Procedural Safeguards

Due Process
Each LEA shall establish and implement procedural safeguards as follows:

The parent of a child with a disability, upon request, shall be afforded an opportunity to inspect and review all education records involving:

The identification, evaluation or educational placement of the child; or
The provision of a free appropriate public education to the child. (See: Management of the Student’s Scholastic Records)

The parent of a child with a disability shall be provided, on request, information as to where an independent educational evaluation (IEE) may be obtained.
The parent of a child with a disability shall have the right to obtain an IEE of the child:

Such IEE will be at public expense if the parent disagrees with the evaluation obtained by the LEA; however, the LEA shall have the right to initiate a due process hearing to show that its evaluation is appropriate. If the final decision is that the evaluation is appropriate then, the parent still has the right to an IEE, but not at public expense.
Whenever an IEE 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 LEA uses when it initiates an evaluation.
The results of the IEE whether or not at public expense:

Must be considered by the LEA in any decision regarding a free appropriate public education for the child; and
May be presented as evidence at a hearing under õ3.4A2 of these regulations.

The parent of a child with a disability shall be given written notice within a reasonable time before the LEA proposes or refuses to initiate or change the identification, evaluation, or educational placement of the child, or the provision of free appropriate public education for the child.
The notice shall include:

A full explanation of all procedural safeguards available to the parents;
A description of the action proposed or refused by the LEA, an explanation of why the LEA proposes or refuses to take the action, and a description of any options the LEA considered and the reasons why those options were rejected;
A description of the nature, purpose, and use of any evaluation procedure, test, record, or report the LEA used as a basis for the proposal or refusal; and
A description of any other factors which are relevant to the LEA’s proposal or refusal.

Information contained in the notice shall be:

Written in language understandable by the public; and
Provided in the native language of the parent 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, then the LEA shall take steps to ensure:

That the notice is translated orally or by other means to the parent in his or her native language or other mode of communication;
That the parent understands the content of the notice; and
That there is documentation that the requirements in paragraphs (a) and (b) have been met.

Written parental consent shall be obtained before:

Pre-placement evaluation;
Initial placement of a child with a disability in a program providing special education and related services; and
Any change in program/placement, including any partial or complete termination of special education and services, except for expulsions and graduation. Consent for placement may be revoked up until the first day of the placement.

Written parental consent shall be obtained for the following:

Any change in identification of a child with a disability and
Any evaluation which is conducted other than the triennial evaluations. (Parental consent is not necessary for reviewing the child’s records for conducting a reevaluation.)
Consent for initial placement may be revoked by the parent at any time prior to the first day of that placement.

Except for preplacement evaluation and initial placement, consent or refusal to give consent for those other situations requiring consent shall be given by the parent to the LEA within ten administrative working days after notice is received. If the parent fails to notify the LEA within ten administrative working days, the LEA may proceed as if consent had been granted, and the parent must initiate due process to contest the action. If the parent refuses to give consent, the LEA shall attempt to resolve parental withholding of consent through informal means. If those informal methods are not successful, the LEA must use other measures as necessary to ensure that, except for preplacement evaluation and initial placement, parental refusal to consent will not result in a denial of a necessary free appropriate public education.

Child’s Status During Proceedings
The child’s status during proceedings shall be as follows:

During the pendency of any administrative hearing or appeal or during the pendency of any judicial proceeding regarding these regulations, unless the LEA and the parent of the child agree otherwise, the child must remain in his current educational placement. While the placement may not be changed, this does not preclude using normal procedures for dealing with children who are endangering themselves or others. Such procedures do not include expulsion or suspension over ten days; however, the procedures may include time-out, detention, restriction of privileges, or temporary suspension up to ten days.
If the issue involves an application for initial admission to public school, the child of school age, with consent of the parent, must be placed in a public school program until the completion of all proceedings.

