It is the responsibility of the Pennsylvania Department of Education to ensure that all children with disabilities residing in the Commonwealth, regardless of the severity of their disabilities, and who are in need of special education and related services, are identified, located, and evaluated. This responsibility is required by a federal law called the Individuals with Disabilities Education Improvement Act of 2004, 20 U.S.C. 1200 et. seq. (“IDEA 2004”). IDEA 2004 requires each state educational agency to publish a notice to parents, in newspapers or other media, before any major identification, location, or evaluation activity. IDEA 2004 requires this notice to contain certain information.
In addition, the federal Family Educational Rights and Privacy Act of 1974 (FERPA), which protects confidentiality, requires educational agencies to notify parents annually of their confidentiality rights.
Pennsylvania Virtual Charter School fulfills its duties with this annual notice. Pennsylvania Virtual Charter School also directs parents to the procedural safeguards notice available through the school.
The purpose of this notice is to describe: (1) the types of disabilities that might qualify the child for such programs and services, (2) the special education programs and related services that are available, (3) the process by which the public schools screen and evaluate such students to determine eligibility, (4) the special rights that pertain to such children and their parents or legal guardians and (5) the confidentiality rights that pertain to student information.
Under the federal Individuals with Disabilities Education Improvement Act of 2004, or “IDEA 2004,” children qualify for special education and related services if they have one or more of the following disabilities and, as a result, need such services:
Children with more than one of the foregoing disabilities could qualify for special education and related services as having multiple disabilities.
The legal definitions of the above-listed disabilities, which the public schools are required to apply under the IDEA 2004, may differ from those used in medical or clinical practice. The legal definitions, moreover, could apply to children with disabilities that have very different medical or clinical disorders. A child with attention deficit hyperactivity disorder, for example, might qualify for special education and related services as a child with “other health impairments,” “serious emotional disturbance,” or “specific learning disabilities” if the child meets the eligibility criteria under one or more of these disability categories and if the child needs special education and related services as a result.
Under Section 504 of the federal Rehabilitation Act of 1973, and under the federal Americans with Disabilities Act, some school age children with disabilities who do not meet the eligibility criteria outlined above might nevertheless be eligible for special protections and for adaptations and accommodations in instruction, facilities, and activities. Children are entitled to such protections, adaptations, and accommodations if they have a mental or physical disability that substantially limits or prohibits participation in or access to an aspect of the school program.
If a charter school admits children below school age, the Commonwealth provides early intervention services to eligible children with special needs who are at least 3 years of age, but younger than the age of beginners, through agencies which hold Mutually Agreed Upon Written Agreements (MAWAs).
Public schools must ensure that children with disabilities are educated to the maximum extent possible in the regular education environment, and that the instruction they receive conforms as much as possible to the instruction that non-disabled students receive. Programs and services available to students with disabilities, in descending order of preference, may include; (1) regular class placement with supplementary aides and services provided as needed in that environment; (2) regular class placement for most of the school day with itinerant service by a special education teacher either in or out of the regular classroom; (3) regular class placement for most of the school day with instruction provided by a special education teacher in a resource classroom; (4) part time special education class placement in a regular public school or alternative setting; and (5) special education class placement or special education services provided outside the regular class for most or all of the school day, either in a regular public school or alternative setting.
Depending on the nature and severity of the disability, the public school can provide special education programs and services in areas such as (1) the public school the child would attend if not disabled, (2) an alternative regular public school either in or outside the school district of residence, (3) a special education center operated by a public school entity, (4) an approved private school or other private facility licensed to serve children with disabilities, (5) a residential school, (6) approved out-of-state program, or (7) the home.
Special education services are provided according to the primary educational needs of the child, not the category of disability. The types of service available include: (1) learning support, for students who primarily need assistance with the acquisition of academic skills; (2) life skills support, for students who primarily need assistance with development of skills for independent living; (3) emotional support, for students who primarily need assistance with social or emotional development; (4) deaf or hearing impaired support, for students who primarily need assistance with deafness; (5) blind or visually impaired support, for students who primarily need assistance with blindness; (6) physical support, for students who primarily require physical assistance in the learning environment; (7) autistic support, for students who primarily need assistance in the areas affected by autism spectrum disorders; and (8) multiple disabilities support, for students who primarily need assistance in multiple areas affected by their disabilities.
Related services are designed to enable the child to participate in or access his or her program of special education. Examples of related services include, but are not limited to, speech and language therapy, occupational therapy, physical therapy, nursing services, audiologist services, counseling, and family training.
The public school, in conjunction with the parents, determines the type and intensity of special education and related services that a particular child needs based exclusively on the unique program of special education and related services that the school develops for that child. The child’s program is described in writing in an Individualized Education Program, or “IEP,” which is developed by an IEP team consisting of educators, parents, and other persons with special expertise or familiarity with the child. The parents of the child have the right to be notified of and to participate in all meetings of their child’s IEP team. The IEP is revised as often as circumstances warrant, and is reviewed at least annually. The law requires that the program and placement of the child, as described in the IEP, be reasonably calculated to ensure meaningful educational progress to the student at all times. IEPs contain, at a minimum, a statement of present levels of educational performance, an enumeration of the annual goals and objectives established for the child, and a statement of the special education and related services that the child needs to make meaningful educational progress. For children aged sixteen (16) and older, the IEP must also include an appropriate transition plan to assist in the attainment of post-secondary objectives. Pennsylvania Virtual Charter School must invite the child to the IEP team meeting at which the transition plan is developed.
