Pt. 57, App. F
Appendix F to Part 57
—Parent and Student Rights
A. Parental Consent
(1) The consent of a parent of a child with a disability or suspected of having a disability shall be obtained before any of the following:
(i) Initiation of formal evaluation procedures or re-evaluation.
(ii) Provision of EIS or initial educational placement.
(iii) Change in EIS or educational placement.
(2) If a parent of an infant or toddler (birth through 2 years of age) does not provide consent for participation in all EIS, the services shall still be provided for those interventions to which a parent does give consent.
(3) If the parent of a child 3 through 21 years, inclusive, refuses consent to initial evaluation, reevaluation, or initial placement in a special education program, the DoD school system or the parent may do the following:
(i) Request a conference between the school and parents.
(ii) Request mediation.
(iii) Initiate an impartial due process hearing under appendix G of this part to show cause as to why an evaluation or placement in a special education program should or should not occur without such consent. If the hearing officer sustains the DoD school system's position in the impartial due process hearing, the DoD school system may evaluate or provide special education and related services to the child without the consent of a parent, subject to the further exercise of due process rights.
(4) The Department of Defense shall protect the child's rights, by assigning an individual to act as a surrogate for the parents, when after reasonable effort the Department of Defense cannot locate the parents.
B. Procedural Safeguards
Parents of children with disabilities are afforded the following procedural safeguards, consistent with appendix G of this part to ensure that their children receive appropriate special services:
(1) The timely administrative resolution of parental complaints, including hearing procedures with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of EIS for an infant or toddler, age birth through 2 years, or a free appropriate public education for the child, age 3 through 21 years, inclusive.
(2) The right to confidentiality of personally identifiable information under DoD Directive 5400.11.
(3) The right to provision of written notice and to have furnished consent prior to the release of relevant information outside the Department of Defense.
(4) The right to determine whether they, their child, or other family members shall accept or decline any portion of EIS, without jeopardizing the provision of other EIS.
(5) The opportunity to examine records on assessment, screening, eligibility determinations, and the development and implementation of the IFSP and IEP.
(6) Written Notice. The right to prior written notice when the EDIS or school proposes, or refuses, to initiate or change the identification, evaluation, placement or provision of special services to the child with a disability.
(i) The notice must be in sufficient detail to inform the parents about:
(A) The action that is being proposed or refused;
(B) The reasons for taking the action;
(C) All procedural safeguards that are available under this part as described in paragraph B.(7) of this appendix; and
(D) Conflict resolution procedures, including a description of mediation and due process hearings procedures and applicable timelines, as defined in appendix G of this part.
(ii) The notice must be provided in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so.
(7) Procedural Safeguards Notice. Parents must be given a Procedural Safeguards Notice, at a minimum, upon initial referral for evaluation, upon each notification of an IFSP or IEP meeting, upon reevaluation of the child, and upon receipt of a request for due process.
(i) The procedural safeguards notice must include a full explanation of all of the procedural safeguards available with regard to the matters in paragraph B.(7) of this appendix including the right to:
(A) Independent educational evaluation for school-aged children.
(B) Prior written notice.
(C) Parental consent.
(D) Access to educational or early intervention records.
(E) Opportunity to present complaints.
(F) The child's placement during pendency of due process proceedings.
(G) Procedures for children (3 through 21 years, inclusive) who are subject to placement in an interim alternative educational setting.
(H) Requirements for unilateral placement by parents of children in private schools at public expense.
(J) Due process hearings, including requirements for disclosure of evaluation results and recommendations.
(K) Civil actions.
(L) The DoD complaint system, including a description of how to file a complaint and the timelines under those procedures.
(ii) The procedural safeguards notice must be:
(A) Written in language understandable to the general public.
(B) Provided in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so. If the native language or other mode of communication of the parent is not a written language, the school system shall take steps to ensure that:
(i) The notice is translated orally or by other means to the parent in his or her native language or other mode of communication.
(ii) The parent understands the content of the notice; and
(iii) There is written evidence that the requirements in paragraph B.(7)(ii)(A) and paragraph B.(7)(ii)(B) of this appendix have been met.
(8) Independent Educational Evaluation. A parent of a child (3 through 21 years, inclusive) may be entitled to an independent educational evaluation of the child at the expense of the DoD school system if the parent disagrees with the DoD school system's evaluation of the child.
(i) If a parent requests an independent educational evaluation at the school system's expense, the DoD school system must, without unnecessary delay, either:
(A) Initiate an impartial due process hearing to show that its evaluation is appropriate; or
(B) Ensure an independent evaluation is provided at the DoD school system's expense. Unless the DoD school system demonstrates in an impartial due process hearing that an independent evaluation obtained by the parent did not meet DoD school system criteria. In such cases, the parents must bear the cost of the evaluation.
(ii) If the DoD school system initiates a hearing and the decision is that the DoD school system's evaluation is appropriate, the parents still have the right to an independent evaluation, but not at the school system's expense.
(iii) An independent educational evaluation provided at the DoD school system's expense must do the following:
(A) Conform to the requirements of this part.
(B) Be conducted, when possible, in the area where the child resides.
(C) Meet DoD standards governing persons qualified to conduct an educational evaluation, including an evaluation for related services.
(9) The DoD school system, the CSC, and a hearing officer appointed under this part shall consider any evaluation report presented by a parent.
(10) Access to Records. The parents of a child with a disability shall be afforded an opportunity to inspect and review educational records about the identification, evaluation, and educational placement of the child, and the provision of a free public education for the child.
(11) Due Process Rights. (i) The parent of a child with a disability, the Military Department, or the DoD school system has the opportunity to file a written petition for an impartial due process hearing under appendix G of this part. The petition may concern issues affecting a particular child's identification, evaluation, or placement, or the provision of EIS or a free and appropriate public education.
(ii) While an impartial due process hearing or judicial proceeding is pending, unless the EDIS or the DoD school system and the parent of the child agree otherwise, the child shall remain in his or her present educational setting, subject to the disciplinary procedures prescribed in section H of appendix B of this part.
(12) Transfer of Parental Rights at Age of Majority. (i) In the DoD school systems, a child reaches the age of majority at age 18.
(ii) When a child with a disability reaches the age of majority (except for a child with a disability who has been determined to be incompetent under State law) the rights accorded to parents under this Part transfer to the child.
(iii) When a child reaches the age of majority, the DoD school system shall notify the individual and the parents of the transfer of rights.
(iv) When a child with a disability who has reached the age of majority, who has not been determined to be incompetent, but who does not have the ability to provide informed consent with respect to his or her educational program, the Department of Defense shall establish procedures for appointing the parent of the child to represent the educational interests of the child throughout the period of eligibility for special education services.