What are Procedural Safeguards?

             Ask five people and you might easily get five different answers, including at least one response of, “Huh?”

              The term procedural safeguards sounds rather legalistic and perhaps even a little scary. When it comes to education, what or who needs to be safeguarded? Children? Parents? Teachers? Schools? For our purposes, Procedural Safeguards are a set of requirements to ensure that children with disabilities are provided with a free appropriate public education, according to the standards and mechanisms established by the IDEA and its regulations.

Stated in another way… Procedural Safeguards serve as an umbrella or security blanket of educational rights and responsibilities for children with disabilities and their parents. The public agencies responsible for the education of children with disabilities also operate beneath the umbrella of IDEA’s procedural safeguards; public agencies have certain specific rights related to these safeguards and most certainly a host of responsibilities. In this overview, we will introduce some prominent procedural safeguards and see how these correspond to the rights of children with disabilities and their parents, and to the rights and responsibilities of public agencies.     

Procedural safeguards are in keeping with the underlying values in our nation’s special education law. Yes, procedures and processes are very much a part of the discussion on Procedural Safeguards, but the essence of Procedural Safeguards is to serve as a strong foundation for ensuring the provision of a free appropriate public education for children with disabilities.

When you consider the many discrete parts of IDEA and its regulations (e.g., initial evaluation, individualized education programs, State eligibility), each has a set of standards that define and explain specific requirements. Procedural Safeguards are cross-cutting, and apply to many parts of the law and regulations. In this section of the training curriculum, as we look closely at some of the individual elements that comprise Procedural Safeguards, we’ll see how, as a whole, they are a keystone in IDEA.

Parent Participation:

Access to educational records:

Access to a child’s education records is frequently a concern of parents. The IDEA and its regulations guarantee parents the right to inspect and review all education records relating to their child that the public agency collects, maintains, or uses. This might include schoolwork examples in the file, evaluations, reports, and other records related to the child’s evaluation, educational placement, identification as a child with a disability, and the provision of a free appropriate public education (FAPE) to the child.

What are some of the specifics of IDEA’s regulatory provisions? Framed from a perspective of the umbrella of protections, the information in the bullets below pulls highlights from the regulations:

Parents’ Rights

• Parents can inspect and review educational records with respect to their child’s evaluation, identification, and placement; and the provision of FAPE. [§300.501(a)]
• Parents can request explanations and interpretations of the records. [§300.613(b)(1)]
• Parents can request copies of the records if not receiving copies would effectively prevent the parents from exercising their right to inspect and review those records. [§300.613(b)(2)]
• Parents can request that their representative be given access to inspect and review the records. [§300.613(b)(3)]

Schools’ Rights and Responsibilities

• Schools must comply with a parent’s request to inspect and review records without unnecessary delay before any meeting—regarding an IEP, a hearing or resolution session, and in no case more than 45 days after the request has been made. [§300.613(a)]
• Schools must respond to reasonable requests for explanations and interpretations of the records. [§300.613(b)(1)]
• Schools can charge a fee for copies of records made for parents, if the fee does not effectively prevent the parents from exercising their right to inspect and review those records. [§300.617(a)]
• Schools may not charge a fee for searching for, or retrieving, a child’s records for parents. [§300.617(b)]

And what happens if, upon inspecting their child’s records, parents believe that those records contain misleading or inaccurate information, or that the records violate their child’s rights?

Closer Look at Parent Participation

Content of educational records

Parents have the right to:

• request that their child’s records be amended; or

• attach their explanation to their child’s records if not amended

Suppose that, when parents have inspected their child’s records, they believe that those records contain misleading or inaccurate information, or that the records violate their child’s privacy or other rights. What options do parents have?

Changes to Educational Records

Now let us pull selected highlights from the regulations regarding changing a child’s educational records.

Parents’ Rights

A parent who believes that information in their child’s educational record is inaccurate, misleading, or violates the privacy or other rights of their child may request that the information be amended. [§300.618(a)]

Schools’ Rights and Responsibilities

• The school must decide whether to amend the information as requested by the parent within a reasonable period of time after receiving the request. [§300.618(b)]
• If the school refuses to amend the information as requested by the parent, it must inform the parent of the refusal and advise the parent of the right to a hearing. [§300.618(c)] (Note: This hearing is not the same as a due process hearing under §300.511.)

Parental Options if Parents’ Request to Amend Child’s Records is Refused

As noted above, parents may ask that their child’s records be amended if they believe that information in the records is inaccurate, misleading, or violates the privacy or other rights of their child. This right is set out at §300.618(a) and is mentioned in the bulleted list above.

         The public agency must:

• decide to accept or refuse this request within a reasonable period of time; and
• inform the parent if it refuses.

