§ 1439. — Procedural safeguards.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 20USC1439]
TITLE 20--EDUCATION
CHAPTER 33--EDUCATION OF INDIVIDUALS WITH DISABILITIES
SUBCHAPTER III--INFANTS AND TODDLERS WITH DISABILITIES
Sec. 1439. Procedural safeguards
(a) Minimum procedures
The procedural safeguards required to be included in a statewide
system under section 1435(a)(13) of this title shall provide, at a
minimum, the following:
(1) The timely administrative resolution of complaints by
parents. Any party aggrieved by the findings and decision regarding
an administrative complaint shall have the right to bring a civil
action with respect to the complaint in any State court of competent
jurisdiction or in a district court of the United States without
regard to the amount in controversy. In any action brought under
this paragraph, 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.
(2) The right to confidentiality of personally identifiable
information, including the right of parents to written notice of and
written consent to the exchange of such information among agencies
consistent with Federal and State law.
(3) The right of the parents to determine whether they, their
infant or toddler, or other family members will accept or decline
any early intervention service under this subchapter in accordance
with State law without jeopardizing other early intervention
services under this subchapter.
(4) The opportunity for parents to examine records relating to
assessment, screening, eligibility determinations, and the
development and implementation of the individualized family service
plan.
(5) Procedures to protect the rights of the infant or toddler
whenever the parents of the infant or toddler are not known or
cannot be found or the infant or toddler is a ward of the State,
including the assignment of an individual (who shall not be an
employee of the State lead agency, or other State agency, and who
shall not be any person, or any employee of a person, providing
early intervention services to the infant or toddler or any family
member of the infant or toddler) to act as a surrogate for the
parents.
(6) Written prior notice to the parents of the infant or toddler
with a disability whenever the State agency or service provider
proposes to initiate or change or refuses to initiate or change the
identification, evaluation, or placement of the infant or toddler
with a disability, or the provision of appropriate early
intervention services to the infant or toddler.
(7) Procedures designed to ensure that the notice required by
paragraph (6) fully informs the parents, in the parents' native
language, unless it clearly is not feasible to do so, of all
procedures available pursuant to this section.
(8) The right of parents to use mediation in accordance with
section 1415(e) of this title, except that--
(A) any reference in the section to a State educational
agency shall be considered to be a reference to a State's lead
agency established or designated under section 1435(a)(10) of
this title;
(B) any reference in the section to a local educational
agency shall be considered to be a reference to a local service
provider or the State's lead agency under this subchapter, as
the case may be; and
(C) any reference in the section to the provision of free
appropriate public education to children with disabilities shall
be considered to be a reference to the provision of appropriate
early intervention services to infants and toddlers with
disabilities.
(b) Services during pendency of proceedings
During the pendency of any proceeding or action involving a
complaint by the parents of an infant or toddler with a disability,
unless the State agency and the parents otherwise agree, the infant or
toddler shall continue to receive the appropriate early intervention
services currently being provided or, if applying for initial services,
shall receive the services not in dispute.
(Pub. L. 91-230, title VI, Sec. 639, as added Pub. L. 105-17, title I,
Sec. 101, June 4, 1997, 111 Stat. 115.)
Section Referred to in Other Sections
This section is referred to in sections 1401, 1435 of this title.