Responsibilities of LEA - Pre-Hearing

The confirmation of the appointment of the hearing officer by the LEA shall be done in such a manner as to protect the confidentiality of the parent(s) and the child. All necessary information shall be forwarded promptly to the hearing officer, together with the official request for a hearing in order to ensure that timelines are maintained.
The LEA shall send a copy of the correspondence confirming the appointment of a hearing officer along with a copy of the request for a hearing to the SEA within five administrative working days of the appointment of a hearing officer.
The LEA shall arrange for recording equipment to be set up, or a stenographer to be present, in the hearing room. The LEA shall also ensure that the recording equipment, if used, is reliable and working and that the recording is clear and can be transcribed, if necessary. A complete, accurate, written verbatim transcript of the proceedings need not be made at the conclusion of the hearing, unless the hearing officer needs it for review prior to rendering a decision. When there is an appeal of the decision, a verbatim copy of the recording or transcript shall be supplied to the parties to the appeal, upon request, and free of charge.
Each LEA shall keep a list of the persons who serve as hearing officers. The list must include a statement of the qualifications of each of those persons.

Responsibilities of the Hearing Officer - Pre-Hearing

The hearing officer shall, within five administrative working days of appointment, secure a time, date and location for the hearing which are convenient to both parties, and notify both parties to the hearing and the SEA, in writing, of the time, date and location of the hearing.
The hearing officer shall ascertain whether or not the parties will have attorneys at the hearing. If so, the hearing officer shall send copies of correspondence to the attorneys of the parties.
The hearing officer shall ascertain from the parents whether the hearing will be open.
The hearing officer shall ensure that a stenographer or recording equipment is present at the hearing and ensure that testimony is clearly recorded, either by the stenographer or recording equipment, to permit an accurate record of the proceedings. If a tape recorder is used, the hearing officer shall be provided a written list of speakers in order of appearance, and at the beginning of the hearing identify on tape each speaker’s title, position, and interest in the proceeding. Thereafter, each speaker, prior to addressing the hearing, shall state his name for the record.
The hearing officer shall receive a list of witnesses and documentary evidence for the hearing no later than five administrative working days prior to the hearing.
The hearing officer may schedule a pre-hearing conference to be attended by the parties and attorneys, if appropriate. Such a conference may be requested by the hearing officer or the parties to the hearing to clarify or eliminate issues.
The hearing officer has power to issue subpoenas requiring testimony or the productions of books, papers, and physical or other evidence.

The hearing officer may procure an order of enforcement for a subpoena in the circuit court of the jurisdiction in which the hearing is to be held.
Any person so subpoenaed may petition the circuit court for a decision regarding the validity of such subpoena if the hearing officer does not question or modify the subpoena after objection thereto.

The hearing officer shall ensure that the LEA has appointed a surrogate parent who is acting to protect the educational interests and rights of the child in accordance with õ3.5 of these regulations.

Rights of Parties to the Hearing

Any party to a hearing shall have the right to:

Be accompanied and advised by counsel and/or by individuals with special knowledge or training concerning the problems of children with disabilities without being in violation of the provisions of õ54.1-3904 of the Code of Virginia as amended.
Present evidence and confront, cross-examine, and compel the attendance of witnesses.
Prohibit the introduction of any evidence at the hearing that has not been disclosed to the other party at least five administrative working days before the hearing.
Receive written findings of fact and decisions rendered by the hearing officer.

The parent(s) involved in a hearing must be given the right to:

Have the child who is the subject of the hearing present;
Open the hearing to the public;
Receive a copy of the implementation plan;
Obtain the written or electronic verbatim record of the hearing upon request and free of charge.

Due Process Hearing Procedure

The rights of all parties to the hearing shall be protected by the hearing officer.
The hearing officer shall ensure that an atmosphere conducive to impartiality and fairness is maintained at all times in the hearing. The hearing officer may excuse witnesses after they testify to limit the number of expert witnesses present at the same time or to sequester witnesses during the hearing.
The hearing officer may stop unnecessarily hostile or irrelevant pursuits in questioning.
The hearing officer shall remand the matter in dispute to a conference between the parties only when informal resolution and discussion appear to be desirable and constructive. This action shall not be used to delay or deprive the parties of their rights and shall be exercised only when the best interest of the child will be served.
The hearing officer may require an independent educational evaluation of the child. This evaluation shall be at public expense and shall be conducted in accordance with the regulations governing evaluation and assessment.
The hearing officer, in the course of the proceedings, shall include in the written findings a determination of the following:

Whether or not the requirements of notice to parents were satisfied;
Whether or not the child has a disability;
Whether or not the child needs special education and related services; and
Whether or not the LEA is supplying a free appropriate public education.

