Procedural Safeguards and Complaint Resolution Under IDEA

Procedural Safeguards

The procedural safeguards required by the Individuals with Disabilities Education Act (IDEA) are intended to protect the interests of families and children with special needs, as well as the special education and the early intervention systems. Procedural safeguards are the checks and balances of the system, not a piece separate from the system.

Early intervention and special education personnel are legally obligated to explain procedural safeguards to families and to support an active adherence to and understanding of these safeguards for all involved.

In accordance with a new requirement in IDEA 2004, the Office of Special Education Programs, US Department of Education developed model forms for Part B, Special Education Programs. These model forms may be used by schools but are not required.

• Notice of Procedural Safeguards:
  Word (DOC: 290kb) | PDF (PDF: 353kb)
• Prior Written Notice:
  Word (DOC: 38kb) | PDF (PDF: 29kb)

Additionally, the Department has prepared a collection of Topic Briefs related to the changes in Part B Procedural Safeguards.

• Procedural Safeguards: Surrogates, Notice and Consent
• Procedural Safeguards: Due Process Hearings
• Mediation
• State Complaint Procedures
• Procedural Safeguards Video Clip

Model forms for Part C Early Intervention Programs will be available when Part C regulations have been issued, probably during 2006-2007.

The rights and procedural safeguards guaranteed under Part C of IDEA provide a framework for a family's experience in early intervention. The document, Assuring the Family's Role on the Early Intervention Team: Explaining Rights and Safeguards (PDF: 140kb) (Second Edition, 2002), helps service providers or parent support and advocacy personnel explain rights and safeguards in a family-friendly manner to assure that family members are fully informed partners in the process.

IDEA 2004 Procedural Safeguards:

• Part B Section 615
• Part C Section 639

Procedural Safeguards Regulations:

• Part B 300.500-300.537 (PDF: 371kb) (link courtesty wrightslaw.com)
• Part C (under development)

State Examples of Information for Families on Rights and Safeguards

Many states have on-line resources informing families of their Rights and Safeguards under Part C and Part B.

Family Educational Rights and Privacy Act (FERPA)

FERPA regulations address such issues as confidentiality, maintaining and sharing educational records and disclosure of information. These regulations apply to both Part B and Part C, because the confidentiality requirements in the Part B of IDEA 34 CFR 300.560 through 300.576) incorporate by reference the regulations in 34 CFR Part 99. Additionally, the confidentiality sections of Part B are also to be used by public agencies to meet the confidentiality requirements under Part C of IDEA 34CFR 303.460). Therefore, FERPA is also incorporated by Part C.

Confidentiality, Disclosure and Records: FERPA and HIPAA was a presentation by Kala Surprenant, US Department of Education, Office of General Counsel at the 2005 OSEP/WESTAT Combined Part C/B Data Meeting, July 17-20 in Washington, DC. The Power Point presentation, and hand-outs, including relevant letters from OSEP and regulations are available.

Mediation

The IDEA Amendments of 2004 (PDF: 422kb) (IDEA '04; P.L. 108-446) strengthened the availability of mediation as an option for resolving individual child complaints by requiring that all states establish and bear the costs of a mediation process for both Part B and Part C programs.

Mediation must be available prior to or after a hearing is requested, and must not delay the hearing process. It is to be a voluntary process, conducted by a qualified and impartial mediator.

IDEA Statute on Mediation:

• Part B Section 615(e)
• Part C Section 639(a)(8)

IDEA Regulations on Mediation:

• Part B 300.506 (PDF: 371kb) (link courtesty wrightslaw.com)
• Part C (under development)

Congress provided the rationale for requiring mediation in the report on IDEA 1997 amendments, P.L. 105-17:

The Committee is aware that, in States where mediation is being used, litigation has been reduced, and parents and schools have resolved their complaints amicably, making decisions with the child's best interest in mind. It is the Committee's strong preference that mediation become the norm for resolving disputes under IDEA.
H.R. Rep. No. 105-95, 105th Cong., 1st Sess. (1997), p. 106.

Mediation in Early Intervention

Under Part C of IDEA, the state lead agency may establish its own mediation system for its Infant and Toddler Program or use the mediation system established by the state education agency for Part B of IDEA. A NECTAS survey of the 50 states describes their approach to providing mediation services.

Consortium for Appropriate Dispute Resolution in Special Education (CADRE)

CADRE is a research and technical assistance center funded by OSEP to develop and provide information and resources related to mediation and other dispute resolution processes. For more information, link to the following resources on CADRE's Web site:

• frequently asked questions (FAQ);
• benefits of mediation;
• state by state listing of mediation coordinators and procedures;
• locating a special education conflict resolution professional;
• Special Education Mediation: A Guide for Parents, available in English, Spanish and Hmong

Conflict Management in Early Intervention

The following journal articles provide more information on the use of conflict management in early intervention. The first one focuses on problem-solving negotiation, while the second one focuses on procedural safeguards and mediation. Together they suggest a comprehensive model for conflict management, including preventative, informal and formal complaint resolution processes. Reprints are available from NECTAC publications.

• Gittler, J., & Hurth, J. (1998). Conflict management in early intervention: Problem-solving negotiation. Infants and Young Children, 11(1), 28-36.
• Gittler, J., & Hurth, J. (1998). Conflict management in early intervention: Procedural safeguards and mediation. Infants and Young Children, 11(1), 15-27.

Dispute Resolution – A Review of Systems in Selected States

by Joy Markowitz, Ed.D., Eileen Ahearn, Ph.D. and Judy Schrag, Ed.D.

Project FORUM collected information from ten states on their current dispute resolution systems and from two additional states on other procedures they have put in place that are known as early dispute resolution options. This document summarizes information from these twelve states. [The full text of this resource is available on-line at nasdse.org (PDF: 439kb) ]

ERIC Digests and FAQs related to Procedural Safeguards

Links to a collection of ERIC Digests and FAQs related to Procedural Safeguards are available on our NECTAC Clearinghouse Web site.