Chapter 31

§ 3101 Definitions. The following words, terms and phrases, when used in this chapter shall have the meanings ascribed to them except when the context clearly indicates a different meaning: (1) “Child” means a person of 3 years of age, or an earlier age if otherwise provided in this title, until the receipt of a regular high school diploma or the end of the school year in which the person attains the age of 22, whichever occurs first. (2) “Child with a disability” means a child who because of mental, physical, emotional, developmental, speech or learning disability problems, as defined by the Department of Education rules and regulations approved by the State Board of Education, requires special education and related services in order to develop that person’s own capabilities. A child with a disability is eligible for services beginning on the child’s third birthday, or earlier if otherwise provided in this title. (3) “Disruptive child” means a child who continually exhibits behavior that does not meet minimal standards of conduct established by the school authorities and that are required in the school and classrooms; whose behavior is in defiance of school personnel, disrupts the school instructional program and is antagonistic to other students and the purpose of the school. (4) “Exceptional child” means a child with a disability or a gifted and talented child, as defined herein. (5) “Free appropriate public education” means special education that is specially designed instruction including classroom instruction, instruction in physical education, home instruction and instruction in hospitals and institutions, and related services as defined by Department of Education rules and regulations approved by the State Board of Education and as may be required to assist a child with a disability to benefit from an education that: a. Is provided at public expense, under public supervision and direction and without charge in the public school system; b. Meets the standards of the Department of Education as set forth in this title or in the rules and regulations of the Department as approved by the State Board; c. Includes elementary, secondary or vocational education in the State; d. Is individualized to meet the unique needs of the child with a disability; e. Provides significant learning to the child with a disability; and f. Confers meaningful benefit on the child with a disability that is gauged to the child with a disability’s potential. No court, administrative tribunal, school district, or school shall use a definition of “free appropriate public education” that states or implies that the term encompasses a lesser educational program than enumerated in this definition. Courts, administrative, tribunals, and schools may use a definition of “free appropriate public education” that states or implies that the term encompasses a more enhanced educational program than described in this definition, if consistent with a decision of the United States Third Circuit Court of Appeals or the United States Supreme Court. The related services to be provided shall be based upon a program for each child as approved by the Department; provided, that the State Board may review any objection to the Department’s decision. Funds for such services are to be paid from the Educational Contingency Fund of the Department of Education. (6) “Gifted or talented child” means a child in the chronological age group 4 through the end of the school year in which the child attains the age of 21 or until receipt of a regular high school diploma, whichever occurs first, who by virtue of certain outstanding abilities is capable of a high performance in an identified field. Such an individual, identified by professionally qualified persons, may require differentiated educational programs or services beyond those normally provided by the regular school program in order to realize that individual’s full contribution to self and society. A child capable of high performance as herein defined includes one with demonstrated achievement and/or potential ability in any of the following areas, singularly or in combination: a. General intellectual ability; b. Specific academic aptitude; c. Creative or productive thinking; d. Leadership ability; e. Visual and performing arts ability; f. Psychomotor ability. (7) “Parent” means a biological or natural parent of a child with a disability, or, as appropriate, a stepparent, guardian, educational surrogate parent, appointed educational representative, relative caregiver or custodian. The identity and authority of a person qualifying as a parent is subject to modification by Family Court or Court of Chancery order. Subject to § 3132 of this title, if a child with a disability has reached that child’s own eighteenth birthday, and no guardian of the person has been appointed, all rights and entitlements accorded to parents by this chapter shall be deemed accorded directly to the child with a disability. (8) [Repealed.] 