Ga. Comp. R. & Regs. R. 160-4-7-.12 - Dispute Resolution
(1)
COMPLAINT PROCESS. An
organization or individual, including an organization or individual from
another state, may file a signed, written complaint regarding allegations of
substance. The complaint shall include a statement that the LEA has violated
requirements of the IDEA and the facts on which the statement is based, the
signature and contact information for the complainant, and, if alleging
violations with respect to a specific child, the name and address of the
residence of the child, the name of the school the child is attending, in the
case of a homeless child or youth, available contact information for the child
and the name of the school the child is attending, a description of the nature
of the problem, including facts relating to the problem, and a proposed
resolution to the problem to the extent known and available to the party at the
time the complaint is filed. [34 C.F.R. §
300.151(a);
34 C.F.R. §
300.153(a) & (b)]
(a)
The complaint must allege a
violation that occurred not more than one year prior to the date the complaint
is received. [34 C.F.R.
§
300.153]
(b) The party filing the complaint must
forward a copy of the complaint to the LEA at the same time the party files the
complaint with the GaDOE. [34 C.F.R. §
300.153(d)]
(c) The complaint shall be reviewed and
investigated as necessary and appropriate action taken within 60 calendar days
of its receipt by the GaDOE.
(d) If
a written complaint is received that is also the subject of an impartial due
process hearing or contains multiple issues, some of which are a part of an
impartial due process hearing, the portions of the complaint that are not a
part of that hearing shall be resolved, following the time limits and
procedures described in this rule. The portions of the complaint which are also
the subject of an impartial due process hearing shall be set aside pending the
conclusion of the hearing. [34 C.F.R. §
300.152(c)(1)]
(e) If a written complaint is received which
contains issues previously decided in an impartial due process hearing
involving the same parties, the hearing decision is binding on that issue, and
the complainant shall be so informed by the GaDOE. However, a complaint
alleging a LEA's failure to implement an impartial due process hearing decision
shall be resolved, following the time limit and procedures described in this
rule. [34 C.F.R. §
300.152(c)(2) - (3)]
(f) Through activities of the
GaDOE and the LEAs, the state complaint procedures will be widely disseminated
to parents and other interested individuals, including parent training and
information centers, protection and advocacy agencies, independent living
centers, and other appropriate entities. [See
34 C.F.R. §
300.151(a)(2)]
(g) The complaint procedure is as follows.
1. Complaints from any organization or
individual shall be signed and addressed in writing to:
Director, Division for Special Education Services
Georgia Department of Education
1870 Twin Towers East
Atlanta, Georgia 30334-5010
2. The party filing the complaint must
forward a copy of the complaint to the LEA serving the child at the same time
the party files the complaint with the State. The complaint should be forwarded
to the Superintendent or the Special Education Director of the LEA.
3. The complaint shall include a statement
that the State or LEA has violated a requirement of Part B of IDEA and the
facts on which the statement is based, the signature and contact information
for the complainant, and, if alleging violations with respect to a specific
child, the name and address of the residence of the child, the name of the
school the child is attending, in the case of a homeless child or youth,
available contact information for the child and the name of the school the
child is attending, a description of the nature of the problem of the child,
including facts relating to the problem, and a proposed resolution to the
problem to the extent known and available to the party at the time the
complaint is filed. [34
C.F.R. §
300.153(b)]
4. The Divisions for Special
Education Services and Supports shall address the issue with the LEA in writing
and request a response within 10 business days from the public agency directly
involved.
(i) The LEA involved shall respond
directly in writing and shall describe any explanation and/or actions relevant
to the allegations.
(ii) Copies of
all correspondence shall besent to the parties involved that include the
complainant, the GaDOE and the LEA. In some cases, where the parent of the
child is not the complainant, the parent shall also receive copies of all
correspondence and the complainant may only receive copies of information that
include personally identifiable information if the parent has provided consent
to release such information.
