§ 3130 Opportunity to examine records and educational program.
(a) The parents of a child with a disability, either personally or through a representative, shall be afforded an opportunity to inspect and review all relevant records with respect to:
(1) The identification, evaluation and educational program and placement of the child; and
(2) The provision of a free, appropriate, public education to the child.
(b) The parents shall have the right to obtain copies of all records, except the actual evaluation or examination instrument, described in subsection (a) of this section either without charge, or, at the discretion of the district or state agency, at a fee not to exceed actual cost. Under no circumstances shall a fee be assessed which effectively prevents parents from exercising their right to inspect, review and copy records.
(c) The parents of a child with a disability shall have the right to visit and observe, either personally or through a representative, their child’s current or proposed public educational program.
§ 3131 Conduct of meetings.
(a) No charter school or school district, or any person acting under the authority of a charter school or school district, shall discriminate or take any adverse employment or contract action against any person based upon statements that person makes while advocating for a student in connection with an individualized education program (IEP), including statements made in preparation for or at a meeting, review, or conference concerning a child with a disability’s free, appropriate public education. Entities or persons who violate this subsection shall be subject to the same injunctive and monetary sanctions as persons or entities that engage in unlawful employment practices under Chapter 7 of Title 19.
(b) Subject to confidentiality requirements of applicable state or federal law, minutes may be taken, by disclosed recording device or stenographer, of any meeting, review or conference concerning a child with a disability’s free, appropriate, public education, at the option of the parents of the child with a disability, their authorized representative or the agency conducting the meeting, review or conference. Costs of the recording shall be borne by the person or agency exercising the option under this section.
(c) Discussions about employment options with children and parents during the IEP process should be consistent with Delaware’s employment first policy articulated by § 743 of Title 19. Progress made toward post-secondary goals in transition IEPs will be reported with the same frequency as that for academic goals.
(d) The Department of Education, in consultation with the Department of Justice, shall annually survey a material number of parents and children who have individualized education programs with respect to the parents’ and children’s satisfaction with the IEP process. Information gathered through this survey shall be used by the Department of Education and Department of Justice to conduct follow-up examinations with school districts and charter schools as to their good faith compliance with state and federal laws and regulations.
§ 3132 Educational surrogate parents and educational representatives.
(a) Educational surrogate parents. — The Department with the approval of the State Board of Education shall establish and maintain procedures to protect the rights of a child with a disability whenever the parents of the child are not known, unavailable or the child is a ward of the State, or an unaccompanied homeless youth as defined in § 725(6) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. § 11434a(6)), including the assignment of an individual, who shall not be an employee of any public agency involved in the education or care of the child, to act as an educational surrogate parent for the child. The educational surrogate parent shall exercise and be accorded all rights of a parent to assure the provision of a free, appropriate, public education to the child.
(b) Educational representatives. — The Department of Education, with the approval of the State Board of Education, shall establish and maintain procedures, by regulation, to assure that children with disabilities who have reached age 18 have an identified decision-maker, which may be the child with a disability, to exercise rights under this chapter. Such regulations shall be developed in consultation with the Governor’s Advisory Council for Exceptional Citizens and incorporate the following minimum standards, including a timeline to review the need for an educational representative.
(1) A child with a disability without a court-appointed guardian of the person shall be presumed to have capacity and be accorded the rights of a parent upon attainment of age 18.
(2) A child with a disability with capacity may authorize an agent to exercise rights through execution of a power of attorney or a standard voluntary grant of authority form published by the Department.
(3) The determination of capacity shall be made by the Individualized Education Program (IEP) team during an IEP meeting and shall conform to the following standards:
a. In cases where capacity is uncertain, a school psychologist familiar with the child must attend the initial meeting. For purposes of this section, the term “familiar with the child” means the school psychologist has conducted a recent in-person evaluation of the child which conforms to evaluation procedures established by Department regulations.
b. The child with a disability and parent, as defined in § 3101(7) of this title, must be invited to participate in the meeting regardless of whether the child has already attained the age of 18.
c. The IEP team may consider information from sources apart from school personnel and may authorize evaluation if necessary to inform its deliberations.
d. If information is ambiguous, any benefit of the doubt shall be exercised in favor of a finding of capacity.
(4) If the IEP team determines that the child lacks capacity, the IEP team shall appoint an individual to serve as an educational representative in the following descending order of priority:
a. Willing and available biological or adoptive parent;
b. Willing and available relative.
If such an individual is not identified, the IEP team shall promptly facilitate a referral to the Department for appointment of an educational surrogate parent. An appointed educational representative shall have the same authority as a parent under § 3101(7) of this title.
(5) If a child with a disability or parent disagrees with the capacity determination, either may contest the determination by pursuing dispute resolution options described in the procedural safeguards of this chapter or its implementing regulations regardless of the child’s attainment of age 18.