48 Del. Laws, c. 194, §  2 ; 14 Del. C. 1953, §  3101; 49 Del. Laws, c. 410, §  2 ; 51 Del. Laws, c. 287, §  2 ; 55 Del. Laws, c. 198, §  2 ; 57 Del. Laws, c. 237, §  2 ; 60 Del. Laws, c. 571, §  4 ; 61 Del. Laws, c. 190, §§  4, 7 ; 62 Del. Laws, c. 411, §  1 ; 63 Del. Laws, c. 410, §  1 ; 64 Del. Laws, c. 63, §  2 ; 65 Del. Laws, c. 381, §  2 ; 68 Del. Laws, c. 84, §§  214, 215 ; 68 Del. Laws, c. 126, §§  10, 11 ; 70 Del. Laws, c. 186, §  1 ; 71 Del. Laws, c. 180, §  145 ; 77 Del. Laws, c. 301, §  1 ; 77 Del. Laws, c. 424, §§  2-7 ; 80 Del. Laws, c. 252, § 1 ; 83 Del. Laws, c. 39, §§ 1, 2 ; 83 Del. Laws, c. 357, § 1 ; Delaware General Assembly Judicial Executive Contact Twitter Help function submitSearch() { if (!window.location.origin) { window.location.origin = window.location.protocol + "//" + window.location.hostname + (window.location.port ? ':' + window.location.port : ''); } keyword = document.getElementById('srch-term').value; window.location.href = "/Search?query=" + keyword; } document.getElementById('srch-term').onkeyup = function (e) { if (e.keyCode == 13) { submitSearch(); } } § 3110 Rules and regulations. (a) The Department of Education is designated as the state agency that, with the approval of the State Board, shall make rules and regulations to carry out this and other titles relative to the identification, evaluation, education, training and transportation of exceptional children including specific definitions for the categories of units for exceptional children authorized for funding in § 1703 of this title. (b) The rules promulgated by the Department of Education with the approval of the State Board of Education shall provide the criteria by which identified children with disabilities, as defined in § 3101 of this title, shall be assigned to a public school facility, or, if otherwise eligible for admission, to an institution of another state agency, or released for authorized placement in a private school or agency, pursuant to subchapter III of this chapter. (c) 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 and their parents are guaranteed procedural safeguards with respect to the provision of a free, appropriate, public education. (d) The Department of Education shall promulgate regulations that provide that when a due process hearing is requested by a parent or guardian of a child with disabilities a notice of such request shall be provided to members of the school board for the appropriate school district at the next scheduled school board meeting. Additionally, the regulations shall provide that upon notification of a due process hearing request, a school board president must sign a statement stating that the members of the board of education are aware of said due process hearing. The statement shall be sent by certified mail to the parents or guardian. Furthermore, the regulations will provide that upon conclusion of a due process hearing a copy of the decision shall be sent to members of the school board for the appropriate district and a signed certified letter shall be sent to the parents notifying them that the members of the school board are aware of the decision. The regulations shall also provide that if the parents or guardian of the child appeal the decision of a due process hearing then the members of the school board for the appropriate school district shall be notified of the appeal at the next regularly scheduled board of education meeting. A certified letter, signed by the president of the board receiving the appeal, shall be sent to the parents notifying the parents that members of the school board are aware of the appeal. Lastly, the regulations shall provide that before a school district can appeal the decision of a due process hearing, a majority of the members of the school board for such district must by affirmative vote decide to appeal. (e) With respect to any child with a disability who is not beginning to read by age 7, each IEP prepared for such student until that student is beginning to read shall: (1) Enumerate the specific, evidence-based interventions that are being provided to that student to address the student’s inability to read; and (2) Provide for evidence-based interventions through extended year services during the summer absent a specific explanation in the IEP as to why such services are inappropriate. 