As the parent of a child who may receive special education, you have certain rights
which are guaranteed by federal law -- the Individuals with Disabilities Education Act (IDEA).

These rights are listed in this brochure and include your right to participate in meetings with
respect to the identification, evaluation and educational placement of your child and the provi-sion of a free appropriate public education to your child.

One of your rights is to be informed (in writing, in your native language) of the proce-dural
safeguards available to you. You are entitled to notice of your procedural safeguards
when:
1. your child is initially referred for evaluation;
2. you are notified of an Individualized Education Program (IEP) meeting;
3. you are notified of reevaluation; and
4. you submit a complaint regarding identification, evaluation, placement or a free
appropriate public education (FAPE) for your child.

This brochure contains information on procedural safeguards. If you would like a full
explanation of these rights, please contact your local school district superintendent or director of special education or the Legal Services Division, Office of Public Instruction (OPI), Hel-ena, Montana (406-444-4402).
 

PRIOR WRITTEN NOTICE

1. You have the right to receive written notice a reasonable time before the school
district PROPOSES or REFUSES to initiate or change the identification, evaluation, educa-tional placement or provision of a free appropriate public education to your child. The notice must be written in your native language and at a level understandable to the general public. If your method of communication is not a written language or the notice is not written in your native language, you have the right to have the notice translated orally or provided by other means. The school district must keep written documentation that you received this notice.

2. This notice must provide:

a. a statement that you have procedural safeguards under IDEA and document
    that you have been given a copy of this borchure;
b. a description of the action proposed or refused by the school district;
c. an explanation of why the action is proposed or refused;
d. a description of any other options the school district considered;
e. the reasons why those options were rejected;
f. a description of each evaluation procedure, test, report or record used as a
    basis for the action proposed or refused;
g. a description of any other factors relevant to the school district’s decision; and
h. sources for you to obtain assistance in understanding your rights.

1. Informed consent means that you have been fully informed, in your native lan-guage,
of all information relevant to the activity for which consent is sought, that you under-stand
and agree to the carrying out of the activity, and that you understand that written consent
is voluntary and may be revoked at any time.

2. You have the right to:

a. given written consent before a school district initially evaluates your child,
    places your child in a special education program or conducts any new tests as
    a part of reevaluation of your child;
b. give written consent for annual placement in special education programs; and
c. to refuse or revoke prior consent.

4. If your consent for reevaluation or annual placement cannot be obtained and you
have not refused or revoked consent, the school district may reevaluate or provide special
education and related services in accord with your child’s IEP 15 days from the date that it
provided written notice to you of reevaluation or annual placement.

ACCESS TO RECORDS

You have the right to:

1. inspect and review all education records with respect to the identification, evalua-
tion and educational placement of your child and the provision of a free appropriate public
education to your child.

2. review records without unnecessary delay and prior to any meeting regarding an
individualized education program or hearing relating to the identification, evaluation or place-ment of your child. This must happen no later than 45 days after your request.

3. a response from the school district to reasonable requests for explanations and in-terpretations of the information in the record.

4. be provided, upon your request, a list of the types and locations of education records
collected, maintained or used by the school district.

5. request that the school district provide you with copies of the records if failure to
obtain copies would keep you from reviewing or inspecting the records. The school district
may charge a fee for the copies if the fee doesn’t prevent you from reviewing the records. The school district may not charge a fee to search for or retrieve the records.

6. have a representative of your choice inspect and review the records.

7. be informed that upon your child’s enrollment in a public school from another pub-lic
school, the education and discipline records will be transferred to the new school in accor-dance with state law and that you may request a copy of the information transferred.

8. be informed of your rights under the Family Educational Rights and Privacy Act
(FERPA) and local school board policy and that you may withhold consent to disclose records
in some circumstances.

9. be informed that the school district must keep a record of persons obtaining access
(except as written in local school board policy) to your child’s records, including the name of
the person, the date access was given and the purpose for which the person used the records.

10. inspect and review only the information relating to your child if the record contains
information about another child.

11. be informed that the school district may presume that you have authority to look at
records relating to your child unless the school district has other information that denies you
authority under state law.

12. request that the school district change the information in the record if you believe
that the information is inaccurate or misleading or violates the privacy or other rights of your child. If the school district agrees to change the education record, the record must be changed within a reasonable period of time.

13. request a FERPA hearing if the school district refuses to change the record. If, as a
result of the hearing, the school district decides that the information:

a. is inaccurate, misleading or a violation of privacy, the school district must
    change the record and inform you in writing of the changes.
b. is not inaccurate, misleading or a violation of privacy, the school district must
    inform you of your right to place in the record a statement setting forth your
    reasons for disagreeing with the school district’s decision. This statement
    must be maintained with the contested portion of the record as part of the
    education record as long as the record is maintained by the school district and
    included with any request for disclosure.