Each educational agency must establish and implement procedures to locate, identify and evaluate children suspected of being eligible for special education. These procedures involve screening activities which include, but are not limited to: review of group-based data (cumulative records, enrollment records, health records, and report cards); hearing screening (at kindergarten, first, second and third grades); vision screening (every grade level); motor screening; and speech and language screening.
Except as indicated above or otherwise announced publicly, screening activities take place in an on-going fashion throughout the school year. Screening is conducted at Pennsylvania Virtual Charter School unless other arrangements are necessary.
If parents need additional information regarding the purpose, time, and location of screening activities, they should call or write the Chief Executive Officer of Pennsylvania Virtual Charter School at:
Screening activities are often undertaken before Pennsylvania Virtual Charter School refers most children for a multi-disciplinary team evaluation. When concerns raised either by school staff or parents warrant screening, the child is referred to a “Response to Intervention team”, sometimes called the “RTI Team” or the “Early Intervening Team”. The RTI Team is responsible for assessing the current achievement and performance of the child, for implementing research-based interventions to address concerns raised, and for assessing the effectiveness of those interventions. If the concern that resulted in the referral can be addressed without special education services, or is the result of the lack of English proficiency or appropriate instruction, the RTI Team will recommend interventions other than multi-disciplinary team evaluation. Parents nevertheless have the right to request a multi-disciplinary team evaluation at any time, regardless of the outcome of the screening process.
When screening indicates that a student may be eligible for special education, Pennsylvania Virtual Charter School will seek parental consent to conduct an evaluation. “Evaluation” means procedures used in the determination of whether a child has a disability and the nature and extent of the special education and related services needed by the child. The term “evaluation” refers to procedures used selectively with an individual child and does not indicate basic tests administered to or procedures used with all children. Before the public school can proceed with an evaluation, it must notify the parents in writing of the specific types of testing and assessment it proposes to conduct, of the date and time of the evaluation, and of the parents’ rights. The evaluation cannot begin until the parent has signed the written notice indicating that he or she consents to the proposed testing and assessments and has returned the notice to the public school. Once parental consent for evaluation is obtained, the school has timelines and procedures specified by law that it must follow. The law contains additional provisions and due process protections regarding situations in which parental consent for an initial evaluation is absent or refused discussed more fully below and in the Procedural Safeguards Notice.
This evaluation is conducted by a Multi-Disciplinary Team (MDT) which includes a teacher, other qualified professionals who work with the child, and the parents. The MDE process must be conducted in accordance with specific timelines and must include protection-in-evaluation procedures. For example, tests and procedures used as part of the Multi-Disciplinary Evaluation may not be racially or culturally biased.
The MDE process results in a written evaluation report called an Evaluation Report (“ER”). This report makes recommendations about a student’s eligibility for special education based on the presence of a disability and the need for specially designed instruction.
Parents who think their child is eligible for special education may request, at any time, that Pennsylvania Virtual Charter School conduct a Multi-Disciplinary Evaluation. Requests for a Multi-Disciplinary Evaluation must be made in writing to the Chief Executive Officer of Pennsylvania Virtual Charter School at 1 West Main Street, Suite 400, Norristown, PA 19401.
If a parent makes an oral request for a Multi-Disciplinary Evaluation, Pennsylvania Virtual Charter School shall provide the parent with a form for that purpose. If the public school denies the parents’ request for an evaluation, the parents have the right to challenge the denial through an impartial hearing or through voluntary alternative dispute resolution, such as mediation.
The determination of whether a student is eligible for special education is made by an Individualized Education Program (IEP) team. A single test or procedure may not be the sole factor in determining that a child is exceptional. The IEP team includes: the parents of a child with a disability; not less than one regular education teacher, if the child is, or may be, participating in the regular education environment; not less than one special education teacher, or when appropriate, not less than one special education provider; a representative of the school who is qualified to provide or supervise the provision of specially designed instruction to meet the unique needs of children with disabilities, is knowledgeable about the general education curriculum, and is knowledgeable about the availability of resources of the School; an individual who can interpret the instructional implications of evaluation results, who may be a member of the team described above; other individuals, at the discretion of the parent or the agency, who have knowledge or special expertise regarding the child, including related services personnel as appropriate; and whenever appropriate, a child with a disability. If the student is determined to be eligible for special education, the IEP team develops a written education plan called an IEP. The IEP shall be based in part on the results of the Multi-Disciplinary Evaluation. The IEP team may decide that a student is not eligible for special education. In that instance, recommendations for educational programming in regular education may be developed from the ER.
An IEP describes a student’s current educational levels, goals, objectives, and the individualized programs and services, which the student will receive. IEPs are reviewed on an annual basis, at minimum the IEP team will make decisions about the type of services, the level of intervention, and the location of intervention.
Placement must be made in the least restrictive environment in which the student’s needs can be met with special education and related services. All students with disabilities must be educated to the maximum extent appropriate with children who are not disabled.