48 Del. Laws, c. 194, §  2 ; 14 Del. C. 1953, §  3102; 51 Del. Laws, c. 287, §  2 ; 61 Del. Laws, c. 190, §  7 ; 64 Del. Laws, c. 63, §  3 ; 68 Del. Laws, c. 84, §  217 ; 71 Del. Laws, c. 180, §  146 ; 77 Del. Laws, c. 315, §  1 ; 77 Del. Laws, c. 424, §§  8, 9 ; 78 Del. Laws, c. 179, §  135 ; 79 Del. Laws, c. 300, §  2 ; § 3111 Advisory council for exceptional citizens. (a) The Governor shall appoint an advisory council to act in an advisory capacity to the Department of Education, the State Board of Education and other state agencies on the needs of exceptional citizens. The General Assembly shall provide for the maintenance of the council. The council shall also serve in the capacity of the advisory panel as required by the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400, et seq. (b) The council shall hold at least 1 joint meeting with the Interagency Coordinating Council each calendar year. 14 Del. C. 1953, §  3108; 51 Del. Laws, c. 287, §  3 ; 61 Del. Laws, c. 190, §  7 ; 71 Del. Laws, c. 180, §  147 ; 77 Del. Laws, c. 424, §  10 ; 83 Del. Laws, c. 213, § 5 ; § 3112 Bill of Rights for Children Who Are Deaf or Hard of Hearing. (a) Given the unique communication needs for children who are deaf and hard of hearing there is a need to further develop the comprehensive statewide program which implements a systematic approach to service these children in areas which may include overseeing the development, delivery, and data tracking of these children across the State. (b) The term “communication mode or language mode” means 1 or more of the following systems or methods of communication applicable to children who are deaf or hard of hearing: (1) American Sign Language; (2) English-based manual or sign systems; (3) Oral, aural, speech-based training; (4) Spoken and written English, including speech reading or lip reading; and (5) Communication with assistive technology devices to facilitate language and learning. (c) In developing an individualized education plan (IEP) for a child who is deaf or hard of hearing, in addition to any other requirements established by the Department of Education, the district or charter school shall consider the related services and program options that provide the child with an appropriate and equal opportunity for communication access. The school system shall consider the child’s specific communication needs and address those needs as appropriate in the child’s individualized education program. In considering the child’s needs, the district or charter school shall expressly consider the following: (1) The child’s individual communication mode or language; (2) The availability to the child of a sufficient number of age, cognitive, academic, and language peers of similar abilities if the parents so desires; (3) The availability to the child of deaf or hard of hearing adult models of the child’s communication mode or language; (4) The provision of optimal, direct, and ongoing language access to teachers of the deaf and hard of hearing, interpreters, psychologists, educational audiologists, administrators, and other special education personnel who are knowledgeable due to specific training and who are proficient in the child’s primary communication mode or language; (5) The provision of communication-accessible academic instruction, school services, and direct access to all components of the educational process, including but not limited to, recess, lunch and extracurricular social and athletic activities including the equal opportunity to participate in advanced course work and/or technical vocational course work and academic classes as identified by the Individual Education Program team; (6) Enabling a parent or guardian to make informed decisions concerning which educational options are best suited to the parent’s or guardian’s child, and be involved in determining the optimal services, placement and content of their individual program; and (7) Equipping children who are deaf or hard of hearing with appropriate assistive technology across a full spectrum. (d) No child who is deaf or hard of hearing shall be denied the opportunity for instruction in a particular communication mode or language solely because another communication mode or language was originally chosen for the child. (e) A variety of factors may be considered when determining the optimal instruction in a communication mode, including but not limited to: (1) Changes in the child’s hearing or vision; (2) Development in or availability of assistive technology; (3) The physical and acoustic design of the learning environment; and (4) The subject matter. (f) A child may receive instruction in more than 1 communication mode or language. 77 Del. Laws, c. 474, §  1 ; 78 Del. Laws, c. 179, §§  136-140 ; § 3113 Academic excellence start-up grants. The Department of Education, through the process described herein, shall award start-up grants to public schools for the purpose of initiating new programs to offer specialized educational services to students who are capable of performing accelerated academic work, or renewing existing programs of the same description whose funding sources are expiring. The number of schools receiving such grants and the amount of such grants shall be determined based upon funds available during the relevant fiscal year. Grants shall not be awarded to supplant existing funds for current programs. (1) Start-up grants shall be made for a single year, with the rebuttable assumption that they will be renewed for a single additional year pending available funding. (2) Grants shall be awarded based upon the following criteria: a. Grants shall be awarded to programs that offer educational services specifically targeted at students