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Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsMay 2016

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14 DE Admin. Code 926
The Secretary of Education seeks the consent of the State Board of Education to amend 14 DE Admin. Code 926 Children with Disabilities Subpart E Procedural Safeguards for Parents and Children. This regulation is being amended to align the regulation with changes made to 14 Del.C. §3131(b) regarding the provision of meeting minutes and prior written notice for proposed changes to the IEP.
Notice of the proposed regulation was published in the News Journal and the Delaware State News on February 1 and March 1, 2016 respectively, in the form hereto attached as Exhibit "A". Comments were received from the Attorney General's Office, Governor's Advisory Council for Exceptional Citizens and the State Council for Persons with Disabilities related to: (1) under inclusive and inconsistent language in §1.5. The Department disagrees as the language is consistent with provisions of procedural safeguards under IDEA. The language is appropriate regarding minutes taken at meetings, reviews or conferences. §1.5 of the regulation does not address child study team meetings as the Council is referring to, thus no change was made, (2) indicating that a "free" digital copy of the meeting minutes be made available by the initiating public agency. The Department agrees the word "free" should be added for clarification, (3) the inclusion of a summary which explains the procedural safeguards instead of stating one is "available." The Department wishes to clarify the difference between notice of meeting (a.k.a. invitation to meeting) (925.22) and prior written notice (926.3.0). SB 33 addressed procedural safeguards provided with the prior written notice. It does not address providing procedural safeguards with the notice of meeting. Within the prior written notice document, a summary of the procedural safeguards, as well as a link for the parent to obtain a full copy of their procedural safeguards will be provided. Thus, no change is needed to the regulation, (4) substituting the word "agency" for "IEP team" in §3.2.6. The Department disagrees with this change as the placement decision is made by the IEP team and not the agency, (5) the suggested amendment to the "authority" section to include 14 Del.C. §§3130, 3133, 3134. The Department agreed and added those code citations to the regulation, and (6) the procedural safeguards available in alternate formats. The Department notes they are available in Spanish and staff are available if additional explanation is necessary. (7) the meeting minute format. The Department notes that a free digital copy will be provided if the LEA records the meeting minutes using a recording device.
The Secretary finds that it is appropriate to amend 14 DE Admin. Code 926 Children with Disabilities Subpart E Procedural Safeguards for Parents and Children in order to align the regulation with changes made to 14 Del.C. §3131(b) regarding Individualized Education Programs (IEP) meeting minutes being digitally provided by the public agency if initiated, as well as prior written notice for proposed changes.
For the foregoing reasons, the Secretary concludes that it is appropriate to amend 14 DE Admin. Code 926 Children with Disabilities Subpart E Procedural Safeguards for Parents and Children.
Therefore, pursuant to 14 Del.C. §122, 14 DE Admin. Code 926 Children with Disabilities Subpart E Procedural Safeguards for Parents and Children attached hereto as Exhibit "B" is hereby amended. Pursuant to the provision of 14 Del.C. §122(e), 14 DE Admin. Code 926 Children with Disabilities Subpart E Procedural Safeguards for Parents and Children hereby amended shall be in effect for a period of five years from the effective date of this order as set forth in Section V. below.
The text of 14 DE Admin. Code 926 Children with Disabilities Subpart E Procedural Safeguards for Parents and Children amended hereby shall be in the form attached hereto as Exhibit "B", and said regulation shall be cited as 14 DE Admin. Code 926 Children with Disabilities Subpart E Procedural Safeguards for Parents and Children in the Administrative Code of Regulations for the Department of Education.
The actions hereinabove referred to were taken by the Secretary pursuant to 14 Del.C. §122 on April 21, 2016. The effective date of this Order shall be ten (10) days from the date this Order is published in the Delaware Register of Regulations.
IT IS SO ORDERED the 21st day of April 2016.
Department of Education
Approved this 21st day of April 2016
Non-regulatory note: Some sections of this regulation are shown in italics. Federal law requires that the Delaware Department of Education identify in writing any Delaware rule, regulation or policy that is a state-imposed requirement rather than a federal requirement (see 20 USC §14079(a)(2)). The italicized portions of this regulation are Delaware-imposed requirements for the education of children with disabilities and are not specifically required by federal special education law and regulations.