Students who are not eligible to receive special education programs and services may qualify as handicapped students and, therefore, be protected under federal statutes and regulations intended to prevent discrimination (in particular, 34 CFR Part 104 and 28 CFR Part 35). Pennsylvania Virtual Charter School must ensure that qualified handicapped students have equal opportunity to participate in the school program and extracurricular activities to the maximum extent appropriate for each individual student. In compliance with federal law, Pennsylvania Virtual Charter School will provide to each protected handicapped student, without discrimination or cost to the student or family, those related aids, services or accommodations which are needed to provide equal opportunity to participate in and obtain the benefits of the school program and extracurricular activities to the maximum extent appropriate to the student’s abilities. In order to qualify as a protected handicapped student, the child must be of school age with a physical or mental disability that substantially limits or prohibits participation in or access to an aspect of the school program.
These services and protections for “protected handicapped students” may be distinct from those applicable to eligible or thought-to-be eligible students. Pennsylvania Virtual Charter School or the parent may initiate an evaluation if they believe a student is a protected handicapped student. For further information on the evaluation procedures and provision of services to protected handicapped students, parents should contact the school Chief Executive Officer.
State and federal law grant many rights, protections and procedural safeguards to children with disabilities and their parents, including mediation and due process hearing request rights. A written summary of those procedural safeguards and protections is available to parents and students upon request to the Chief Executive Officer of Pennsylvania Virtual Charter School.
Pennsylvania Virtual Charter School must notify parents in writing whenever it: (1) Proposes to initiate or change the identification, evaluation, or educational placement of the child; (2) Refuses to initiate or change the identification, evaluation, or educational placement of the child; (3) Proposes or refuses to make changes regarding the provision of a free appropriate public education (FAPE) to the child; and (4) No later than the date on which the decision to take disciplinary action is made, a charter school must notify the parent of that decision and of all available procedural safeguards. Such notice must be accompanied by a full written description of the parents’ rights.
Prior written notices must be written in the native language of the parent, unless it clearly is not feasible to do so. Prior written notice must contain:
*In Pennsylvania, prior written notice is provided on the form “Notice of Recommended Educational Placement” (NOREP).
A copy of the Procedural Safeguards Notice must be given to the parent one (1) time per year, except that a copy must also be given to the parent:
The Procedural Safeguards Notice must include a full explanation of available procedural safeguards, written in the native language of the parent, unless it is clearly not feasible to do so. It must be written in an easily understandable manner, describing the procedural safeguards available relating to:
Parental consent must be obtained by the charter school prior to conducting an initial evaluation to determine if the child qualifies as a child with a disability, and before providing special education and related services to the child. Parental consent for an evaluation shall not be construed as consent for their child to receive special education and related services. The screening of a child by a teacher or specialist to determine appropriate instructional strategies for curriculum implementation is not considered to be an evaluation for eligibility for special education and related services; therefore, parental consent is not required in this instance.
The Individuals with Disabilities Education Improvement Act of 2004 contains language about seeking parental permission for initial evaluations when a child is a ward of the State. In Pennsylvania, however, if a child is designated a ward of the State, the whereabouts of the parent is not known or the rights of the parent have been terminated in accordance with State law; someone other than the parent has been designated to make educational decisions for the child. Consent for an initial evaluation should therefore be obtained from the individual designated to represent the interests of the child.
If the parent does not provide consent for an initial evaluation, or the parent fails to respond to a request to provide consent, the charter school may pursue an initial evaluation of the child through mediation or due process procedures. If the parent does not provide consent for the child to receive special education and related services, the charter school will not provide special education and related services, nor will the charter school use mediation or due process procedures.
If the parent refuses to consent to the receipt of special education and related services, or the parent fails to respond to a request to provide consent, and the child does not receive special education and related services as a result, the charter school will not be in violation of its requirement to make a free appropriate public education (FAPE) available to the child for its failure to provide special education and related services to the child; and the charter school does not have to convene an Individualized Education Program (IEP) meeting or develop an Individualized Education Program (IEP) for the child regarding special education and related services.
The parent has the right to obtain an independent educational evaluation of their child at public expense if the parent disagrees with an evaluation obtained by the charter school. An independent evaluation is an evaluation by a qualified professional who is not an employee of the charter school responsible for the child.
Once the parent requests an independent evaluation at public expense, the charter school must, without unnecessary delay, either request a due process hearing to demonstrate that its evaluation is appropriate, or ensure that an independent evaluation is conducted. If a due process hearing is requested by the school, and the final decision is that the charter school’s evaluation is appropriate, the parent still has the right to an independent evaluation, but not at public expense.
If the parent asks for an independent evaluation, the charter school may ask for the parent’s reason why he or she objects to the evaluation. However, the parent is not required to give this explanation and the charter school may not unreasonably delay either providing the independent evaluation at public expense or requesting a due process hearing.
If the parent obtains an independent evaluation at private expense, the results of the evaluation must be considered by the charter school if the evaluation meets charter school criteria, in any decision made with respect to the provision of a free appropriate public education (FAPE) to the child; and may be presented as evidence at a due process hearing.
If a Hearing Officer requests an independent evaluation as part of a hearing, the cost of the evaluation must be at public expense. The charter school will provide, on request, information about where an independent evaluation may be obtained.
Whenever an independent evaluation is conducted 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 charter school uses when it initiates an evaluation, to the extent those criteria are consistent with the parent’s right to an independent evaluation.