who are capable of performing accelerated academic work. b. The quality of the proposed curriculum, qualifications of persons acting as instructors, integration with existing school programs, and sustainability of the program after expiration of its start-up grant shall be primary considerations in the awarding of grants. c. Programs that contain programming of the type enumerated in § 3101(6) of this title, including but not limited to programs focused on the visual and performing arts, shall be eligible to receive grants under this section, provided that they otherwise qualify under this section. d. Preference shall be given to programs that are offered during the traditional school day, or alternatively programs that provide a means for after-school transportation. Preference shall also be given to: 1. Programs that can demonstrate that they incorporate components of existing successful programs targeted at students who are capable of doing accelerated academic work; and 2. Programs that minimize costs that do not have a direct impact in the classroom (including professional development). e. Preference shall be given to programs that explicitly provide for the encouragement of participation by students from diverse backgrounds, including students with disabilities. f. All programs awarded grants must provide a means for assessing the impact of the program on participating students’ academic growth. g. The Department of Education shall also consider such other factors as may be recommended by the Gifted and Talented Student Task Force or its successor organization. (3) The Department shall develop by regulation an explicit formula for evaluating proposals for grants under this section, and the scoring of such grant applications shall be considered public information. The Department shall also prepare an annual list of existing Delaware programs targeted at students who are capable of performing accelerated academic work for use by prospective grant applicants. The Department shall annually catalog the programs started with grants awarded under this section for the purpose of allowing replication of successful programs in additional schools and school districts. (4) “Academic work” for purposes of this statute shall consist of work in the areas of writing, reading, science, math, or engineering, or work in other areas (including history and social studies) that specifically incorporates 1 of those academic fields. 79 Del. Laws, c. 67, §  1 ; Delaware General Assembly Judicial Executive Contact Twitter Help function submitSearch() { if (!window.location.origin) { window.location.origin = window.location.protocol + "//" + window.location.hostname + (window.location.port ? ':' + window.location.port : ''); } keyword = document.getElementById('srch-term').value; window.location.href = "/Search?query=" + keyword; } document.getElementById('srch-term').onkeyup = function (e) { if (e.keyCode == 13) { submitSearch(); } } § 3120 Right to receive public education. The State shall provide, in the school districts and charter schools of the State, or in other state institutions and agencies or in special programs and private agencies as established or approved by the Department with the approval of the State Board, that each child with a disability as defined in this chapter shall receive a free and appropriate public education designed to meet that child with a disability’s own needs. The Department of Education shall be the agency responsible for the implementation of this required provision. 61 Del. Laws, c. 190, §  7 ; 70 Del. Laws, c. 186, §  1 ; 71 Del. Laws, c. 180, §§  148, 148A ; 77 Del. Laws, c. 424, §  12 ; § 3121 Special classes and facilities. Each school district, charter school and other state agencies responsible for the care of Delaware citizens shall provide and maintain, under appropriate regulations of the Department of Education approved by the State Board of Education, special classes and facilities to meet the needs of children with a disability as herein defined and recommended for special education or training who are residents of any geographical area within the State and who can be served by such special classes and facilities. This and other sections of this chapter and this title may be carried out by assigning children who are residents of 1 school district to attend classes in facilities of another school district according to Chapter 6 of this title concerning tuitions. Placement in a state agency that is not part of the public school system shall be in accordance with rules developed under § 3110 of this title. 