1.1 Each LEA and other public agency shall establish, maintain, and implement procedural safeguards that meet the requirements of 926.1.2, 926.2.0 through 926.5.0, 926.10.0, 926.18.0, 926.30.0 through 926.31.0, and 926.33.0 through 926.36.0.
(Authority: 20 U.S.C.1415(a); 14 Del.C. §3110 and 14 Del.C. Ch. 31, Subchapter V)
1.2 Opportunity to Examine Records and Educational Programs
1.2.1 Opportunity to examine records: The parents of a child with a disability, either personally or through representative, shall be afforded an opportunity to inspect and review all relevant education records with respect to the identification, evaluation, and educational placement of the child; and the provision of FAPE to the child.
1.2.3 The parents of a student with a disability shall have the right to visit and observe, either personally or through a representative, their child’s current or proposed educational program. The public agency may require advance notice when parents or guardians wish to visit a proposed educational program.
1.3.1 Each public agency shall provide notice consistent with 14 DE Admin. Code 925.22.1.1 and 925.22.2 to ensure that parents of children with disabilities have the opportunity to participate in meetings described in 1.3.
1.4.1 In implementing the requirements of 1.4, the public agency shall use procedures consistent with the procedures described in 14 DE Admin. Code 925.22.1 through 925.22.2.
1.5 Minutes of Meetings. A parent, a parent’s authorized representative, or any public agency conducting a meeting, review or conference may take minutes of the meeting, review or conference concerning a child with a disability's free and appropriate public education. Minutes may be taken by a disclosed recording device or by a stenographer. The cost of recording the minutes is the responsibility of the person or agency electing to take minutes. Once taken, public agency minutes shall be maintained subject to the confidentiality requirements of these regulations and any other applicable Delaware or federal law. If initiated by the public agency, parents must be offered a [free] digital copy.
(Authority: 20 U.S.C. 1414(e), 1415(b)(1); 14 Del. C. §§3110, 3130 and 3131)
“Independent Educational Evaluation” means an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question.
Public Expense” means that the public agency either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to the parent, consistent with 14 DE Admin. Code 923.3.0. Ensure that an independent educational evaluation is provided at public expense, unless the agency demonstrates in a hearing pursuant to 14 DE Admin. Code 926.7.0 through 926.13.0 that the evaluation obtained by the parent did not meet agency criteria.
2.8 Requests for evaluations by hearing officers. If a hearing panel or a single hearing officer appointed for expedited appeals under 32.0 requests an independent educational evaluation as part of a hearing on a due process complaint, the cost of the evaluation shall be at public expense.
2.10 Except for the criteria described in 2.9, a public agency may not impose conditions or timelines related to obtaining an independent educational evaluation at public expense.
3.1 Notice: Written notice that meets the requirements of 3.2 shall be given to the parents of a child with a disability no less than ten (10) school days before the public agency:
3.1.2 Refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child; and
3.2 Content of notice: The notice required in 3.1 shall include:
3.2.1 A written description of the action proposed or refused by the agency; and
3.2.2 An written explanation of why the agency proposes or refuses to take the action; and
3.2.3 A written description of each evaluation procedure, assessment, record, or report the agency used as a basis for the proposed or refused action; and
3.2.4 A written statement that the parents of a child with a disability have protection under the procedural safeguards of these state and federal regulations and, if this notice is not an initial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained; and
3.2.5 Sources for parents to contact to obtain assistance in understanding the provisions of these regulations, including contact information for parent assistance programs, legal assistance programs, and the Delaware State Bar Association; and
3.2.6 A written description of any other options the IEP Team considered and the reasons why those options were rejected; and
3.2.7 A written description of other factors which are relevant to the agency’s proposal or refusal; and
3.2.8 A full explanation of all the procedural safeguards available to the parents. A written summary of procedural safeguards must be available to the parents under state and federal law and regulations.