EVALUATION PROCEDURES

You have the right to:

1. a full and individual evaluation of your child’s educational needs prior to initial
placement in a special education program. Your child should be assessed in all areas of sus-pected disability. Evaluation must be based on a variety of assessment tools and strategies, including information provided by you, that may assist in determining whether your child has a disability, your child’s present level of performance and educational needs, and whether your child needs special education and related services. The evaluation materials must be in your child’s native language or other mode of communication unless it is clearly not feasible to do so, and must not be culturally or racially discriminatory. The tests must be given by trained personnel according to the instructions by the test makers for the purpose which they were made so that test results accurately reflect your child’s aptitude or achievement level rather than reflecting any sensory impairment which your child may have.

2. have the evaluation made by a multidisciplinary group, including at least one per-son
who is knowledgeable in the area of suspected disability, who:

a. is knowledgeable about your child, the meaning of the test results and the
    placement options;
b. ensures that evaluation decisions are not based upon a single procedure and
    include assessments tailored to address specific areas of educational need and
    not just an intelligence score; and
c. ensures that information obtained from the evaluation is carefully considered.

4. be notified, in the case of re-evaluation, if the IEP team determines that no addi-tional
data is needed to determine whether your child continues to be a child with a disability.
Notification shall include the reason(s) for the decision and your right to request an assess-ment to determine whether your child continues to be a child with a disability. The school district is required to conduct further assessment if you so request.

5. request an independent educational evaluation at public expense if you disagree
with the educational evaluation provided by the school district. The school district must pro-vide you with information upon request as to how and where to obtain an independent educa-tional evaluation and ensure that the criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, are the same as the crite-ria which the school district uses when it initiates an evaluation.

a.  Before paying for such evaluation, the school district may initiate a due pro-cess
     hearing to show that its evaluation is appropriate.
b.  If a due process hearing officer requests an independent educational
     evalua-tion as part of the hearing, the cost of the evaluation must be at public
     ex-pense.
c.  If the final decision in the hearing is that the school district’s evaluation is
    appropriate, you still have the right to an independent educational evaluation,
    but not at public expense.
d. If you obtain an independent educational evaluation at your own expense, the
    school district must consider the results of the independent educational
    evalu-ation in any decision it makes about your child’s educational program. You
    may present the results of an independent educational evaluation at a due
    process hearing.

You have the right to:

1. have your child educated to the maximum extent appropriate to your child’s indi-vidual
needs with children who do not have disabilities.

2. have your child removed from the regular educational environment only when the
nature or severity of the disability is such that education in regular classes with the use of
supplementary aids and services cannot be achieved satisfactorily.

3. have your child educated in the school which he or she would attend if not disabled,
unless the IEP requires some other arrangement.

4. have your child’s educational placement based upon his or her IEP and determined
at least annually.

PRIVATE SCHOOL PLACEMENTS BY PARENTS

1. The school district is not required to pay for the cost of education, including special
education and related services, for your child at a private school or facility if the school district has made a free appropriate public education available to your child and you choose to place your child in the private school.

2. Children voluntarily enrolled in private schools for purposes other than the provi-sion
of a free appropriate public education may continue to receive special education and
related services subject to financial limits and location options prescribed in the Individuals
with Disabilities Education Act.

3. If you place your child at a private school and you believe a free appropriate public
education is not available at your public school, you may seek reimbursement for the cost of
the enrollment through a due process hearing. If the hearing officer or court finds that the
school district did not make a free appropriate public education available to your child in a
timely manner prior to your child’s enrollment in the private school, the hearing officer or
court may order the public school to reimburse you. Even if the hearing officer or court finds your actions reasonable, they may limit reimbursement if:

a.  at the most recent IEP meeting that you attended prior to your removal of your
    child from public school you did not inform the IEP team that you were
    re-jecting the placement proposed by the public school; or
b. 10 business days prior to your removal of your child from public school you
    did not give written notice to the school district that you were rejecting the
    proposed placement, your concerns, and you intend to enroll your child in a
    private school at public expense for the purpose of a free appropriate public
    education.

1. The school district must ask the Youth Court or Tribal Court (as appropriate) to
appoint a surrogate parent when:

a. the parents of the child are not known;
b. after reasonable efforts, no parent can be located; or
c. the child is a ward of the state.

DISPUTE RESOLUTION

Both you and the school district share in the education of your child. If you have con-cerns
about the education of your child, you and your child’s teacher should hold early and
open discussions about the issues. You are urged to become actively involved in the develop-ment of your child’s Individualized Education Program (IEP).

At times, you may disagree with the school district’s educational decisions. Every at-tempt
should be made to resolve these differences with the local school district as soon as they
arise. If they cannot be resolved, you may request mediation or a due process hearing.

MEDIATION

Mediation is a process to assist parents and schools in resolving disagreements regarding
a student’s special education program. A trained mediator works with both parties to guide
them toward a mutually satisfactory solution in the best interest of the student. Mediation is
voluntary. When you and the school district are unable to modify your positions without
outside assistance, you should request mediation. Inquiries about mediation should be di-rected to your local special education director.

DUE PROCESS HEARING

You have the right to:

1. initiate an administrative hearing, called a due process hearing, on any matter re-lating
to the proposal or refusal of a school district to initiate or change the identification,
evaluation, educational placement or free appropriate public education (FAPE) of your child.