When disputes arise between the parent and the charter school, the following formal systems are available to assist in resolving the dispute:
Mediation is a voluntary process in which the parent and charter school involved in a dispute regarding special education both agree to obtain the assistance of an impartial mediator to resolve the conflict. Mediation is available for parties to special education disputes involving any special education matter, including matters arising prior to the filing of a Due Process Hearing Request. Mediation can be requested alone, or in conjunction with due process. Mediation cannot be used to deny or delay the parent’s right to a due process hearing or to deny any other rights of the parent.
The Pennsylvania Department of Education’s Bureau of Special Education, through the Office for Dispute Resolution, maintains a list of individuals who are qualified mediators and knowledgeable in laws and regulations regarding the provision of special education and related services. Mediators are not employed by any local or state agency providing direct services to the child, and the mediator must not have a personal conflict of interest. The mediator’s services are paid for by the Pennsylvania Department of Education.
Mediations are scheduled in a timely manner and are held in a location that is convenient for the parties to the dispute. Discussions that occur during the mediation process are confidential and may not be used as evidence in any subsequent due process hearing or court proceeding. The mediator may not be called as a witness in future proceedings.
In the event the parties resolve the dispute through mediation, they are required to execute a legally-binding agreement that sets forth the resolution terms; states that all discussions that occurred during the mediation process must be confidential and may not be used as evidence in any subsequent due process hearing or civil proceedings; and is signed by both the parent and a representative of the charter school who has the authority to bind the school. This agreement is enforceable by a court.
The parent or charter school may request a due process hearing with respect to any matter relating to the identification, evaluation, or educational placement of the child or the provision of a free appropriate public education (FAPE) by filing a “Due Process Hearing Request”. A due process hearing will not proceed until all required information is provided and procedures followed.
The parent or charter school must request a due process hearing through the filing of a Due Process Hearing Request within two (2) years of the date the parent or the charter school knew or should have known about the alleged action that forms the basis of the Due Process Hearing Request.
There are limited exceptions to this timeline. This timeline will not apply to the parent if the parent was prevented from requesting the due process hearing due to the specific misrepresentations by the charter school that it had resolved the problem forming the basis of the Due Process Hearing Request; or if the charter school withheld information from the parent which was required to be provided to the parent.
A copy of the Due Process Hearing Request must be sent to the other party and, at the same time, to the Office for Dispute Resolution.
The Due Process Hearing Request must contain the following information:
The Due Process Hearing Request will be considered to be sufficient unless the party receiving it notifies the Hearing Officer and the other party in writing within fifteen (15) days of receipt that the receiving party believes the Request does not meet the requirements listed above.
If the charter school has not sent a prior written notice (NOREP) to the parent regarding the subject matter contained in the parent’s Due Process Hearing Request, the charter school must send to the parent, within ten (10) days of receiving the Due Process Hearing Request, a response including the following information:
Filing this response to the parent’s Due Process Hearing Request does not prevent the charter school from challenging the sufficiency of the Due Process Hearing Request. If the charter school has already sent prior notice (NOREP) to the parent, or it is the parent receiving the Due Process Hearing Request, then a response to the Due Process Hearing Request must be sent to the other side within ten (10) days of receipt of the request. The response should specifically address the issues raised in the Due Process Hearing Request.
Within five (5) days of receiving a party’s challenge to the sufficiency of the Due Process Hearing Request, the Hearing Officer must make a determination based solely on the information contained within the Request, whether the Request meets requirements. The Hearing Officer must immediately notify both parties in writing of his or her determination.
Either the parent or a charter school may amend its Due Process Hearing Request only if:
The party requesting the due process hearing is not permitted to raise issues at the due process hearing that were not raised in the Due Process Hearing Request (or Amended Due Process Hearing Request) unless the other party agrees otherwise.
Before a due process hearing will take place, the charter school must convene a preliminary meeting with the parent and the relevant member or members of the Individualized Education Program (IEP) Team who have specific knowledge of the facts identified in the Due Process Hearing Request in an attempt to resolve those issues without the need to proceed to a due process hearing. This preliminary meeting must be convened within fifteen (15) days of the charter school’s receiving the parent’s Due Process Hearing Request. A representative of the charter school who has decision-making authority must be present at this meeting. The charter school may not have an attorney attend the meeting unless the parent is also accompanied by an attorney. At the meeting, the parent will discuss the Due Process Hearing Request, and the charter school will be provided the opportunity to resolve the Due Process Hearing Request, unless the parent and the charter school agree, in writing, to waive this meeting, or agree to use the mediation process.
If the parent and charter school resolve the issues in the Due Process Hearing Request at the preliminary meeting, they must put the agreement terms in writing, and both the parent and a representative of the charter school who has the authority to bind the charter school must sign the agreement. The agreement is a legally-binding document and may be enforced by a court.
Either the parent or charter school may void the agreement within three (3) business days of the date of the agreement. After three (3) days, the agreement is binding on both parties.
When carrying out administrative matters such as scheduling, exchange of witness lists, and status conferences, the parent and charter school may agree to use alternative means of meeting participation, such as video conferences and conference calls.
If the charter school has not resolved the Due Process Hearing Request within thirty (30) days of receiving it, or within thirty (30) days of receiving the Amended Due Process Hearing Request, the due process hearing may proceed and applicable timelines commence. The timeline for completion of due process hearings is forty-five (45) days, unless the Hearing Officer grants specific extensions of time at the request of either party.