5. The parent who files the complaint and the
LEA shall have the opportunity to voluntarily engage in mediation to resolve
the issues within the complaint. [34 C.F.R. §
300.152(a)(3)(ii)]
6. Upon receipt of the first State
complaint from a parent in a school year, the LEA involved shall provide the
parent with a copy of procedural safeguards available to the parents of a child
with a disability. [34
C.F.R. §
300.504(a)(2)]
7. The Divisions For Special
Education Supports And Services shall review the LEA's response and a decision
may then be made that no further action is required. If, however, the issue is
not fully resolved, complaint investigators from the Divisions For Special
Education Supports And Services shall be assigned to carry out an independent
investigation, including an on-site visit, if necessary, to clarify the issue.
[34 C.F.R. §
300.152(a)(1)]
8. The on-site complaint team shall gather
information to determine whether there has been a violation of state rules
and/or Part B of the IDEA. The on-site review may include examination of
records, interviews and classroom visits.
9. The Divisions For Special Education
Supports And Services shall give the complainant the opportunity to submit
additional information, either orally or in writing, regarding the allegations
in the complaint. [34 C.F.R.
§
300.152(a)(2)]
10. The Divisions For Special
Education Supports And Services shall review all relevant information and make
an independent determination as to whether the LEA is violating a requirement
of Part B of the IDEA. [34
C.F.R. §
300.152(a)(4)]
11. The Divisions For Special
Education Supports And Services shall issue a written decision to the LEA and
the complainant that addresses each allegation in the complaint and includes
findings of fact and conclusions and the reasons for the final decision.
[34 C.F.R. §
300.152(a)(5)]
(i) The Divisions For Special Education
Supports And Services shall include in the decision the steps necessary to
resolve the complaint, including technical assistance activities, negotiations,
and corrective actions to achieve compliance. [34 C.F.R. §
300.152(b)(2)] This letter
of notification shall include specific requirements and timelines that shall be
met in order to continue to receive IDEA federal funds or state special
education funds.
(ii) If
the complaint findings indicate a failure to provide appropriate services, the
complaint resolution process will address how the LEA is to remediate the
denial of those services, including, as appropriate, the awarding of monetary
reimbursement or other corrective action appropriate to the needs of the child
and to the future provision of services for all students with disabilities.
[34 C.F.R. §
300.151(b)]
(iii) GaDOE must
not make any final determination that a LEA is not eligible for assistance
under part B of the Act without first giving the LEA reasonable notice and an
opportunity for a hearing under
34 C.F.R. §
76.401(d). [34 C.F.R. §
300.155] GaDOE's hearing process can be found
in Rule 160-5-2-.02
Withholding of Funds from Local Units of Administration.
12. An extension of the 60
calendar-day time limit for resolution may be made by the GaDOE only when
exceptional circumstances exist with respect to a particular complaint or if
the parent or other complainant and the LEA involved agree to extend the time
to engage in mediation, or to engage in other alternative means of dispute
resolution. [34 C.F.R.
§
300.152(b)]
(h) Complaints -
Private Schools. Complaints that a LEA has failed to meet the requirements
regarding children who are parentally-placed in private schools must be filed
under the complaint procedures outlined above. Complaints regarding child find
are to be filed with the LEA in which the private school is located and a copy
forwarded to the GaDOE. [34
C.F.R. §
300.140]
(2) MEDIATION PROCESS. Each LEA
shall ensure that procedures are established and implemented to allow parties
to disputes involving any matter relating to the identification, evaluation,
educational placement, or the provision of a free appropriate public education
(FAPE) to resolve such disputes through a mediation process.
(a) The mediation process shall be available
on request of either party to resolve disputes.
(b) Mediation shall be available and offered
upon each receipt of a complaint or a due process hearing request.
(c) The procedures shall ensure that the
mediation process:
1. Is voluntary on the part
of the parties;
2. Is not used to
deny or delay a parent's right to a hearing on the parent's due process
complaint, or to deny any other rights afforded under Part B of IDEA;
and
3. Is conducted by a qualified
and impartial mediator who is trained in effective mediation techniques.