The agency must also provide parents with information regarding the parent’s right to a hearing on this matter. [§300.618(b)-(c)]

What type of hearing, one might wonder, and with what possible outcomes?  Answers to both questions are contained within the subsequent provisions at §§300.619 through 300.621.

§300.619 Opportunity for a hearing.

The agency must, on request, provide an opportunity for a hearing to challenge information in education records to ensure that it is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of the child.

§300.620 Result of hearing.

        (a) If, as a result of the hearing, the agency decides that the information is inaccurate, misleading or otherwise in violation of the privacy or other rights of the child, it must amend the information accordingly and so inform the parent in writing.

        (b) If, as a result of the hearing, the agency decides that the information is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of the child, it must inform the parent of the parent’s right to place in the records the agency maintains on the child a statement commenting on the information or setting forth any reasons for disagreeing with the decision of the agency.

        (c) Any explanation placed in the records of the child under this section must—

        (1) Be maintained by the agency as part of the records of the child as long as the record or contested portion is maintained by the agency; and

        (2) If the records of the child or the contested portion is disclosed by the agency to any party, the explanation must also be disclosed to the party.

§300.621 Hearing procedures.

A hearing held under §300.619 must be conducted according to the procedures in 34 CFR 99.22.

When parents’ request to have their child’s records amended is refused by the public agency, parents still have recourse to the hearing as a means of addressing their objections to information in their child’s records.

The hearing that parents may request to challenge the agency’s refusal to amend their child’s records must be conducted according to the FERPA regulatory procedures in 34 CFR §99.22 [see also §300.621].

The parent is not required, under the Act and these regulations, to follow the procedures that are applicable to filing a due process complaint under §§300.507 through 300.510. This is because the hearing authorized under §300.619 is for the explicit purpose of giving a parent the opportunity to challenge the information in education records when a parent believes the information is inaccurate, misleading, or otherwise in violation of the privacy or other rights of the child... The procedures used for these hearings vary from State to State, and we believe it is best to give States the flexibility to develop their own procedures for such hearings, as long as they meet the requirements in §300.621. (71 Fed. Reg. 46736)

Section 300.620 details two possible outcomes of the hearing that parents in this situation may appreciate knowing:

• Outcome 1: Parents’ request is upheld in the final decision, and the information must be amended in the child’s records, and parents must be so informed in writing.
• Outcome 2: Parents’ request is not upheld in the final decision. The public agency must inform the parents of their right to place in the records a statement commenting on the information or setting forth any reasons for disagreeing with the decision of the agency.

What is interesting in these last two items is that: (a) the parent’s request for this type of hearing does not invoke procedures applicable to filing a due process complaint; and (b) regardless of the outcome of the hearing, the parent’s viewpoint on specific information in their child’s educational records will be addressed in the records, either with the amending of the records as they requested or via their own statement that must be incorporated in the records and maintained there by the agency for as long as it maintains the child’s records or the contested part. If the latter case, the parent explanation must also be disclosed to any party with which the public agency discloses the student’s records or the contested portion. [§300.620(c)]

Closer Look at Parent Participation

Parents have the right to participate in meetings related to the:

• identification, evaluation, and educational placement of their child; and
• the provision of FAPE to their child, including IEP meetings

Parents are members of:

• the group that determines whether their child is a “child with a disability”
• the IEP Team of their child
• any group that makes educational placement decisions for their child

Public agencies must:

• provide parents with appropriate notice of a meeting
• use other methods to ensure parent participation in IEP meetings and placement meetings

At a Glance: Parent Participation

Parents’ Rights

In which meetings do parents have the right to participate?             

Parents have the right to participate in meetings related to the:

• evaluation, identification, and educational placement of their child; and
• provision of FAPE to their child, including IEP meetings.

In which groups are parents members?        

Parents are members of:

• the group that determines whether their child is a child with a disability;
• the IEP Team for their child; and
• any group that makes educational placement decisions for their child.

Public Agency Responsibilities   

Public agencies must:

• provide parents with an appropriate notice of a meeting; and
• use other methods to ensure parent participation in IEP meetings and placement meetings.

Public Agency Rights                              

Public agencies may:

• hold the IEP meeting and the meeting where the child’s placement is determined without the parents in attendance if unable to convince the parents to attend and if efforts to secure their participation are documented.

• Parents have the right to participate in meetings related to the evaluation, identification, and educational placement of, and the provision of FAPE to, their child. [§300.501(b)].
• Parents are entitled to be members of any group that decides whether their child is a child with a disability. [§300.306(a)(1)].
• Parents are entitled to be members of the IEP Team that develops, reviews and revises the IEP for their child. [§300.321(a)(1)]. 
• If neither parent can participate in an IEP meeting, the school must use other methods to ensure parent participation, including individual or conference calls. [§300.322(c)].
• Parents are members of any group that makes placement decisions for their child. [§§300.501(c) and 300.327].
• If neither parent can participate in a meeting related to the placement decision, the school must use other methods to ensure their participation, including individual or conference calls, or video conferencing. [§300.501(c)(3)].