Not less than five (5) business days prior to a due process hearing, each party must disclose to all other parties all evaluations completed by that date, and recommendations based on the offering party’s evaluations that the party intends to use at the due process hearing. Failure to disclose this information may result in a Hearing Officer prohibiting the party from introducing the information at the hearing unless the other party consents to its introduction.
The hearing for a child with a disability or thought to be a child with a disability must be conducted and held in the charter school at a place and time reasonably convenient to the parent and child involved.
A decision made by a Hearing Officer must be made on substantive grounds, based upon a determination of whether the child received a free appropriate public education (FAPE). In disputes alleging a procedural violation, a Hearing Officer may find that a child did not receive a free appropriate public education (FAPE) only if the procedural inadequacies impeded the child’s right to a free appropriate public education (FAPE); significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a free appropriate public education (FAPE) to the parent’s child; or caused a deprivation of educational benefits.
A Hearing Officer may still order a charter school to comply with procedural requirements even if the Hearing Officer determines that the child received a free appropriate public education (FAPE). The parent may still file a Complaint with the Bureau of Special Education regarding procedural violations.
In most cases, a party dissatisfied by the findings and decision of a Hearing Officer in a due process hearing may appeal to a panel appointed by the Pennsylvania Department of Education (called “the Appellate Panel Officers” or “Appeals Panel”). For a school-aged child, the only exception to the right to appeal to the Appeals Panel is when the due process hearing addresses Section 504/Chapter 15 issues only. In that case, any appeal from a Hearing Officer order goes directly to court, not the Appeals Panel. If the due process hearing addresses both Section 504/Chapter 15 cases and other matters, that portion of the case dealing with non-Section 504 issues may be appealed to the Appeals Panel.
For early intervention preschool special education cases, the Appeals Panel review is not available and, therefore, any appeal from a Hearing Officer’s order should go directly to court. In addition, it must be noted that Section 504/Chapter 15 issues do not apply to early intervention preschool cases.
On appeal, the Appeals Panel will do the following:
Appeals Panel decisions are completed within thirty (30) days after request for review, unless at the request of either party the Appeals Panel grants a specific extension to file Exceptions or Answers to them. Requests for a specific extension of time in which to file appeal documents with the Appeals Panel must be directed to the particular Appeals Panel assigned to the matter. Contact information can be obtained from the Office for Dispute Resolution. The decision by the Appeals Panel is final, unless a party brings a civil action under the procedures described below.
A copy of the Appeals Panel Decision, with the child’s name removed from the Decision, is made available to the public, as required by law, through posting on the Office for Dispute Resolution webpage, and through dissemination to the State Special Education Advisory Panel. Questions regarding documents posted on the webpage should be directed to the Office for Dispute Resolution.
Either the parent or charter school who disagrees with the findings and decision of the Hearing Officer (in the case of Section 504/Chapter 15 cases and early intervention cases) or the Appeals Panel (for all other cases) has the right to file an appeal in state or federal court. Sometimes the issues in a due process case deal not only with special education issues, but also regarding a child’s status and/or claim as a gifted child. In that instance, the final order of the Appeals Panel -- to the extent it deals with issues of giftedness -- can only be appealed to Commonwealth Court. For all other appeals, the party filing an appeal is encouraged to seek legal counsel to determine the appropriate court with which to file an appeal. A party filing an appeal to state or federal court has ninety (90) days from the date of the Hearing Officer decision in the case of Section 504/Chapter 15 and early intervention cases to do so, and for all other cases, 90 days from the date of the appeals panel decision in which to file an appeal to state or federal court.
A court, in its discretion, may award reasonable attorneys’ fees as part of the costs:
Fees awarded will be based on rates prevailing in the community in which the action or proceeding arose for the kind and quantity of attorney services furnished.
The federal law imposes certain requirements upon the parent and charter school and in some circumstances may limit attorney fee awards. Parents should consult with their legal counsel regarding these matters. The following rules apply:
Attorneys’ fees may not be awarded and related costs may not be reimbursed in any action or proceeding for services performed subsequent to the time of a written offer of settlement to the parent if the offer is made within the time prescribed by Rule 68 of the Federal Rules of Civil Procedures, or, in the case of an administrative hearing, at any time more than ten (10) days before the proceeding begins; the offer is not accepted within ten (10) days; and the court finds that the relief finally obtained by the parent is not more favorable to the parent than the offer of settlement.
An award of attorneys’ fees and related costs may be made to the parent who is the prevailing party and who was substantially justified in rejecting the settlement offer.
Attorneys’ fees may not be awarded relating to any meeting of the Individualized Education Program (IEP) team unless the meeting is convened as a result of an administrative proceeding or judicial action.
A due process resolution session is not considered to be a meeting convened as a result of an administrative hearing or judicial action, nor an administrative hearing or judicial action for purposes of reimbursing attorneys’ fees.
The Court may reduce the amount of any attorneys’ fee award when:
These reductions do not apply in any action or proceeding if the court finds that the State or charter school reasonably protracted the final resolution of the action or proceeding.