[34 C.F.R. §
300.506(b)(1)(i) - (iii)]
(d) A LEA may establish
procedures to offer to parents and schools that choose not to use the mediation
process, an opportunity to meet at a time and location convenient to the
parents with a disinterested party who is under contract with an appropriate
alternative dispute resolution entity, a parent training and information center
or a community parent resource center in the State established under section
671 or 672 of IDEA, who would explain the benefits of and encourage the use of
the mediation process to the parents. [34 C.F.R. §
300.506(b)(2)]
(e) The GaDOE shall maintain a list of
individuals who are qualified mediators and knowledgeable in laws and
regulations relating to the provision of special education and related
services. Mediators shall be selected on a random, rotational or other
impartial basis. [34 C.F.R.
§
300.506(b)(3)(i) -
(ii)]
1. An
individual who serves as a mediator may not be an employee of the GaDOE or the
LEA that is involved in the education or care of the child; and
2. Mediators must not have a personal or
professional interest that conflicts with the person's objectivity.
(i) A person who otherwise qualifies as a
mediator is not an employee of a LEA or State agency solely because he or she
is paid by the GaDOE to serve as a mediator. [34 C.F.R. §
300.506(c)]
(f) The State shall
bear the cost of the mediation process. [34 C.F.R. §
300.506(b)(4)]
(g) Each session in the mediation process
shall be scheduled in a timely manner and shall be held in a location that is
convenient to the parties to the dispute. [34 C.F.R. §
300.506(b)(5)]
(h) If the parties resolve a dispute through
the mediation process, they shall execute a legally binding agreement that sets
forth the resolution and states that:
1.
Discussions that occur during the mediation process shall be confidential and
may not be used as evidence in any subsequent due process hearings or civil
proceedings; and
2. Is signed by
both the parent and a representative of the LEA with the authority to bind the
LEA.
3. The written signed
mediation agreement is enforceable in any state court of competent
jurisdiction, in a district court of the United States or through the State
Complaint Process. [34
C.F.R. §
300.506(b)(6) -
(7); §
300.537]
(3) IMPARTIAL DUE PROCESS
HEARINGS. The impartial due process hearing is designed to provide a
parent or LEA an avenue for resolving differences with regard to the
identification, evaluation, placement or provision of a (FAPE) to a child with
a disability.
(a) The due process hearing
request must allege a violation that occurred not more than two years before
the date the parent or LEA knew or should have known about the alleged action
that forms the basis of the due process hearing request. [34 C.F.R. §
300.507(a)(2)]
1. The timeline does not apply to a parent if
the parent was prevented from filing a due process complaint due to specific
misrepresentations by the school district that it had resolved the problem
forming the basis of the complaint; or
2. The school district's withholding of
information from the parent that was required to be provided to the parent
[34 C.F.R. §
300.511(f)]
(b) Due process hearings are
provided at no cost to either party; however each party is responsible for his,
her, or its costs associated with hiring legal counsel or expert witnesses
unless a court awards the recovery of such costs to the prevailing
party
(c) The LEA must inform the
parents of low-cost or no cost legal and other relevant services available if
the parent requests the information or whenever a due process request is
received by the LEA. [34
C.F.R. §
300.507(b)]
(d) Due Process Request Procedures
are as follows:
1. The party filing a due
process hearing request must provide a copy to the other party and the state.
When the party filing a due process hearing request is not the LEA, the party
must provide a copy to the LEA's Superintendent at the same time it provides it
to the State.
2. Either party, or
the attorney representing either party, may file the due process hearing
request.
3. The state and the
parties shall keep the content of the due process request confidential.
[34 C.F.R. §
300.508(a)(1) - (2)]
4. The content of the complaint
must include:
(i) The name of the
child;
(ii) The address of the
residence of the child;
(iii) The
name of the school and the LEA the child is attending;
(I) For a homeless child, the contact
information for the child and the name of the school and LEA the child is
attending;
(iv) A
description of the nature of the problem of the child relating to the proposed
or refused initiation or change in the identification, evaluation, placement or
provision of a free appropriate public education (FAPE) including the facts
relating to the problem;
(v) A
proposed resolution to the problem to the extent known and available to the
party at the time. [34
C.F.R. §
300.508(b)(1) -
(6)]
5. A hearing may not occur until the party or
the attorney representing the party files a request that meets the requirements
stated above. [34 C.F.R.