2. have the hearing conducted by an impartial hearing officer who is not employed by
a public agency involved in the education or care of your child or who may have a personal or
professional conflict of interest. The hearing must be conducted by the Office of Public In-struction (OPI) under Administrative Rules of Montana (ARM) 10.16.2401-10.16.2417. The OPI must keep a list of the hearing officers together with a statement of the qualifications of each person. A copy of the rules or list of hearing officers may be obtained by writing to OPI.

3. have the hearing scheduled at a time and place reasonably convenient to you and
your child. During the hearing procedures, you have the right to:

a. be accompanied and advised by counsel and by individuals with special
    knowl-edge or training with respect to problems of children with disabilities;
b. present evidence and confront, cross-examine and compel the attendance of
    witnesses;
c. prohibit the introduction of any evidence at the hearing, including completed
   evaluations and recommendations that have not been disclosed at least five
   (business) days prior to the hearing;
d. obtain a written or electronic verbatim record of the hearing;
e. open the hearing to the public if you desire;
f. have your child present during the hearing; and
g. obtain written findings of fact and conclusions of law separately stated and an
    order concerning all matters at issue in the hearing within 45 days after
    re-quest of the hearing unless a specific extension of time is granted by the
    hear-ing officer at the request of either party.

5. have your child remain in the current educational placement (referred to as “stay
put”) unless you agree in writing to other arrangements. If the dispute is over initial admit-tance to school, you have the right to have your school-aged child placed in a public school program with your consent until the hearing proceedings are over. If the dispute is over your child’s placement in an interim alternative educational setting because of dangerous behavior, your child shall remain in the interim setting and an expedited hearing shall be initiated. If school personnel propose to change your child’s placement after expiration of the interim alternative educational setting, your child shall remain in the placement he or she was in prior to the interim alternative educational setting. The school district may seek subsequent expe-dited hearings if, at the expiration of the 45-day placement, the school district maintains that your child is still dangerous and the issue has not been resolved through due process.

6. appeal the decision to court. The school district also has the right of appeal. The
decision of the hearing officer is final unless a party to the hearing appeals the decision. The
OPI, after deleting any personally identifiable information, shall transmit those findings and
decisions to the State Special Education Advisory Panel and make those findings and deci-sions available to the public.

7. reasonable attorney’s fees in some instances. Attorney’s fees may only be awarded
by a court and must be calculated at the community rate. Attorney’s fees may not be awarded for legal services performed after a written offer of settlement to you if:

a. the offer is made any time more than 10 days before the hearing begins;
b. the offer is not accepted within 10 days; and
c. the court finds that the relief obtained by you is not more favorable than the
    settlement offer.

Attorney’s fees may not be awarded for legal services relating to any meeting of the IEP
team unless the meeting is convened as a result of an administrative proceeding or judicial
action.

To request a due process hearing or request additional information, please write to the
State Superintendent of Public Instruction, P.O. Box 202501, Helena, Montana 59620-2501.
The letter shall include a clear and concise description of the exact nature of the disagreement and a proposed solution to the problem. The letter must be signed and dated. A model form is available from OPI.

COMPLAINTS

OPI has established procedures to provide for the filing of complaints by individuals or
organizations alleging that a school district has failed to follow state and/or federal law in
providing a student with disabilities a free appropriate public education. To file a complaint,
the complainant must send a written and signed complaint that includes:

1. the name of the child, the address of the residence of the child, and the name of the
school the child is attending;

2. a description of the nature of the problem of the child relating to such proposed
initiation or change, including facts relating to such problem; and

3. a proposed resolution of the problem to the extent known and available to the par-ents
at the time; and

4. a statement that the school district has violated a requirement of law.
A complaint form is available from the Office of Public Instruction upon request. The
complaint must be filed with the Compliance Officer, Office of Public Instruction, P.O. Box
202501, Helena, MT 59620-2501.

DISCIPLINE: INTERIM ALTERNATIVE EDUCATIONAL SETTING

1. If the disciplinary action the school district imposes results in a change in educa-tional
placement of your child (for more than 10 school days), you have the right to:

a. written notice and procedural safeguards under IDEA; and

b. request an expedited hearing if you disagree with the determination that your
child’s behavior was not a manifestation of your child’s disability or with any
decision regarding the placement.

3. The interim alternative educational setting shall enable your child to continue par-ticipation in the general curriculum and receive services and modifications described in the current IEP, including services and modifications to address behavior so that it does not recur.

Contact your school district superintendent for specific procedures on a manifestation
determination and the expedited hearing.

TRANSFER OF PARENTAL RIGHTS AT AGE 18

1. When your child reaches age 18, the school district must provide any required
notices to both you and your child. You retain the right to participate in meetings for which
you receive notice. All other rights transfer to your child. The school district must inform you and your child of the rights that will transfer at least one year before your child reaches age 18.

2. The school district must inform you and your child in writing when the rights trans-fer.
Your child may grant, in writing, to you the authority to continue to make decisions on his
or her behalf for educational purposes.

3. If you have legal guardianship of your adult child, you have the power to exercise
all of your child’s rights without a grant from your child.