42 Del. Laws, c. 125, §  1 ; 14 Del. C. 1953, §  3103; 51 Del. Laws, c. 287, §  2 ; 61 Del. Laws, c. 190, §  7 ; 71 Del. Laws, c. 180, §§  148A, 149 ; 77 Del. Laws, c. 424, §  13 ; § 3122 Identification and reporting of child with a disability. (a) Except as noted in subsection (b) of this section regarding parentally-placed private school children, each school district shall be required to identify, locate and evaluate, or reevaluate, any children with disabilities residing within the confines of that school district, including children with disabilities who are homeless children or wards of the State, regardless of the severity of the disability, and who are in need of special education and related services. (b) Each school district, excluding vocational school districts, shall be required to identify, locate and evaluate, or reevaluate, any children with disabilities who are enrolled by their parents in private schools located within the confines of that school district, regardless of the severity of the disability, and who are in need of special education and related services. 42 Del. Laws, c. 125, §  1 ; 14 Del. C. 1953, §  3105; 51 Del. Laws, c. 287, §  2 ; 61 Del. Laws, c. 190, §  7 ; 70 Del. Laws, c. 186, §  1 ; 71 Del. Laws, c. 180, §§  148A, 150 ; 77 Del. Laws, c. 424, §  14 ; 78 Del. Laws, c. 397, §  1 ; § 3123 Supportive services and residential programs. (a) Any school district administering a program for children with autism may provide from its own personnel or contract with another state agency or a private service provider if necessary for appropriate supportive services, including, but not limited to, physical, art and music education, psychological services, language and speech therapy, physical and occupational therapy. The supportive services to be provided shall be based upon a program for each child as approved by the Department of Education; provided, that the State Board may review any objection to the Department’s decision. The school district designated by the Department with State Board approval as the administering agency for a statewide program for autistic pupils shall annually submit in its budget a request for funds for such services. (b) Community-based residential units for children with autism may be operated by a school district designated and approved by the Department with State Board approval as the administering agency for a statewide program for autistic pupils. When the school district operates a community-based residential program, that program shall meet the following minimum standards: (1) Pre-puberty and post-puberty children shall be housed separately. In no case shall a child under age 12 be housed with a child over age 16 except as approved by the Human Rights and Peer Review committees of the statewide autistic program. (2) Residential units shall be provided at the rate of 1 residential unit for each 4 residential pupils except that a maximum of 5 pupils may be housed in 1 residential unit. At no time shall the total number of pupils exceed 6. (3) Residential teacher coordinators shall be provided for a period of 12 months per year at the rate of 3 full-time equivalent teacher coordinators per residential unit. (4) Residential child care specialists shall be provided for a period of 12 months per year at the rate of 6 full-time equivalent residential child care specialists per residential unit. The Department with the approval of the State Board of Education shall determine the necessary educational requirements for the residential child care specialists. 61 Del. Laws, c. 190, §§  5, 8 ; 64 Del. Laws, c. 381, §§  1, 2 ; 71 Del. Laws, c. 180, §  151 ; 77 Del. Laws, c. 424, §  15 ; 83 Del. Laws, c. 325, § 389 ; § 3124 Private placement with financial aid. (a) Private placement with financial aid may be sought when an Individual Education Program (IEP) team finds that an eligible child with a disability cannot benefit from the regularly offered free appropriate public educational programs which include regular classes, special classes or special schools. The determination shall be made by the IEP team and by the Department of Education that no school district or other state agency has a suitable free and appropriate program of education for that particular child with a disability. Such private placement shall be in a school or institution approved by the Department of Education in keeping with its oversight responsibilities. Given the nature of these services, such placements shall be exempt from the requirements of Chapter 69 of Title 29. (b) Before the Department of Education can authorize expenditures for new placements according to this section, the case must be reviewed by the Interagency Collaborative Team (ICT). (1) The ICT shall consist of: a. Division Director, Division of Prevention and Behavioral Health Services of the Department of Services for Children, Youth and Their Families (DSCYF); b. Division Director, Family Services of DSCYF; c. Division Director, Division of Youth Rehabilitation Services of DSCYF; d. Division Director, Division of Developmental Disabilities Services of the Department of Health and Social Services (DHSS); e. Division Director, Division of Substance Abuse and Mental Health of DHSS; f. Director of the Office of Management and Budget or designee; g. The Controller General or designee; h. Director, Exceptional Children’s Group, Department of Education (DOE), who will serve as