§
300.508(c)]
6. The request for the due process
hearing must be deemed sufficient unless the receiving party notifies the
hearing officer and the other party in writing, within 15 days of receipt of
the due process request that the receiving party does not believe the request
meets the requirements above. [34 C.F.R. §
300.508(d)(1)]
(i) Within five days of receipt of
notification of alleged insufficiency, the administrative law judge or hearing
officer must make a determination on the face of the due process request of
whether it meets the requirements and must immediately notify the parties in
writing of that determination. [34 C.F.R. §
300.508(d)(2)]
7. A party may amend its due
process request only if:
(i) The other party
consents in writing to the amendment and is given the opportunity to resolve
the due process request through mediation or a resolution meeting; or
(ii) The administrative law judge or hearing
officer grants permission not later than five days prior to the beginning of
the hearing. [34 C.F.R.
§
300.508(d)(3)(i) -
(ii)]
(iii) If an amended due process hearing
request is appropriately filed, the timelines for the resolution meeting and
the resolution period begin again. [34 C.F.R. §
300.508(d)(4)]
8. LEA response to a due process
hearing request.
(i) If the LEA has not sent
prior written notice regarding the subject matter of the due process hearing
request to the parent, the LEA must within ten days of receiving the due
process hearing request, send to the parent a response that includes:
(I) An explanation of why the LEA proposed or
refused to take action; a description of other options that the IEP team
considered and the reasons why these options were rejected; a description of
each evaluation procedure, assessment, record, or report the LEA used as the
basis for the proposed or refused action; a description of the other factors
that are relevant to the LEA's proposed or refused action. [34 C.F.R. §
300.508(e)(1)(i) - (iv)]
9. The LEA
response does not preclude the LEA from asserting that the parent's due process
request is insufficient. [34
C.F.R. §
300.508(e)(2)]
10. Unless responded to as above,
any party receiving a due process hearing request must send to the other party
within ten days a response that specifically addresses the issues raised in the
due process hearing request. [34 C.F.R. §
300.508(f)]
(e) Resolution process: Within 15
days of receiving a parent's due process hearing request and prior to the
initiation of a due process hearing, the LEA must convene a meeting with the
parent and relevant members of the IEP Team who have knowledge of the facts
identified in the due process request that:
1. Includes a representative of the LEA who
has decision-making authority on behalf of the LEA; and
2. May not include an attorney for the
District unless the parent is accompanied by an attorney. [34 C.F.R. §
300.510(a)(1)(i) - (ii)]
3. The parent and the LEA
determine the relevant members of the IEP Team to attend the meeting.
[34 C.F.R. §
300.510(a)(4)]
4. The purpose of the meeting is for the
parent of the child to discuss the due process hearing request, and the facts
that form the basis of the request, so that the LEA has the opportunity to
resolve the dispute that is the basis of the request for a due process hearing.
[34 C.F.R. §
300.510(a)(2)]
5. The resolution meeting need not be held if
the parent and the LEA agree in writing to waive the meeting; or the parent and
the LEA agree to use mediation to attempt to resolve the due process hearing
request. [34 C.F.R. §
300.510(a)(3)(i) - (ii)]
(f) The resolution
period: If the LEA has not resolved the due process hearing request to the
satisfaction of the parent within 30 days of the receipt of the due process
complaint, the due process hearing may occur. [34 C.F.R. §
300.510(b)(1)]
1. The failure or refusal of the parent to
participate in the resolution meeting shall delay the timelines for the
resolution process and the due process hearing until the meeting is held,
unless the parties have agreed to waive the resolution meeting or to
participate in mediation. [34 C.F.R. §
300.510(b)(3)]
2. If the LEA is unable to obtain the
participation of the parent in the resolution meeting after reasonable efforts
have been made (and documented using the procedures in Rule
160-4-7-.06(11)(d))
[34 C.F.R. §
300.322(d)], the LEA may at
the conclusion of the 30-day resolution period, request that an administrative
law judge or hearing officer dismiss the parent's due process hearing request.