(6) The capacity determination is limited to exercise of rights under this chapter and its implementing regulations and shall not affect exercise of rights in any other context. In furtherance of this limitation, any other statute notwithstanding, the capacity determination shall not be admissible as evidence of competency or capacity in any noneducational judicial or administrative proceeding.
§ 3133 Notice required.
Written notice which meets the requirements under § 3134 of this title must be given to the parents of a child with a disability a reasonable time before any school district or state agency:
(1) Proposes to initiate or change the identification, evaluation or educational placement of the child or the provision of a free and appropriate public education to the child; or
(2) Refuses to initiate or change the identification, evaluation or educational placement of the child or the provision of a free, appropriate, public education to the child.
§ 3134 Contents of notice.
The notice under § 3133 of this title must include all of the following:
(1) A full explanation of all of the procedural safeguards available to the parents under state and federal law and regulations.
(2) A written description of the action proposed or refused by the district or agency, an explanation of why the district or agency proposes or refuses to take the action, and a description of any options the district or agency considered and the reasons why those options were rejected.
(3) A written description of each evaluation procedure, test, record or report the district or agency uses as a basis for the proposal or refusal.
(4) A written description of any other factors which are relevant to the district or agency’s proposal or refusal.
(5) A written statement that the parents of a child with a disability have protection under the procedural safeguards of state and federal law and regulations and the means by which a copy of a description of the procedural safeguards can be obtained.
(6) Sources for parents to contact to obtain assistance in understanding the provisions of this subchapter, including specific contact information for existing parent assistance programs, legal assistance programs, and the Delaware State Bar Association.
(7) A separate questionnaire requesting the input of a child’s parent and, where appropriate, a child, with respect to the child’s progress to date and additional proposed steps that should be taken to adjust the child’s goals, curriculum, services, aids, modifications, or other elements of the child’s individualized education program (IEP). The questionnaire may be sent prior to the written notice of an IEP meeting or its equivalent and, if it is, does not need to be included in the notice under this section.
(8) A copy of the draft IEP accompanied by a letter clearly indicating to the parent and child that the document is a draft for discussion and subject to revision at the noticed meeting, if a draft IEP will be presented to a child or parent, or otherwise utilized at the IEP meeting for which notice is provided. If such a draft IEP is prepared subsequent to the notice required by this section but prior to the noticed meeting, it shall be provided to the parent and child prior to the noticed meeting, along with the explanatory letter required by this paragraph. Any draft document provided to a child or parent pursuant to this paragraph shall be clearly labeled on each page as a draft document for discussion purposes only. The Department in collaboration with the Governor’s Advisory Council on Exceptional Citizens shall create a draft letter and associated guidance to assist the charter schools and school districts with the content and application of the above letter.
(9) A notice that a parent or child may request prior to an IEP meeting any data in the charter school’s or school district’s possession relevant to the child’s needs or disability.
(10) A notice that a parent or child may request the presence of any teacher, paraprofessional, and any additional staff members of their choosing at an IEP meeting.
§ 3135 Administrative hearing.
(a) A parent, district or state agency may initiate a hearing concerning any right or entitlement conferred by this chapter.
(b) A hearing is initiated by submission of a written request to the Secretary of Education.
(c) The Secretary of Education, upon receipt of a request for hearing, shall appoint a hearing panel whose membership shall meet the requirements of § 3137 of this title.
(d) The district or state agency shall inform the parent of any free or low-cost legal and other relevant services available in the area whenever:
(1) The parent requests the information; or
(2) A hearing is initiated pursuant to this section.
§ 3136 Timeliness of administrative hearings.
(a) The Secretary of Education shall ensure that, not later than 45 days after the expiration of the 30-day period in subsection (d) of this section, or the adjusted time periods in subsection (e) of this section:
(1) A hearing is conducted;
(2) A final decision is reached in the hearing; and
(3) A copy of the decision is mailed to each of the parties.
(b) The hearing panel, for good cause, may grant specific extensions of time beyond the time periods set out in subsection (a) of this section 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 15 days of the date of the hearing, or, where applicable, within 15 days of the completion of post-hearing argument.
(c) Within 15 days of receiving notice of the parents’ complaint and prior to the opportunity for an impartial due process hearing, the district or state agency shall convene a meeting with the parents and the relevant member of the Individual Education Program (IEP) team who have specific knowledge of the facts identified in the due process complaint where the parents of the child discuss their complaint, and the facts that form the basis of the complaint, and the district or charter school is provided the opportunity to resolve the complaint, unless the parents and the district or state agency agree in writing to waive such meeting, or agree to use the mediation process. The IEP team shall include a representative of the district or state agency that has decision making authority on behalf of the district or state agency and may not include an attorney of the district or state agency unless the parent is accompanied by an attorney.
(d) If the district or state agency has not resolved the complaint to the satisfaction of the parents within 30 days of the receipt of the complaint, the due process hearing may occur.