The hearing officer shall make no presumptions in the case and shall base his findings of fact and decision(s) solely upon the preponderance of the evidence presented at the hearing and applicable state and federal law.
The hearing officer shall report findings of fact and decision(s) to both parties to the appeal, the LEA, and to the SEA.
A decision made by the hearing officer is final, unless a party to the hearing appeals to the state for an administrative review. An appeal by either party must be instituted within 30 administrative working days of the date of the hearing decision.

Administrative Appeal and Impartial Review

If there is an appeal of the decision of a hearing officer, the SEA shall ensure an impartial review of the hearinministrative days of the date of such notice will result in review by the Superintendent of Public Instruction for action regarding appropriate sanctions.
Eligibility. The summary statementThe Superintendent of Public Instructioinistrative days of the receipt of a request for a review of a due process hearing. The official conducting the review shall:

Examine the entire hearing record;
Ensure that the procedures at the hearing were consistent with the requirements of due process;
Seek additional evidence, if necessary. If a hearing is held to receive additional evidence, then all hearing rights as specified in this section apply;
Afford the parties an opportunity for oral or written argument, or both, at the discretion of the reviewing official;
Advise all parties of their right to continue to be represented by counsel whether or not the reviewing official determines that a further hearing is necessary;
Make an independent decision upon completion of the review; and
Give a copy of written findings and the decision(s) to the parties to the appeal, the LEA and to the SEA in the manner prescribed.

The decision made by the reviewing official is final and binding on all parties, unless any party aggrieved by the findings and decisions of the administrative review brings civil action in any state court of competent jurisdiction within one year or in federal district court. In any such action, the court shall receive the records of the administrative proceedings, shall hear additional evidence in its discretion at the request of either party, and basing its decision on the preponderance of the evidence, shall grant such relief as it determines to be appropriate.

Attorney’s Fees

In any such action or proceeding, the court in its discretion, may award reasonable attorney’s fees as part of the costs to the parents or guardian of a child with a disability who is the prevailing party.
If a written offer of settlement is made to a parent or guardian within the time prescribed by Rule 68 of the Federal Rules of Civil Procedure, or, in the case of an administrative proceeding, at any time more than 10 days before the proceeding begins, and the offer is not accepted within 10 days and the court or administrative officer finds that the relief finally obtained by the parents or guardian is not more favorable to the parent or guardian than the offer of settlement, no award of attorney’s fees and related costs may be made for services performed subsequent to the time of such offer, unless the court finds that the prevailing party was reasonably justified in rejecting the settlement offer.

Timelines for Hearings and Reviews

The LEA shall ensure that not later than 45 calendar days after the receipt of a request for a due process hearing:

A final decision is rendered in the hearing, unless otherwise documented by the hearing officer; and
A copy of the decision is mailed to the parties and the SEA.

The SEA shall ensure that no later than 30 calendar days after the receipt of a request for a review:

A final decision is rendered in the review, unless otherwise documented by the reviewing officer; and
A copy of the decision is mailed to the parties.

A hearing or reviewing officer may grant specific extensions of time beyond the periods set out in paragraphs a. and b. of this section at the request of either party. This action shall in no way be used to delay or deprive the parties of their rights and should be exercised only when the best interests of the child will be served. Changes in hearing dates or extensions are to be noted in writing which shall be sent to all parties and to the SEA.
Each hearing and each review involving oral arguments must be conducted at a time and place which is reasonably convenient to the parent and child involved.

Implementation Plan

The LEA shall develop an implementation plan within 45 calendar days of the rendering of a decision or the withdrawal of a hearing or review request. Such plan shall be based upon the decision of the hearing officer, the reviewing officer, or agreement between the parties. The implementation plan must state how and when the decision or agreement will be put into operation. If the decision or agreement affects the child’s educational program, the revised IEP shall be made a part of the implementation plan. The implementation plan shall include the name and position of a case manager in the LEA charged with implementing the decision. Copies of this plan shall be forwarded to the parties to the hearing, the hearing and/or reviewing officer, and the SEA.
Failure of either of the parties to comply with the implementation plan shall be reported to the SEA for investigation and/or appropriate action.