[34 C.F.R. §
300.510(b)(4)]
3. If the LEA fails to hold the resolution
meeting within 15 days of receiving notice of a parent's due process hearing
request or fails to participate in the resolution meeting, the parent may seek
the intervention of an administrative law judge or hearing officer to begin the
due process hearing timeline. [34 C.F.R. §
300.510(b)(5)]
(g) The timeline for issuing a
decision in a due process hearing begins at the expiration of the 30-day
resolution period, unless an adjustment to the 30-day resolution period is
necessary.
1. The 45-day timeline for the due
process hearing starts the day after the administrative law judge or hearing
officer has been informed of one of the following events:
(i) Both parties agree in writing to waive
the resolution meeting;
(ii) After
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;
(iii) If both parties
agree in writing to continue the mediation at the end of the resolution period,
but later, the parent or LEA withdraws from mediation. [34 C.F.R. §
300.510(c)(1) - (3)]
(h) If a resolution to the dispute is reached
at the resolution meeting, the parties must execute a legally binding agreement
that is signed by both the parent and a representative of the LEA who has the
authority to bind the LEA; [34 C.F.R. §
300.510(d)(1)]
1. The agreement is enforceable in any State
court of competent jurisdiction or in a district court of the United States, or
through the State Complaint Process. [34 C.F.R. §
300.510(d)(2); §
300.537]
2. If the parties execute an agreement, a
party may void the agreement within three business days of the agreement's
execution. [34 C.F.R. §
300.510(e)]
(i) The impartial administrative law judge or
hearing officer. At a minimum, an administrative law judge or hearing officer:
1. Must not be an employee of the GaDOE or
the LEA that is involved in the education or care of the child; [34 C.F.R. §
300.511(c)(1)(i)(A)]
(i) A person who otherwise qualifies to
conduct a hearing is not an employee of the GaDOE or its representatives solely
because he or she is paid by GaDOE to serve as an administrative law judge or
hearing officer. [34 C.F.R.
§
300.511(c)(2)]
2. Must not be a person
having a personal or professional interest that conflicts with the person's
objectivity in the hearing; [34 C.F.R. §
300.511(c)(1)(i)(B)]
3. Must not be previously familiar
with the student or the parents/guardian/surrogate unless through previous
administrative procedures;
4. Must
not be previously personally familiar with the specific program or services of
the LEA at issue in the hearing. Information arising solely from previous due
process hearings shall not impair an administrative law judge's impartiality,
but information or personal knowledge from other sources about the specific LEA
or family, including the education or employment of the administrative law
judge's family shall impair that particular individual's impartiality in the
particular case;
5. When any factor
or event may impair or appear to impair the impartiality of the administrative
law judge, such factors shall be timely disclosed to all parties.
6. Must possess knowledge of, and the ability
to understand, the provisions of the IDEA, Federal and State regulations
pertaining to the IDEA, and legal interpretations of the IDEA by Federal and
State courts; [34 C.F.R.
§
300.511(c)(1)(ii)]
7. Must possess the knowledge and
ability to conduct hearings in accordance with appropriate, standard legal
practice; and [34 C.F.R.
§
300.511(c)(1)(iii)]
8. Must possess the knowledge and
ability to render and write decisions in accordance with appropriate, standard
legal practice. [34 C.F.R.
§
300.511(c)(1)(iv)]
9. GaDOE or its representatives
must keep a list of the persons who serve as administrative law judges or
hearing officers. The list must include a statement of the qualifications of
each of those persons. [34
C.F.R. §
300.511(c)(2)]
(j) Subject matter of
due process hearings. The party requesting the due process hearing may not
raise issues at the due process hearing that were not raised in the due process
hearing request, unless the other party agrees otherwise. [34 C.F.R. §
300.511(d)]
(k) Timeline for requesting a hearing. A
parent or agency must request an impartial hearing on their due process hearing
request within two years of the date the parent or agency knew or should have
known about the alleged action that forms the basis of the due process request.