3.3 Notice in understandable language: The notice required in 3.1 shall be:
(Authority: 20 U.S.C. 1415(b)(3) and (4), 1415(c)(1), 1414(b)(1));14 Del.C. §3110)[, 14 Del.C. §3130, 14 Del.C. §3133, 14 Del.C. §3134)]
4.1.2 Upon receipt of the first State complaint 14 DE Admin. Code 923.51.0 through 923.53.0 and upon receipt of the first due process complaint in 7.0 in a school year;
4.1.3 Upon the decision to remove a child with a disability from his or her educational placement because of a violation of a code of student conduct; and
4.1.5 In addition, a copy of the procedural safeguards notice shall be offered to the parents of a child with a disability at each IEP meeting convened for the child.
6.2.3 Conducted by a qualified and impartial mediator who is trained in effective mediation techniques. In addition, parents will be permitted to be accompanied and advised at mediation by individuals of their choice. Any public agency involved in mediation shall assure that an individual from the public agency with the authority to make decisions and commit resources to agreed upon services attends the mediation.
6.7.1 A person who otherwise qualifies as a mediator is not an employee of an LEA, the DOE or other State agency described in 14 DE Admin. Code 924.28.0 solely because he or she is paid by the agency to serve as a mediator.
7.2 The due process complaint shall allege a violation that occurred not more than two (2) years before the date the parent or public agency knew or should have known about the alleged action that forms the basis of the due process complaint, except as provided in 11.9.
8.4 Sufficiency of complaint: The due process complaint required by this section shall be deemed sufficient unless the party receiving the due process complaint notifies the hearing panel and the other party in writing, within fifteen (15) days of receipt of the due process complaint, that the receiving party believes the due process complaint does not meet the requirements in 8.2 of this section.
8.6.2 The hearing panel grants permission, except that the hearing panel may only grant permission to amend at any time not later than five (5) days before the due process hearing begins.
8.10 Other party response to a due process complaint: Except as provided in 8.8 and 8.9, the party receiving a due process complaint shall, within ten (10) days of receiving the due process complaint, send to the other party a response that specifically addresses the issues raised in the due process complaint.
10.3 The meeting described in 10.1 and 10.2 need not be held if the parent and the LEA agree in writing to waive the meeting; or the parent and the LEA agree to use the mediation process described in 6.0.
10.4.2 Except as provided in 10.5, the timeline for issuing a final decision under 15.0 begins at the expiration of this thirty (30) day period.
10.4.4 If the LEA is unable to obtain the participation of the parent in the resolution meeting after reasonable efforts have been made and documented using the procedures in 14 DE Admin. Code 925.22.4; the LEA may, at the conclusion of the thirty (30) day period request the hearing panel dismiss the parent’s due process complaint.
11.2 The DOE shall be responsible for conducting the due process hearing as further provided in this section. Upon receipt of a due process complaint, the Secretary shall appoint a three (3) member hearing panel consisting of:
11.4.2 Possess the knowledge and ability to conduct hearings in accordance with appropriate, standard legal practice, in cooperation and consultation with other hearing officers appointed to a given hearing panel;
11.4.3 Possess the knowledge and ability to render and write decisions in accordance with appropriate, standard legal practice, in cooperation and consultation with other hearing officers appointed to a given hearing panel; and
11.4.4 Complete training as required by the Secretary to ensure the adequate knowledge and competent performance of hearing officers.
11.10 Burden of proof: The burden of proof and persuasion in the due process hearing shall be on the public agency which is a party to the proceeding.
12.1.5 Obtain a written, or, at the option of the parents, electronic decision which includes findings of fact and law; and Authority to issue subpoenas rests with the Secretary, or the Secretary’s designee. Upon the application of any party to the Secretary at least twelve (12) days prior to a hearing, a subpoena shall be issued requiring the attendance of the person or persons listed in the application. A copy of the application for subpoenas shall be provided to the hearing panel and to the other party no later than the time it is provided to the Secretary. If a person subpoenaed to attend a hearing fails to obey without reasonable cause, or if such person refuses, without lawful excuse, to be examined or to answer pertinent questions, an application may be filed with the Family Court for an order directing the such person to show cause why he or she should not appear to testify. Upon return of the rule, the Family Court shall examine such person under oath, and if the Family Court shall determine, after giving such person an opportunity to be heard, that he or she refused without legal excuse to attend or testify at the hearing, despite the subpoena, the Family Court may order such person to comply therewith. Any failure to obey the order may be punished as a contempt of the Family Court, pursuant to the Rules of the Family Court.