Chair; and i. Associate Secretary, Curriculum and Instructional Improvement, DOE. (2) A director assigned to the ICT may designate staff to represent the director on the ICT only if these designated representatives are empowered to act on behalf of the division director, including commitment of division resources for a full fiscal year. (3) The ICT shall invite to its meetings: a. A representative of a responsible school district for the case under consideration; b. The parents of the child; c. Other persons the team believes can contribute to their deliberations. (4) The ICT shall: a. Review existing assessments of new referrals; b. Prescribe, if required, additional assessments for new referrals; c. Review proposed treatment plans of new referrals; d. Recommend alternatives for treatment plans of new referrals; e. Coordinate interagency delivery of services; f. Review, at least annually, current unique alternatives for the appropriateness of treatment plans and transition planning; g. If appropriate, designate a primary case manager for the purpose of coordination of service agencies; h. If appropriate, designate agencies to be involved in collaborative monitoring of individual cases. (5) The ICT will ensure that state costs incurred as the result of a Team recommendation or assessment of a child currently funded from the Unique Alternatives appropriation will be covered from the existing appropriation. New referrals will be assessed in the interagency manner described above. The ICT shall accept and review cases initiated by other agencies, but in all cases the school district of residence must be involved in the review. (6) Cases reviewed by the ICT will employ Unique Alternatives funding to cover state costs to the extent determined appropriate by the Interagency Collaborative Team. Other agencies may recognize a portion of the responsibility for the treatment of these children if determined appropriate by the Team. Cases involving individuals who are wards of the State shall be fully funded from Unique Alternatives funding. Funds may be transferred upon the approval of the Director of the Office of Management and Budget and the Controller General. (7) The ICT shall report on its activities to the Governor, Director of the Office of Management and Budget, President Pro Tempore, Speaker of the House and the Controller General by February 15 of each year. The report shall address the status of items addressed in the previous February ICT Annual Report. (c) Disputes concerning the private placement of a child are subject to the hearing procedures set forth in § 3135 of this title. Subject to the parties’ right to appeal, the decision of the hearing panel appointed by the Secretary of Education is final and binding on all parties and the State Board of Education. (d) Financial aid shall include tuition for special education and related services as defined in the Individuals with Disabilities Education Act (IDEA) [20 U.S.C. § 1400, et seq.] to include daily transportation for a private day program and room and board for a residential program. Transportation for a residential program will include, at a minimum, transportation to and from the facility at the start and end of each school term and when the school is officially closed to students. Reimbursement for other trips home or for the parents’ travel costs to accompany the child or to attend conferences at the facility shall be determined on a case-by-case basis. (e) The Department of Education is authorized to continue utilizing funds appropriated for this section to develop unique educational alternatives, in lieu of private placement, for children who have been found unable to benefit from the regularly offered free, appropriate public educational programs and students in present education programs within this State whose individual education plan requires services not presently available within the present unit funding system. Unique educational alternatives shall be defined and approved by the Department of Education and may include, but not be limited to, related and supportive services. Any placement made pursuant to this subsection shall be considered a special program placement and shall be eligible for inclusion in local school district tuition tax rate setting per § 604(c) of this title. 61 Del. Laws, c. 190, §§  5, 8 ; 61 Del. Laws, c. 271, §  1 ; 61 Del. Laws, c. 337, §§  1, 2 ; 64 Del. Laws, c. 63, §  4 ; 70 Del. Laws, c. 186, §  1 ; 71 Del. Laws, c. 180, §§  148A, 152 ; 73 Del. Laws, c. 321, §§  12, 13 ; 74 Del. Laws, c. 98, §  1 ; 75 Del. Laws, c. 88, §  21(7) ; 76 Del. Laws, c. 280, §  383 ; 77 Del. Laws, c. 327, §  210(a) ; 77 Del. Laws, c. 424, §§  16-20 ; 81 Del. Laws, c. 58, § 366 ; § 3125 Parent councils. Each school district and charter school enrolling any child with disabilities shall, on an annual basis, contact the parents of each such child to attempt to facilitate the creation and maintenance of a parent council for the parents of students with disabilities. Parent councils will advocate generally for students with disabilities and provide person-to-person support for individual parents and children. The charter schools and school districts shall collaborate and coordinate with existing parent groups and other information and support groups to facilitate creation, maintenance, and effectiveness of the parent councils. 