[34 C.F.R. §
300.511(e)]
1. Exceptions to the timeline. The timeline
does not apply to a parent if the parent was prevented from filing a due
process hearing request due to specific misrepresentations by the LEA that it
had resolved the problem forming the basis of the due process hearing request;
or the LEA's withholding of information from the parent that was required to be
provided to the parent. [34
C.F.R. §
300.511(f)(1) -
(2)]
(l) Any party to a due process 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; [34 C.F.R. §
300.512(a)(1)]
2. Present evidence and confront,
cross-examine, and compel the attendance of witnesses; [34 C.F.R. §
300.512(a)(2)]
3. Prohibit the introduction of any evidence
at the hearing that has not been disclosed to that party at least five business
days before the hearing; [34
C.F.R. §
300.512(a)(3)]
4. Obtain a written, or, at the
option of the parents, electronic, verbatim record of the hearing;
[34 C.F.R. §
300.512(a)(4)]
5. Obtain written, or, at the option of the
parents, electronic findings of fact and decisions. [34 C.F.R. §
300.512(a)(5)]
6. Disclosure by each party to the other
party at least five business days prior to a hearing all evaluations completed
by that date and recommendations based on the offering party's evaluations that
the party intends to use at the hearing. [34 C.F.R. §
300.512(b)(1)]
(i) An administrative law judge or hearing
officer may bar any party that fails to comply with this disclosure rule from
introducing the relevant evaluation or recommendation at the hearing without
the consent of the other party. [34 C.F.R. §
300.512(b)(2)]
7. The calculation of
business days under this section for the purposes of disclosure shall be
calculated in accordance with the Georgia Civil Practice Act, O.C.G.A. §
9-11-6; O.C.G.A.
1-3-1(d)(3).
8. Obtain a list of all potential witnesses
at least five business days before the hearing. If the witness list, due to its
length or other factors, does not reasonably disclose the potential witnesses
in the hearing, any party or the administrative law judge on his/her own motion
may require a party to amend his/her witness list to include only the names of
such persons who may actually testify and the general thrust of their
testimony.
(m) The
parties may agree to settle the matters in dispute at any time whereupon the
ALJ, upon written request, shall enter an order dismissing the matter.
1. A party may file a motion for voluntary
dismissal at any time, up until five days before the scheduled date of the
hearing. No motion for voluntary dismissal shall be considered if filed after
that time.
2. Any motion for
voluntary dismissal filed pursuant to this subsection shall include a statement
of the reason(s) for requesting dismissal.
3. Within five (5) days after service of the
motion for voluntary dismissal pursuant to this subsection, the opposing party
may file a response to the motion for voluntary dismissal.
4. If the ALJ determines that the motion has
been made for good cause, the case shall be dismissed without prejudice and the
party shall be authorized to re-file the complaint within the time authorized
under the applicable statute(s) of limitations.
5. If the ALJ determines that there is a lack
of good cause, and the party fails to appear at any scheduled hearing, or to
otherwise prosecute their case, the party's claims will be deemed abandoned and
dismissed with prejudice.
(n) The party seeking relief shall bear the
burden of persuasion with the evidence at the administrative hearing. The
administrative law judge or hearing officer shall retain the discretion to
modify and apply this general principle to conform with the requirements of law
and justice in individual cases under unique or unusual circumstances as
determined by the administrative law judge or hearing officer.
(o) Parents involved in hearings must be
given the right to:
1. Have the child who is
the subject of the hearing present;
2. Open the hearing to the public;
and
3. Have the record of the
hearing and the findings of fact and decisions provided at no cost to parents.
[34 C.F.R. §
300.512(c)(1) - (3)]
(p) An administrative
law judge or hearing officer's determination of whether a child received FAPE
must be based on substantive grounds. [34 C.F.R. §
300.513(a)(1)]
1. In matters alleging a procedural
violation, an administrative law judge or hearing officer may find that a child
did not receive a FAPE only if the procedural inadequacies:
(i) Impeded the child's right to a
FAPE;
(ii) Significantly impeded
the parent's opportunity to participate in the decision-making process
regarding the provision of a FAPE to the parent's child; or
(iii) Caused a deprivation of educational
benefit. [34 C.F.R. §
300.513(a)(2)(i) - (iii)]
(I) Nothing in this paragraph shall be
construed to preclude an administrative law judge or hearing officer from
ordering a LEA to comply with procedural requirements. [34 C.F.R. §
300.513(a)(3)]
(q) Nothing
in this Rule shall be construed to preclude a parent from filing a separate due
process hearing request on an issue separate from a due process hearing request
already filed. [34 C.F.R.