12.2.1 The hearing panel may bar any party that fails to comply with paragraph 12.2 of this section from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party.
12.3 Parental rights at hearings: Any testimony presented at a due process hearing shall be under oath or affirmation. The hearing panel shall ensure that parents have been advised of their procedural safeguards. Parents involved in hearings shall also be given the right to:
12.3.4 Have the hearing conducted at a time and place which is reasonably convenient to the parents and child involved.
(Authority: 14 Del.C. §§3110, 3135, 3137, 3139)
13.6 Findings and decision to Governor’s Advisory Council for Exceptional Citizens and general public: The DOE, after deleting any personally identifiable information, shall transmit the findings and decisions referred to in 12.1.5 to the chairperson of the Governor’s Advisory Council for Exceptional Citizens and make those findings and decisions available to the public by placing legal notice annually in newspapers of sufficient circulation in each of the three (3) Delaware counties, that this information may be obtained through the DOE, and by placing the findings and decision on its Website.
Finality of hearing decision: A decision made in a hearing conducted pursuant to 7.0 through 13.0 or 30.0 through 34.0 is final, except that any party involved in the hearing may file a civil action under 16.0.
15.1 The Secretary shall ensure that, not later than forty five (45) days after the expiration of the thirty (30) day period in 10.4, or the adjusted time periods described in 10.5, a final decision is reached in the hearing; and a copy of the decision is mailed to each of the parties.
15.2 The hearing panel, for good cause, may grant specific extensions of time beyond the periods set out in 15.1 at the request of either party; provided however, that a final decision shall be reached and a copy of the decision mailed to each of the parties within fifteen (15) days of the date of the hearing, or where applicable, within fifteen (15) days of the completion of post-hearing argument. In granting specific extensions, the panel shall ensure that a party’s right to redress is in no way diminished or unnecessarily delayed.
16.2 Time limitation: The party bringing the action shall have ninety (90) days from the date of the decision of the hearing panel to file a civil action.
16.3 Additional requirements: In any action brought under 16.1, the Secretary, or the Secretary’s designee, shall certify and file with the court the record of the administrative hearing, which shall include all documents submitted, a transcript of all testimony, and the decision of the hearing panel. The court:
17.1.3 To a prevailing LEA or the DOE against the attorney of a parent, or against the parent, if the parent’s request for a due process hearing or subsequent cause of action was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation. The court or administrative hearing panel finds that the relief finally obtained by the parents is not more favorable to the parents than the offer of settlement.
17.4.4 Notwithstanding paragraph 17.4.2, an award of attorneys’ fees and related costs may be made to a parent who is the prevailing party and who was substantially justified in rejecting the settlement offer.
18.1 Except as provided in 33.0, during the pendency of any administrative or judicial proceeding regarding a due process complaint notice requesting a due process hearing under 7.0, unless the State or local agency and the parents of the child agree otherwise, the child involved in the complaint shall remain in his or her current educational placement.
18.4 If the hearing panel in a due process hearing conducted by the DOE agrees with the child’s parents that a change of placement is appropriate, that placement shall be treated as an agreement between the State and the parents for purposes of 18.1.
(Authority: 20 U.S.C. 1415(j); 14 Del.C. §§3110, 3143)
Educational Surrogate Parent, “Surrogate Parent” and “ESP” all mean a person appointed by the DOE to represent a child who receives, or may be in need of, special education and related services in all educational decision making pertaining to the identification, evaluation, and educational placement of the student and the provision of FAPE to the child.
19.2.1 No parent as defined in 14 DE Admin. Code 922.3.0 can be identified;
19.2.4 The child’s parent has consented voluntarily, in writing, to the appointment of an educational surrogate parent. Such consent is revocable by the parent at any time by written notice to the DOE;
19.3 The DOE shall make reasonable efforts to appoint a surrogate parent within thirty (30) days after a request is submitted by an LEA or other public agency.
19.6.4 For a child in the custody of the Department of Services for Children, Youth and Their Families (DSCYF) who may be in need of a surrogate parent, the DSCYF shall promptly make a written request to the DOE to appoint a surrogate parent. The Family Court may, in the exercise of its proper jurisdiction, order the DSCYF to make a referral.