(e) The 45-day timeline for the due process hearing in subsection (a) of this section starts the day after the occurrence of 1 of the following events:
(1) Both parties agree in writing to waive the resolution meeting; or
(2) Either the mediation or resolution meeting starts, but before the end of the 30-day period, the parties agree in writing that no agreement is possible; or
(3) Both parties agree in writing to continue the mediation at the end of the 30-day resolution period, but later, the parent, district or state agency withdraws from the mediation process.
§ 3137 Hearing panel.
(a) A hearing panelist may not be:
(1) A person who is an employee of a district or agency which is involved in the education or care of the child; or
(2) A person having a personal or professional interest which would conflict with that person’s own objectivity in the hearing.
(b) The Secretary of Education shall maintain a list of the persons who serve as hearing panelists. The list must include a statement of the qualifications of each of those persons.
(c) All hearing panelists shall have successfully completed such training as may be required by the Secretary of Education to ensure the adequate knowledge and competent performance of panelists.
(d) Each panel shall consist of 3 panelists, appointed by the Secretary of Education on a rotating basis, as follows:
(1) One attorney admitted to practice and in good standing with the bar of a state;
(2) One educator knowledgeable in the field of special education and special educational programming;
(3) One lay person with demonstrated interest in the education of children with disabilities included on an approved list compiled by the Advisory Council for Exceptional Citizens and submitted to the Secretary of Education.
(e) The Department with approval of the State Board of Education shall promulgate regulations which, consistent with this subchapter, further define hearing procedures and the conduct of hearing panelists which shall include standards of competency, expertise and training for hearing panelists.
§ 3138 Hearing rights; procedure.
(a) Any party to a hearing has the right to:
(1) Be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities;
(2) Present evidence and confront and cross-examine adverse witnesses;
(3) Compel the attendance of witnesses as authorized by § 3139 of this title;
(4) Prohibit the introduction of any evidence at the hearing that has not been disclosed to that party at least 5 business days before the hearing;
(5) Obtain a written or, at the option of the parents, electronic verbatim record of the hearing, at public expense;
(6) Obtain a written or, at the option of the parents, electronic decision which includes findings of fact and law.
(b) Parents involved in hearings must be given the right to:
(1) Have the child who is the subject of the hearing present; and
(2) Open the hearing to the public.
(c) The hearing panel shall ensure that parents who have requested a hearing have been advised of the procedural safeguards provided by this subchapter.
(d) Any hearing must be conducted at a time and place which is reasonably convenient to the parents and child involved.
(e) Any testimony presented at a hearing authorized by this section shall be under oath or affirmation.
(f) Copies of all written decisions shall be provided to the Advisory Council for Exceptional Citizens after deleting any personally identifiable information.
(g) Following any disposition under this chapter which entitles a parent to attorneys’ fees under state or federal law, said parent shall also be awarded the reasonable fees of expert witnesses and the reasonable costs of any tests or evaluations necessary for the preparation of the parent’s hearings. Awards made pursuant to this section shall not be made with the use of funds previously designated for the direct provision of education or services to children. Each school district and charter school shall report annually to the Department of Education, in a form to be determined by the Department, the amount of all awards made pursuant to this subsection and the source of funds for such awards.
§ 3139 Subpoenas.
(a) Authority to issue subpoenas is conferred upon the Secretary of Education, or the Secretary’s designee, in order to implement § 3138(a)(3) of this title.
(b) Upon the application of any party at least 12 days prior to hearing, a subpoena shall be issued requiring the attendance of the person or persons listed in the application.
(c) If a person subpoenaed to attend a hearing fails to obey without reasonable cause, or if such a person in attendance 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 such person to show cause why that person should not appear or testify. Upon return of the rule, the Court shall examine such person under oath, and if the Court shall determine, after giving such person an opportunity to be heard, that the person refused without legal excuse to attend or testify at the hearing, despite the subpoena, the 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.
§ 3140 Burden of proof.
The burden of proof and persuasion in any proceeding convened pursuant to § 3135 of this title shall be on the district or state agency which is a party to the proceeding.
§ 3141 Finality of decision.
A decision made by a hearing panel under this subchapter is final, unless a party to the hearing brings a civil action under § 3142 of this title.
§ 3142 Judicial review.
(a) Any party aggrieved by the decision of the hearing panel may file a civil action in the Family Court. Such proceeding shall be initiated by the filing of a complaint within 90 days of the date of the decision.
(b) In any action brought under this section, the Court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party and, basing its decision on the preponderance of the evidence, shall grant such relief as the Court determines is appropriate.
(c) The Secretary of Education, 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.
§ 3143 Child’s status during proceedings.
(a) During the pendency of any administrative or judicial proceedings regarding a complaint, unless the district or state agency and parents of the child agree otherwise, the child involved in the complaint shall remain in that child’s present educational placement.
(b) If the complaint involves an application for initial admission to public school, the child, with the consent of the parents, shall be placed in the public school program until the completion of all proceedings.