§
300.513(c)]
(r) The GaDOE, after deleting any
personally identifiable information, must transmit the findings and decisions
to the State advisory panel and make those findings and decisions available to
the public. [34 C.F.R.
§
300.513(d)(1) - (2)]
(s) A decision made in a due
process hearing is final, except that any party involved in the hearing may
appeal the decision under the provisions in paragraph (s) below. [34 C.F.R. §
300.514(a)]
(t) The GaDOE must ensure that not later than
45 days after the expiration of the 30-day resolution period or the adjusted
resolution time periods that:
1. A final
decision is reached in the hearing; and
2. A copy of the decision is mailed to each
of the parties. [34 C.F.R.
§
300.515(a)(1) - (2)]
3. An administrative law judge or
hearing officer may grant specific extensions of time beyond the periods set
out in this rule at the request of either party. The hearing officer or
administrative law judge must notify the parties in its written order granting
the extension of the new date by which the decision shall be provided.
[34 C.F.R. §
300.515(c)]
4. Each hearing must be conducted at a time
and place that is reasonably convenient to the parents and child involved.
[34 C.F.R. §
300.515(d)]
(u) Civil Action. Any party
aggrieved by the findings and decision made by an administrative law judge or
hearing officer has the right to bring a civil action with respect to the due
process hearing request notice requesting a due process hearing. The action may
be brought in any State court of competent jurisdiction or in a district court
of the United States without regard to the amount in controversy.
[34 C.F.R. §
300.516(a)]
1. The party bringing the action shall have
90 days from the date of the decision of the administrative law judge or
hearing officer to file a civil action. [34 C.F.R. §
300.516(b)]
2. In any civil action, the court:
(i) Receives the records of the
administrative proceedings directly from the administrative law judge or
hearing officer;
(ii) Hears
additional evidence at the request of a party; and
(iii) Basing its decision on the
preponderance of the evidence, grants the relief that the court determines to
be appropriate. [34 C.F.R.
§
300.516(c)(1) - (3)]
(v) The
district courts of the United States have jurisdiction of actions brought under
section 615 of the IDEA without regard to the amount in controversy.
[34 C.F.R. §
300.516(d)]
(w) Rule of construction. Nothing in this
part restricts or limits the rights, procedures, and remedies available under
the Constitution, the Americans with Disabilities Act of 1990, title V of the
Rehabilitation Act of 1973, or other Federal laws protecting the rights of
children with disabilities, except that before the filing of a civil action
under these laws seeking relief that is also available under section 615 of the
IDEA, the procedures under IDEA must be exhausted to the same extent as would
be required had the action been brought under the IDEA. [34 C.F.R. §
300.516(e)]
(x) Attorneys' fees. In any action or
proceeding brought under the due process hearing provisions of the IDEA, the
court, in its discretion, may award reasonable attorneys' fees as part of the
costs to the prevailing party who is the parent of a child with a disability;
or
(y) To a prevailing party who is
the GaDOE or LEA against the attorney of a parent who files a complaint or
subsequent cause of action that is frivolous, unreasonable, or without
foundation, or against the attorney of a parent who continued to litigate after
the litigation clearly became frivolous, unreasonable, or without foundation;
or
(z) To a prevailing GaDOE or LEA
against the attorney of a parent, or against the parent, if the parent's
request for a due process hearing or subsequent cause of action was presented
for any improper purpose, such as to harass, to cause unnecessary delay, or to
needlessly increase the cost of litigation. [34 C.F.R. §
300.517(a)(1)(i) -
(iii)]
(aa) Funds under Part B of the IDEA may not
be used to pay attorneys' fees or costs of a party related to any action or
proceeding under the due process hearing provisions of the IDEA. This does not
preclude a public agency from using funds under Part B of the IDEA for
conducting an action or proceeding under section 615 of the IDEA.