19.7 Candidacy of surrogate parents: To serve as a surrogate parent, each candidate shall:
19.7.1 Be at least eighteen (18) years of age;
19.7.2 Be a legal resident of the United States;
19.7.3 Be competent to represent the child;
19.7.4 Not be an employee of the DOE, an LEA or any other public or private agency responsible for, or involved in the education or care of the child;
19.7.5 Have no interest that conflicts with the interest of the child he or she may represent, including, but not limited to, any professional or personal interest that might restrict or bias his or her ability to advocate for all of the services required to ensure a free, appropriate public education the child;
19.7.6 Receive training about Delaware and federal law and regulations, including due process procedures, disability conditions, educational programs, and special education services for children with disabilities, as required by the DOE in consultation with the Office of the Educational Surrogate Parent Program.
19.7.7 Be able to converse in the primary communication mode used by the child whenever possible; and
19.10.1 Representing the child in all matters relating to the identification, evaluation, and educational placement of the child, and the provision of FAPE to the child;
19.12.1 The DOE shall compensate surrogate parents for all reasonable and necessary expenses incurred in performance of their duties, including, but not limited to,
19.13 Liability of the Surrogate Parent
19.13.1 A person appointed by the DOE as surrogate parent shall not be held liable for actions taken in good faith on behalf of the child in protecting the special education rights of the child.
(Authority: 20 U.S.C. 1415(b)(2); 14 Del.C. §§3110, 3132)
30.2 School personnel under 30.0 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), and for additional removals of not more than ten (10) consecutive school days in that same school year for separate incidents of misconduct (as long as those removals do not constitute a change of placement under 36.0).
30.4.1 A child with a disability who is removed from the child’s current placement pursuant to 30.3 or 30.7 shall continue to receive educational services, as provided in 14 DE Admin. Code 923.1.2 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 receive, as appropriate, a functional behavioral assessment, and behavioral intervention services and modifications, that are designed to address the behavior violation so that it does not recur.
30.8 Notification: The LEA or other public agency shall ensure that the parents, guardian or Relative Caregiver of each child with disabilities receive written notice of the rules and regulations applicable to such children with respect to discipline, suspension, expulsion, and exclusion as a treatment procedure at the beginning of each school year or upon entry into a special education program during the school year; and
30.8.1 On the date on which the decision is made to make a removal that constitutes a change of placement of a child with a disability because of a violation of a code of student conduct, the LEA shall notify the parents of that decision, and provide the parents the procedural safeguards notice described in 4.0.
30.9 Definitions: For purposes of this section, the following definitions apply:
“Controlled Substance” means a drug or other substance identified under schedules I, II, III, IV, or V in section 202c of the Controlled Substances Act (21 U.S.C. 812(c)).
“Illegal Drug” 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.
“Serious Bodily Injury” has the meaning given the term “serious bodily injury” under paragraph (3) of subsection (h) of section 1365 of title 18, United States Code.
“Weapon” has the meaning given the term “dangerous weapon” under paragraph (2) of the first subsection (g) of section 930 of title 18, United States Code.
32.2 A single, impartial hearing officer appointed by the DOE from its Registry of Impartial Hearing Officers shall make a determination regarding an appeal under paragraph (a) of this section. The hearing officer may:
32.3 Expedited due process hearing:
32.3.2 The DOE shall be responsible for arranging the expedited due process hearing, which shall occur within twenty (20) school days of the date the complaint requesting the hearing is received by the DOE. The hearing officer shall make a determination within ten (10) school days after the hearing.
34.3 Exception: A public agency would not be deemed to have knowledge under 34.2 if the parent of the child has not allowed an evaluation of the child pursuant to 14 DE Admin. Code 925.1.0 through 925.12.0; or has refused services under these regulations; or the child has been evaluated in accordance with 14 DE Admin. Code 925.1.0 through 925.12.0 and determined to not be a child with a disability under these regulations.
36.1.3 The child has been subjected to a series of in-school removals totaling more than ten (10) school days and it deprives the child from meeting the goals set out in the IEP; progressing in the general curriculum though another setting; and receiving those services and modifications described in the IEP; or the child has been subjected to a series of removals from transportation and it results in the child’s absence from school for more than ten (10) school days.
Last Updated: December 31 1969 19:00:00.
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