Public Agency Rights and Responsibilities for Parent Participation in Meetings and Membership in Groups

• The school must provide appropriate notice so that parents can participate in meetings related to the evaluation, identification, and educational placement of, and the provision of FAPE to, their child. [§300.501(b)(2)]
• If neither parent can participate in an IEP meeting, the school must use other methods to ensure parent participation, including individual or conference calls. [§300.322(c)]
• The eligibility meeting and the IEP Team meeting may be conducted without a parent in attendance if the school cannot convince the parents that they should attend and keeps a record of its attempts to arrange a mutually agreed on time and place, such as records of calls, copies of letters sent, records of visits and any results from these attempts. [§300.322(d)]
• The school must ensure that the placement decision is made by a group of persons, including the parents, and other persons knowledgeable about the child, the meaning of the evaluation data, and the placement options. [§300.116]
• If neither parent can participate in a meeting related to the placement decision, the school must use other methods to ensure their participation, including individual or conference calls, or video conferencing. [§300.501(c)(3)]
• A placement decision can be made without the parents’ involvement if the school is unable to obtain their participation and has a record of its attempt to ensure their
  involvement. [§300.501(c)(4)]
• When conducting IEP meetings, placement meetings, and meetings to carry out administrative matters under the procedural safeguards section (such as scheduling, exchange of witness lists, and status conferences), the parent and school may agree to use alternative means of meeting participation, such as video conferences and conference calls. [§300.328]

Parent participation in “meetings”—generally—falls under Procedural Safeguards, at §300.501(b), which states that parents must be afforded the opportunity to participate in meetings with respect to the identification, evaluation, and educational placement of the child, and the provision of FAPE to the child. As noted in the bulleted list above, the public agency must provide parents with notice consistent with §300.322(a)(1) and (b)(1) to ensure that parents of children with disabilities have the opportunity to participate in the meetings. These notice provisions are discussed on the next slide, so you do not need to delve into them now, merely mention them as you review the specifics of public agency responsibilities.

The last bullet point, that the public agency must make available alternative means of parent participation, is an obligation that is found in the regulations both for Procedural Safeguards and for IEPs. The other methods that the public agency must use to ensure parent participation in placement meetings—which include individual and conference calls, or video conferencing [§300.501(c)(3)]—are similar to the reference in the IEP section for ensuring parent participation in IEP meetings by other methods including individual or conference telephone calls [§300.322(c)]. The regulations allow the parent and public agency to agree to use such use alternative means of meeting participation when conducting IEP meetings, placement meetings, and meetings to carry out administrative matters under the Procedural Safeguards section (such as scheduling, exchange of witness lists, and status conferences). [§300.328]

Although there are some parallels in the regulatory provisions allowing a placement decision to be made without parental participation and allowing an IEP meeting to be conducted without a parent in attendance, there is an important difference in the specific documentation a public agency must keep describing its attempts to involve the parents. An IEP Team meeting may be conducted without the parents if the public agency is unable to convince the parents to attend. However, the agency must keep a record of its attempts to arrange for the meeting at a mutually agreed on time and place—such as detailed records of telephone calls made or attempted and the results of those calls; copies of correspondence sent to the parents and any responses received; and detailed records of visits made to the parent’s home or place of employment and the results of those visits. [§300.322] In response to public comments suggesting that the regulatory provision at §300.501(c)(4) use the same language that is in the IEP provision to describe the record of attempts to ensure the parent’s involvement in an educational placement meeting, the Department rejected that proposal and observed that:

As a matter of practice, public agencies use a variety of methods to contact parents depending on the ways they find to be most efficient and effective for a particular situation. Public agencies take seriously their obligation to include parents in placement decisions and are in the best position to determine the records they need to demonstrate that they have taken appropriate steps to include parents in placement decisions before holding a placement meeting without a parent in attendance. (71 Fed. Reg. 46689)

What is not a “meeting”? The regulations, at §300.501(b)(3), are careful to clarify what does not constitute a “meeting” covered by the procedural safeguard provisions of “notice” and opportunity for “parent participation.” They read:

        (3) A meeting does not include informal or unscheduled conversations involving public agency personnel and conversations on issues such as teaching methodology, lesson plans, or coordination of service provision. A meeting also does not include preparatory activities that public agency personnel engage in to develop a proposal or response to a parent proposal that will be discussed at a later meeting.