[Code of Federal Regulations]
[Title 32, Volume 1]
[Revised as of January 1, 2008]
From the U.S. Government Printing Office via GPO Access
[CITE: 32CFR57 App F]

[Page 349-351]

                       TITLE 32--NATIONAL DEFENSE

              CHAPTER I--OFFICE OF THE SECRETARY OF DEFENSE

PART 57_PROVISION OF EARLY INTERVENTION AND SPECIAL EDUCATION SERVICES TO ELIGIBLE DOD DEPENDENTS--Table of Contents

          Sec. 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.

[[Page 350]]

    (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.
    (I) Mediation.
    (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:

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    (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.