Except for discipline cases, which have specific rules, while the due process case (including an appeal to the Appeals Panel) or appeal in court is occurring, the child must remain in his or her present educational placement unless the parent and charter school agree otherwise. If the decision of the Appeals Panel agrees with the child’s parent that a change of placement is appropriate, that placement must be treated as an agreement between the charter school and the parent. If the due process hearing involves an application for initial admission to public school, the child, with the parental consent, must be placed in the public school program until completion of all the proceedings, unless the parent and charter school agree otherwise.
If the parent of a child with a disability, who previously received special education and related services under the authority of a charter school, enrolls the child in a private school without the consent of or referral by the charter school, a court or a Hearing Officer may require the charter school to reimburse the parent for the cost of that enrollment if the court or Hearing Officer finds that the charter school had not made free appropriate public education (FAPE) available to the child in a timely manner prior to that enrollment. However, the cost of reimbursement may be reduced or denied if:
Despite the requirement that the charter school provide prior written notice, the cost of reimbursement will not be reduced or denied for failure to provide such notice if:
School personnel may consider any unique circumstances on a case-by-case basis when determining whether to order a change in placement for a child with a disability who violates a code of student conduct.
According to federal law, school personnel may remove a child with a disability who violates a code of student conduct from their current placement to an appropriate interim alternative educational setting, another setting, or suspension, for not more than 10 school days (to the extent such alternatives are applied to children without disabilities). The determination of an interim alternative educational setting is made by the IEP team.
A change in placement requires a prior written notice (a Notice of Recommended Educational Placement or “NOREP”). The exclusion of a child with mental retardation who attends a charter school, for any amount of time is considered to be a change in placement and requires prior written notice (assuming the disciplinary event does not involve drugs, weapons and/or serious bodily injury). If the parent does not agree with the change in placement on the Notice of Recommended Educational Placement (NOREP), the child remains in the existing placement until due process is completed, unless school officials take further action and go to court. A removal from school is not a change in placement for a child who is identified with mental retardation when the disciplinary event involves weapons, drugs and/or serious bodily injury.
If school personnel seek to order a change in placement that would exceed (ten) 10 school days and the behavior that gave rise to the violation of the school code is determined not to be a manifestation of the child’s disability, the relevant disciplinary procedures applicable to children without disabilities may be applied to the child in the same manner and for the same duration in which the procedures would be applied to children without disabilities although it may be provided in an interim alternative educational setting.
A child with a disability who is removed from the child’s current placement (irrespective of whether the behavior is determined to be a manifestation of the child’s disability) shall: (i) continue to receive educational services, as provided, so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP; and (ii) receive, as appropriate, a functional behavioral assessment, behavioral intervention services and modifications, that are designed to address the behavior violation so that it does not recur.
In general, within (ten) 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct, the school, the parent, and relevant members of the IEP Team (as determined by the parent and the School) shall review all relevant information in the student’s file, including the child’s IEP, any teacher observations, and any relevant information provided by the parents to determine—
If the School, the parent, and relevant members of the IEP Team determine that either subclause (I) or (II) is applicable for the child, the conduct shall be determined to be a manifestation of the child’s disability.
If the school, the parent, and relevant members of the IEP Team make the determination that the conduct was a manifestation of the child’s disability, the IEP Team shall (i) conduct a functional behavioral assessment, and implement a behavioral intervention plan for such child, provided that the School had not conducted such assessment prior to such determination before the behavior that resulted in a change in placement described above; (ii) in the situation where a behavioral intervention plan has been developed, review the behavioral intervention plan if the child already has such a behavioral intervention plan, and modify it, as necessary, to address the behavior; and (iii) return the child to the placement from which the child was removed, unless the parent and the School agree to a change of placement as part of the modification of the behavioral intervention plan.
School personnel may remove a student to an interim alternative educational setting for not more than 45 school days without regard to whether the behavior is determined to be a manifestation of the child’s disability, in cases where a child— (i) carries or possesses a weapon to or at school, on school premises, or to or at a school function under the jurisdiction of a State or School; (ii) knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school, on school premises, or at a school function under the jurisdiction of a State or local educational agency; or (iii) has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of a State or local educational agency.
Not later than the date on which the decision to take disciplinary action is made, the School shall notify the parents of that decision, and of all procedural safeguards accorded. The interim alternative educational setting shall be determined by the IEP Team.
The parent of a child with a disability who disagrees with any decision regarding placement, or the manifestation determination, or a School that believes that maintaining the current placement of the child is substantially likely to result in injury to the child or to others, may request a hearing.
A hearing officer shall hear, and make a determination regarding, an appeal requested.
In making the determination, the hearing officer may order a change in placement of a child with a disability. In such situations, the hearing officer may— (I) return a child with a disability to the placement from which the child was removed; or (II) order a change in placement of a child with a disability to an appropriate interim alternative educational setting for not more than 45 school days if the hearing officer determines that maintaining the current placement of such child is substantially likely to result in injury to the child or to others.
When an appeal has been requested by either the parent or the School— (A) the child shall remain in the interim alternative educational setting pending the decision of the hearing officer or until the expiration of the time period provided, whichever occurs first, unless the parent and the School agree otherwise; and (B) the School shall arrange for an expedited hearing, which shall occur within 20 school days of the date the hearing is requested and shall result in a determination within (ten) 10 school days after the hearing.