80 Del. Laws, c. 37, §  1 ; § 3125A Individualized education program (IEP) training for charter schools. Effective January 1, 2016, each charter school will designate and maintain at least 1 professional staff member who has completed training approved by the Department of Education regarding the legal responsibilities of charter schools with respect to preparation of IEPs for students with disabilities and resources available to charter schools to assist in preparation of such programs. The Department of Education, by regulation, shall define the scope and timetable of initial and refresher training. 80 Del. Laws, c. 37, §  1 ; Delaware General Assembly Judicial Executive Contact Twitter Help function submitSearch() { if (!window.location.origin) { window.location.origin = window.location.protocol + "//" + window.location.hostname + (window.location.port ? ':' + window.location.port : ''); } keyword = document.getElementById('srch-term').value; window.location.href = "/Search?query=" + keyword; } document.getElementById('srch-term').onkeyup = function (e) { if (e.keyCode == 13) { submitSearch(); } } § 3126 Rules and regulations. The extent of programs and facilities provided for children determined to be gifted or talented shall be in accordance with the rules and regulations of the Department as approved by the State Board of Education. 48 Del. Laws, c. 194, §  2 ; 14 Del. C. 1953, §  3102; 51 Del. Laws, c. 287, §  2 ; 61 Del. Laws, c. 190, §  7 ; 71 Del. Laws, c. 180, §  153 ; 77 Del. Laws, c. 424, §  21 ; Delaware General Assembly Judicial Executive Contact Twitter Help function submitSearch() { if (!window.location.origin) { window.location.origin = window.location.protocol + "//" + window.location.hostname + (window.location.port ? ':' + window.location.port : ''); } keyword = document.getElementById('srch-term').value; window.location.href = "/Search?query=" + keyword; } document.getElementById('srch-term').onkeyup = function (e) { if (e.keyCode == 13) { submitSearch(); } } § 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 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, either personally or through a representative, 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. 64 Del. Laws, c. 63, §  1 ; 77 Del. Laws, c. 424, §  22 ; 85 Del. Laws, c. 8, § 1 ; § 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. 64 Del. Laws, c. 63, §  1 ; 70 Del. Laws, c. 186, §  1 ; 77 Del. Laws, c. 424, §  23 ; 80 Del. Laws, c. 37, §  2 ; § 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. 64 Del. Laws, c. 63, §  1 ; 71 Del. Laws, c. 180, §  154 ; 77 Del. Laws, c. 424, §  24 ; 80 Del. Laws, c. 252, § 2 ; § 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. 64 Del. Laws, c. 63, §  1 ; 77 Del. Laws, c. 424, §  25 ; § 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. 64 Del. Laws, c. 63, §  1 ; 77 Del. Laws, c. 424, §  26 ; 80 Del. Laws, c. 37, §  2 ; § 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. 64 Del. Laws, c. 63, §  1 ; 71 Del. Laws, c. 180, §  155 ; § 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. 64 Del. Laws, c. 63, §  1 ; 71 Del. Laws, c. 180, §  155 ; 77 Del. Laws, c. 424, §§  27-29 ; § 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. 64 Del. Laws, c. 63, §  1 ; 70 Del. Laws, c. 186, §  1 ; 71 Del. Laws, c. 180, §§  155, 156 ; 77 Del. Laws, c. 424, §  30 ; 78 Del. Laws, c. 397, §  2 ; § 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. 64 Del. Laws, c. 63, §  1 ; 71 Del. Laws, c. 180, §  157 ; 74 Del. Laws, c. 98, §§  2-4 ; 77 Del. Laws, c. 424, §  31 ; 78 Del. Laws, c. 393, §  1 ; § 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. 64 Del. Laws, c. 63, §  1 ; 70 Del. Laws, c. 186, §  1 ; 71 Del. Laws, c. 180, §  157 ; § 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. 64 Del. Laws, c. 63, §  1 ; § 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. 64 Del. Laws, c. 63, §  1 ; § 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. 64 Del. Laws, c. 63, §  1 ; 70 Del. Laws, c. 186, §  1 ; 71 Del. Laws, c. 180, §  157 ; 74 Del. Laws, c. 98, §  5 ; § 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. 64 Del. Laws, c. 63, §  1 ; 70 Del. Laws, c. 186, §  1 ; Delaware General Assembly Judicial Executive Contact Twitter Help function submitSearch() { if (!window.location.origin) { window.location.origin = window.location.protocol + "//" + window.location.hostname + (window.location.port ? ':' + window.location.port : ''); } keyword = document.getElementById('srch-term').value; window.location.href = "/Search?query=" + keyword; } document.getElementById('srch-term').onkeyup = function (e) { if (e.keyCode == 13) { submitSearch(); } }