[34 C.F.R. §
300.517(b)(1) - (2)]
(bb) If a court awards reasonable
attorneys' fees, they must be based on rates prevailing in the community in
which the action or proceeding arose for the kind and quality of services
furnished. No bonus or multiplier may be used in calculating the fees awarded
under this paragraph. [34
C.F.R. §
300.517(c)(1)]
(cc) Attorneys' fees may not be
awarded and related costs may not be reimbursed in any action or proceeding
under the due process hearing provisions of IDEA for services performed
subsequent to the time of a written offer of settlement to a parent if:
1. The offer is made within the time
prescribed by Rule 68 of the Federal Rules of Civil Procedure or, in the case
of an administrative proceeding, at any time more than 10 days before the
proceeding begins;
2. The offer is
not accepted within 10 days; and
3.
The court or administrative hearing officer finds that the relief finally
obtained by the parents is not more favorable to the parents than the offer of
settlement. [34 C.F.R.
§
300.517(c)(2)(i)(A) -
(C)]
(i) An
award of attorneys' fees and related costs may be made to a parent who is the
prevailing party and who was substantially justified in rejecting the
settlement offer. [34 C.F.R.
§
300.517(c)(3)]
(dd)
Attorneys' fees may not be awarded relating to any meeting of the IEP Team
unless the meeting is convened as a result of an administrative proceeding or
judicial action, or at the discretion of the State, for mediation.
[34 C.F.R. §
300.517(c)(2)(ii)]
(ee) A meeting conducted pursuant
to the resolution process shall not be considered a meeting convened as a
result of an administrative hearing or judicial action, or an administrative
hearing or judicial action, for purposes of this section. [34 C.F.R. §
300.517(c)(2)(iii)(A) - (B)]
(ff) The court may reduce the
amount of the attorneys' fees awarded, if the court finds that:
1. The parent, or the parent's attorney,
during the course of the action or proceeding, unreasonably protracted the
final resolution of the controversy;
2. The amount of attorney's fees otherwise
authorized to be awarded unreasonably exceeds the hourly rate prevailing in the
community for similar services by attorneys of reasonably comparable skill,
reputation, and experience;
3. The
time spent and legal services furnished were excessive considering the nature
of the action or proceeding; or
4.
The attorney representing the parent did not provide to the LEA the appropriate
information in the due process hearing request notice. [34 C.F.R. §
300.517(c)(4)(i) - (iv)]
(gg) The provisions of
paragraph (dd) of this section do not apply if the court finds that the State
or LEA unreasonably protracted the final resolution of the action or proceeding
or there was a violation of section 615 of IDEA. [34 C.F.R. §
300.517(c)(5)]
(hh) Child's status during proceedings.
Except as noted in the Rule
160-4-7-.10 Discipline, during the
pendency of any administrative or judicial proceeding regarding a due process
complaint notice requesting a due process hearing, unless the State or LEA and
the parents of the child agree otherwise, the child involved in the complaint
must remain in his or her current educational placement. [34 C.F.R. §
300.518(a)]
(ii) If the due process hearing request
involves an application for initial admission to public school, the child, with
the consent of the parents, must be placed in the public school until the
completion of all the proceedings. [34 C.F.R. §
300.518(b)]
(jj) If the due process hearing request
involves an application for initial services under this part from a child who
is transitioning from Part C (Babies Can't Wait) to Part B and is no longer
eligible for Part C services because the child has turned three, the LEA is not
required to provide the Part C services that the child had been receiving. If
the child is found eligible for special education and related services under
Part B and the parent consents to the initial provision of special education
and related services, the LEA must provide those special education and related
services that are not in dispute between the parent and the LEA. [34 C.F.R. §
300.518(c)]
(kk) If the administrative law judge or
hearing officer in a due process hearing conducted by the State agrees with the
child's parents that a change of placement is appropriate, that placement must
be treated as an agreement between the LEA and the parents. [34 C.F.R. §
300.518(d)]
Notes
State regulations are updated quarterly; we currently have two versions available. Below is a comparison between our most recent version and the prior quarterly release. More comparison features will be added as we have more versions to compare.
No prior version found.