A child who has not been determined to be eligible for special education and related services and who has engaged in behavior that violates a code of student conduct, may assert any of the protections provided for eligible students if the School had knowledge that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred.
A School shall be deemed to have knowledge that a child is a child with a disability if, before the behavior that precipitated the disciplinary action occurred— (i) the parent of the child has expressed concern in writing to supervisory or administrative personnel of the School, or a teacher of the child, that the child is in need of special education and related services; (ii) the parent of the child has requested an evaluation of the child; or (iii) the teacher of the child, or other personnel of the School, has expressed specific concerns about a pattern of behavior demonstrated by the child, directly to the director of special education of such agency or to other supervisory personnel of the agency.
A School shall not be deemed to have knowledge that the child is a child with a disability if the parent of the child has not allowed an evaluation of the child or has refused services or the child has been evaluated and it was determined that the child was not a child with a disability.
If a School does not have knowledge that a child is a child with a disability prior to taking disciplinary measures against the child, the child may be subjected to disciplinary measures applied to children without disabilities who engaged in comparable behaviors.
If a request is made for an evaluation of a child during the time period in which the child is subjected to disciplinary measures; the evaluation shall be conducted in an expedited manner. If the child is determined to be a child with a disability, taking into consideration information from the evaluation conducted by the school and information provided by the parents, the school shall provide special education and related services except that, pending the results of the evaluation, the child shall remain in the educational placement determined by school authorities.
Nothing shall be construed to prohibit the school from reporting a crime committed by a child with a disability to appropriate authorities or to prevent State law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability.
A school reporting a crime committed by a child with a disability shall ensure that copies of the special education and disciplinary records of the child are transmitted for consideration by the appropriate authorities to whom the School reports the crime.
The term ‘controlled substance’ above means a drug or other substance identified under schedule I, II, III, IV, or V in section 202(c) of the Controlled Substances Act (21 U.S.C. §812(c)).
The term ‘illegal drug’ above means a controlled substance but does not include a controlled substance that is legally possessed or used under the supervision of a licensed health-care professional or that is legally possessed or used under any other authority under that Act or under any other provision of Federal law.
The term ‘weapon’ above has the meaning given the term ‘dangerous weapon’ under Section 930(g)(2) of Title 18, United States Code.
The term ‘serious bodily injury’ above has the meaning given the term ‘serious bodily injury’ under paragraph (3) of subsection (h) of Section 1365 of Title 18, United States Code.
Each charter school must ensure that an individual is assigned to act as a surrogate of a child when no parent or person acting as the parent can be identified, or the school, after reasonable efforts, cannot locate the parent. The charter school must have a method of determining whether or not a child needs a surrogate parent, and for assigning a surrogate parent to the child.
The charter school may select a surrogate parent in any way permitted under State law, but must ensure that a person selected as a surrogate is not an employee of the State Educational Agency, the charter school or any other agency that is involved in the education or care of the child. For a child who is a ward of the State, a surrogate may be appointed by a judge overseeing the child’s care or by the school.
For a homeless youth, not in the physical custody of the parent or guardian, the charter school must appoint a surrogate. The State Educational Agency must make reasonable efforts to ensure the assignment of a surrogate not more than thirty (30) days after there is a determination by the charter school that the child needs a surrogate.
The charter school must permit the parent to inspect and review all educational records relating to his/her child with respect to the identification, evaluation and educational placement of the child, as well as the provision of a free appropriate public education (FAPE) to the child, which are collected, maintained, or used by the charter school. The charter school must comply with a request without unnecessary delay and before any meeting regarding an individual education program or hearing relating to the identification, evaluation, or placement of the child, and in no case more than forty-five (45) days after the request has been made.
The parent’s right to inspect and review education records under this section include the right to a response from the participating agency to a reasonable request for explanations and interpretations of the records; the right to have a representative inspect and review the records; and the right to request that the charter school provide copies of the records containing the information if failure to provide these copies would effectively prevent the parent from exercising their right to inspect and review the records.
The charter school may presume that the parent has authority to inspect and review records relating to their child unless the charter school has been advised that the parent does not have the authority under applicable State law governing such matters as guardianship, separation and divorce.
If any educational record includes information on more than one child, the parent has the right to inspect and review only the information relating to his/her child or to be informed of that specific information.
The charter school must provide the parent, on request, a list of the types and locations of educational records collected, maintained, or used by the charter school.
The charter school may not charge a fee to search for or to retrieve information, but may charge a fee for copies of records which are made for the parent if the fee does not effectively prevent the parent from exercising his/her right to inspect and review those records.
The charter school must keep a record of parties obtaining access to educational records collected, maintained, or used (except access by the parent and authorized employees of the participating school), including the name of the party, the date access was given, and the purpose for which the party is authorized to use the records.
If the parent believes that information in educational records collected, maintained, or used under this part is inaccurate or misleading or violates the privacy or other rights of his/her child, he/she may request the charter school that maintains the information to amend this information. The charter school must decide whether to amend the information in accordance with the request within a reasonable period of time of receipt of the request. If the charter school decides to refuse to amend the information in accordance with the request, it must inform the parent of the refusal and of his/her right to a hearing as set forth below.
The charter school must, on request, provide an opportunity for a hearing to challenge information in educational records to ensure that it is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of the child.
