200 R.I. Code R. 200-RICR-20-30-6.8

Current through December 3, 2024

Section 200-RICR-20-30-6.8 - Procedural Safeguards

6.8.1 Due Process Procedures for Parents and Children

A. Responsibility of SEA and other public agencies shall be in accordance with 34 C.F.R. § 300.500, incorporated by reference by above.

B. Opportunity to examine records; parent participation in meetings shall be in accordance with 34 C.F.R. § 300.501, incorporated by reference above; provided, however:

1. Parent involvement in placement decisions shall be in accordance with 34 C.F.R. § 300.501(c). In addition:

a. The LEA shall make reasonable efforts to ensure that the parents understand, and are able to participate in, any group discussions relating to the educational placement of their child, including arranging for sign or language interpreters.

C. Independent educational evaluation shall be in accordance with 34 C.F.R. § 300.502, incorporated by reference above; provided, however:

1. If a parent requests an independent educational evaluation at public expense, the public agency shall comply with 34 C.F.R. § 300.502(b) not later than fifteen (15) calendar days from receipt of a request.

D. Prior notice by the public agency; content of notice, shall be in accordance with 34 C.F.R. § 300.503, incorporated by reference above; provided, however:

1. The written notice required by 34 C.F.R. § 300.503(a) shall be given within ten (10) school days.

E. Procedural safeguards notice shall be in accordance with 34 C.F.R. § 300.504, incorporated by reference above; provided, however that the notice required in 34 C.F.R. § 300.504(c) shall also include a full explanation of the procedural safeguard available under §6.8.1(U) of this Part.

F. The use of electronic mail shall be in accordance with 34 C.F.R. § 300.505, incorporated by reference above.

G. Mediation. The SEA shall offer and implement a conflict resolution procedure called "mediation" in accordance 34 C.F.R. § 300.506, incorporated by reference above; provided, however:

1. Under 34 C.F.R. § 300.506(a), each public agency must ensure that procedures are established to implement 34 C.F.R. § 300.506(a), including referring a party seeking mediation to the SEA.

H. The filing of a due process complaint shall be subject to the provisions of 34 C.F.R. § 300.507, incorporated by reference above.

I. Due process complaints shall be in accordance with 34 C.F.R. § 300.508,

incorporated by reference above.

J. The development and use of model forms shall be provide in accordance with 34 C.F.R. § 300.509, incorporated by reference above.

K. The resolution process shall be in accordance with 34 C.F.R. § 300.510, incorporated by reference above.

L. Impartial due process hearings shall be conducted in accordance with 34 C.F.R. § 300.511, incorporated by reference above; provided, however:

1. Under 34 C.F.R. § 300.511(b), the SEA shall establish, implement, determine financial responsibility, and develop procedures for administering a system of due process under this section.

M. Hearing rights shall be provided in accordance with 34 C.F.R. § 300.512, incorporated by reference above.

N. Hearing decisions shall be issued in accordance with 34 C.F.R. § 300.513, incorporated by reference above.

O. Finality of decision; appeal.

1. Finality of hearing decision. A decision made in a hearing conducted pursuant to §§6.8.1(H) through (N) of this Part or §§6.8.2(A) through (E) of this Part is final, except that any party involved in the hearing may appeal the decision under the provisions of §6.8.1(Q) of this Part.

P. Timelines and convenience of hearings and reviews shall be in accordance with 34 C.F.R. § 300.515, incorporated by reference above.

Q. Civil actions may be brought in accordance with 34 C.F.R. § 300.516, incorporated by reference above; provided, however:

1. General. Under 34 C.F.R. § 300.516(a), any party aggrieved by the findings and decision made under §§6.8.1(H) through (N) of this Part or §§6.8.2(A) through (E) has the right to bring a civil action with respect to the due process complaint notice requesting a due process hearing under §§6.8.1(H) or 6.8.2(A) through (C) of this Part. The action may be brought in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy.

