent Resources
- NEW MEXICO PARENT ADVOCACY AND SUPPORT GROUPS
• ARC of New Mexico (505) 883-4630
• Colfax-Citizens for the Developmentally Disabled (505)
445-5674
• Developmental Disabilities Planning Council (505)
827-7590
• Governor’s Committee on Concerns of the Handicapped
(505) 827-6465
• Native American Protection and Advocacy Project P.O.
Box 392 Shiprock, NM 87420 (505) 368-3216 (800) 862-7271
• Parents for Behaviorally Different Children (505)
265-0430 (800) 273-7232
• Parents Reaching Out (800) 524-5176 FREE OR LOW-COST
SERVICES
• Albuquerque Bar Association Volunteer Lawyers (505)
256-0417
• Legal Aid Society of Albuquerque (505) 243-7871
• New Mexico Protection & Advocacy System (800) 432-4682
NEW MEXICO PUBLIC EDUCATION DEPARTMENT
300 Don Gaspar, Santa Fe, NM 87501
NMPED: Special Education Bureau (505)
827-1457
Can provide forms and assistance with filing a complaint
or due process hearing; answer questions about the law.
Ask to speak to the Parent Liaison.
ONLINE RESOURCES IN SPECIAL EDUCATION
For more information about the topics in this guide
or other issues regarding special education, extensive
help and guidance is available online.
• The website of National
Information Center for Children and Youth with Disabilities
at www.NICHCY.org is a comprehensive source for administrators,
educators, and parents.
• The National
Association of Protection and Advocacy Systems at
www.protectionand advocacy.com is a disability rights
network that provides quality legally based advocacy
services. Their Education/IDEA link provides a wide
range of services relating to disabilities from distributing
information to advising families about the courts and
the law.
• Pacer
Center, Inc., (Parent Advocacy Coalition for Educational
Rights) at www.pacer.org is built on the concept
of “parents helping parents” and offers a wide range
of materials, information, and assistance to families.
• The information presented at the Center
on Positive Behavioral Interventions and Support
is available in both English and Spanish.
• View
the Individuals with Disabilities Education Act of 1997
(IDEA) or further explore federal regulations and issues
at the United States Office of Special Education Programs
(OSEP). The New Mexico rules can be obtained online
through the Public Education Department at www.ped.state.nm.us,
as well as links to other topics related to special
education in New Mexico.
Thank you for taking the time to
read this information! |