The hearing is conducted by the school, not a due process Hearing Officer. If, as a result of the hearing, the charter school decides that 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. If, as a result of the hearing, the charter school 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 right to place in the records it maintains on their child a statement commenting on the information or setting forth any reasons for disagreeing with the decision of the charter school. An explanation placed in a child’s records under this section must be maintained by the charter school as part of the records of the child as long as the record or contested portion is maintained by the charter school; if the records of the child or the contested portion is disclosed by the charter school to any party, the explanation must also be disclosed to the party.
Parents who believe that the educational rights of their child are being violated may file a Consumer Request Intake Form with the Bureau of Special Education, Pennsylvania Department of Education, requesting that this agency investigate the alleged violation. Requests for complaint investigation must be in writing, and should be sent to:
Parents may request a Consumer Request Intake Form by calling the Bureau of Special Education’s Consult Line, a parent helpline, at 1-800-879-2301.
The Bureau of Special Education’s Compliance Advisor assigned to the region where the charter school is located will investigate the complaint in a timely manner to determine whether the charter school has failed to comply with State and/or federal laws and regulations. The investigation may include obtaining written or oral information and an on-site visit. Except in extenuating circumstances, the Bureau of Special Education’s Compliance Advisor will complete the complaint investigation and issue a report of findings within sixty (60) calendar days.
If a written complaint is received that is also the subject of a due process hearing, or the written complaint contains multiple issues, of which one or more are part of that due process hearing, the State must set aside any part of the complaint that is being addressed in the due process hearing, until the conclusion of the hearing. However, any issue in the Consumer Request Intake Form that is not part of the due process action must be resolved using the time limit and procedures.
If an issue is raised in a Consumer Request Intake Form filed under this section that has previously been decided in a due process hearing involving the same parties, the hearing decision is binding and the Bureau of Special Education must inform the person filing the Consumer Request Intake Form of this fact.
A Consumer Request Intake Form Alleging a Charter School Failure to Implement a Due Process Decision must be Resolved by the Bureau of Special Education, not a Due Process Hearing Officer.
Either an organization or an individual may file a signed written Consumer Request Intake Form. The Consumer Request Intake Form must include a statement that a public agency has violated a requirement of Part B of the Individuals with Disabilities Education Improvement Act of 2004 (IDEA 2004), or applicable State regulations, and the facts on which the statement is based. The Consumer Request Intake Form must allege a violation that occurred not more than one (1) year prior to the date that the Consumer Request Intake Form is received, unless a longer period of time is reasonable because the violation is continuing, or the person filing the Consumer Request Intake Form is requesting compensatory education for a violation that occurred not more than three (3) years prior to the date the Consumer Request Intake Form is received.
This Annual Notice has been written in accordance with The Individuals with Disabilities Education Improvement Act of 2004. Federal regulations underlying IDEA 2004 2004 have recently been issued so to the extent the new federal regulations alter the information contained within this Notice, you will be informed.
THE CONTENT OF THIS NOTICE HAS BEEN WRITTEN IN STRAIGHTFORWARD, SIMPLE LANGUAGE. IF A PERSON DOES NOT UNDERSTAND ANY OF THIS NOTICE, HE/SHE SHOULD ASK THE CHIEF EXECUTIVE OFFICER OF PENNSYLVANIA VIRTUAL CHARTER SCHOOL FOR AN EXPLANATION. PENNSYLVANIA VIRTUAL CHARTER SCHOOL WILL ARRANGE FOR AN INTERPRETER FOR PARENTS WITH LIMITED ENGLISH PROFICIENCY. IF A PARENT IS DEAF OR BLIND OR HAS NO WRITTEN LANGUAGE, THE SCHOOL WILL ARRANGE FOR COMMUNICATION OF THIS NOTICE IN THE MODE NORMALLY USED BY THE PARENT (E.G., SIGN LANGUAGE, BRAILLE, OR ORAL COMMUNICATION).
THIS NOTICE IS ONLY A SUMMARY OF THE SPECIAL EDUCATION SERVICES, EVALUATION AND SCREENING ACTIVITIES, AND RIGHTS AND PROTECTIONS PERTAINING TO CHILDREN WITH DISABILITIES, CHILDREN THOUGHT TO BE DISABLED AND THEIR PARENTS, AND IS ONLY A SUMMARY OF THE CONFIDENTIALITY RIGHTS REGARDING STUDENT INFORMATION.
FOR MORE INFORMATION OR TO REQUEST EVALUATION OR SCREENING OF A PENNSYLVANIA VIRTUAL CHARTER SCHOOL STUDENT CONTACT THE CHIEF EXECUTIVE OFFICER OF PENNSYLVANIA VIRTUAL CHARTER SCHOOL AT:
PENNSYLVANIA VIRTUAL CHARTER SCHOOL
1 WEST MAIN STREET, SUITE 400
NORRISTOWN, PA 19401.
NOTHING IN THIS NOTICE IS INTENDED TO CONFLICT WITH OR SUPPLANT THE INFORMATION CONTAINED IN THE PENNSYLVANIA DEPARTMENT OF EDUCATION’S CURRENT “PROCEDURAL SAFEGUARDS NOTICE” WHICH IS AVAILABLE THROUGH THE SCHOOL FOR YOUR REVIEW, OR WITH APPLICABLE STATE AND/OR FEDERAL LAWS.