2. Time limitation. Under 34 C.F.R. § 300.516(b) the party bringing the action shall have thirty (30) days from the date of the receipt of the decision of the hearing officer to file a civil action.

R. Attorneys' fees shall be in accordance with 34 C.F.R. § 300.517, incorporated by reference above.

S. Child's status during proceedings shall be in accordance with 34 C.F.R. § 300. 518, incorporated by reference above.

T. The assignment of surrogate parents shall be in accordance with 34 C.F.R. § 300. 519, incorporated by reference above.

U. Transfer of parental rights at age of majority.

1. When a child with a disability reaches the age of eighteen (18) under R.I. Gen. Laws § 15-12-1 (except for a child with a disability who has been determined to be incompetent under State law):

a. The public agency must provide any notice required by this part to both the child and the parents; and

b. All rights accorded to parents under Part B of the Act transfer to the child;

2. All rights accorded to parents under Part B of the Act transfer to children who are incarcerated in an adult or juvenile, State or local correctional institution; and

3. The public agency must notify the child and the parents of the transfer of rights.

6.8.2 Discipline Procedures

A. Authority of school personnel; emergency removal. Section 34 C.F.R. §§ 300.530(c) through (h) is incorporated by reference above.

1. Section 34 C.F.R § 300.530(a) is superseded by the following (Case-by-case determination):

a. School personnel may consider any unique circumstances on a case-by-case basis when determining whether a change in placement, consistent with the other requirements of this section, is appropriate for a child with a disability who violates a code of student conduct.

b. If school personnel determine that a child with a disability presents an immediate threat to him or herself or to others, the child may be removed from school for the remainder of the school day regardless of the number of days of suspension the child had already accrued during that school year.

c. For any emergency removal under §6.8.2(A)(1)(b) of this Part the public agency must follow the requirements of this section.

2. Section 34 C.F.R. § 300.530(b) is superseded by the following (School Removal):

a. Removals for less than ten (10) days cumulative. School personnel under this section may remove a child with a disability who violates a code of student conduct from his or her current placement to an appropriate interim alternative educational setting, another setting, or suspension, for not more than ten (10) consecutive school days (to the extent those alternatives are applied to children without disabilities).

(1) During the first ten (10) school days of removal (cumulative) during the course of a school year, a public agency may, but is not required to:

(AA) Provide educational services to the child;

(BB) Conduct a manifestation determination prior to the disciplinary removal;

(CC) Perform a functional behavioral assessment of the child; or

(DD) Develop a behavioral intervention plan to address the behavioral factors such as the length of each removal, the total amount of time the child is removed, and the proximity of the removals to one another.

b. Removals for more than ten (10) days cumulative. After a child with a disability has been removed from his or her current placement for more than ten (10) school days cumulative in the same school year, during any subsequent days of removal the public agency must provide services to the extent required under 34 C.F.R. § 300.530(d).

B. Determination of setting shall be in accordance with 34 C.F.R. § 300.531, incorporated by reference above.

C. Appeals and expedited due process hearings shall take place in accordance with 34 C.F.R. § 300.532, incorporated by reference above; provided, however:

1. An expedited due process hearing shall be in accordance with 34 C.F.R. § 300.532(c), except that the expedited due process hearing must conclude within twenty (20) school days of the date that the complaint requesting the hearing is filed.

D. The child's placement during an appeal shall be in accordance with 34 C.F.R. § 300.533, incorporated by reference above.

E. Protections for children not determined eligible for special education and related services shall be in accordance with 34 C.F.R. § 300.534, incorporated by reference above.

F. Referral to and action by law enforcement and judicial authorities shall be in accordance with 34 C.F.R. § 300.535, incorporated by reference above.

G. Change of placement because of disciplinary removals.

1. For purposes of removals of a child with a disability from the child's current educational placement under §§6.8.2(A) through (F) of this Part, a change of placement occurs if the removal is for more than ten (10) school days cumulative in the same school year.

200 R.I. Code R. 200-RICR-20-30-6.8

Adopted effective 1/9/2019