YOUR RIGHTS AS PARENTS - REGARDING SPECIAL EDUCATION The Individuals with Disabilities Education Act (IDEA), the Federal law concerning the education of students with disabilities, requires schools to provide parents of a child with a disability with notice containing a full explanation of the procedural safeguards available under the IDEA and U.S. Department of Education regulations. A copy of this notice must be given to parents only one time a school year, except that a copy must also be given to the parents: (1) upon initial referral or parent request for evaluation to determine if the student is a student with a disability; (2) upon receipt of the first written formal complaint involving the student’s system ,(3) upon receipt of the first due process complaint involving the student’s system in a school year; (4) when a decision is made to take a disciplinary action that constitutes a change of placement; and (5) upon parent request. [34 C.F.R. § 300.504(a)] Terms used in this documentThe terms Local Education Agency (LEA), agency or system refer to school systems as designated by the state of Georgia to provide special education and related services to eligible children. The term parent refers to the same broad definition of parent as found in the Individuals with Disabilities Education Act (IDEA) including the biological or adoptive parent, a foster parent, a guardian authorized to make educational decisions for the child, a person acting in the place of a biological or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child lives or an individual who is legally responsible for the child’s welfare or a surrogate that has been appointed. As a parent of a child who has been referred for special education services or a child who is already receiving special education and related services, you and your child have certain rights which are protected by state and/or federal law. These rights are outlined in the next few pages. Please be sure to ask your school or school system for an explanation if there is anything in them that you do not understand, if you need them in a different language or if you want then explained to you.
IEP or hearing and, in no case, more than 45 days after request
CONFIDENTIALITY OF INFORMATIONThe information about your child being a child with a disability eligible under the IDEA, his or her special education and related services and other related information is confidential and is not released to others within the system unless they have a legitimate need to know nor is it released to other agencies or groups except under limited circumstances. Regarding when confidential information is released, you have the following rights: 1. Right to restrict third party access to your child's records by withholding consent to disclose records except in certain limited circumstances described in the Family Education Right to Privacy Act (34 C.F.R. § 99.31(a)).2. Right to be notified and receive copies before information in your child's file is destroyed.3. Right to be told to whom information has been disclosed.4. Right to review and receive copies of all information sent to another agency where your child seeks or is eligible to enroll.RECORDS:Education records means the type of records covered under the definition of ‘‘educational records’’ in the Family Educational Rights and Privacy Act of 1974 (34 C.F.R. Part 99), those regulations define “educational records” as follows: Rights related to records:1. Right to examine all records relating to your child without unnecessary delay after parents' request and before any meeting regarding an
Educational records mean those records that are:(1) Directly related to the student and (2) Maintained by an educational agency or institution or by a party acting for the agency or institution.The term does not include:(1) Records that are kept in the sole possession of the maker, are used only as a person memory aid and are not accessible or revealed to any other person except a temporary substitute for the maker of the record(2) Records of the law enforcement unit of an educational agency subject to the provisions of §99.8(3) Records relating to an individual who is employed by an educational agency or institution that are made and maintained in the normal course of business; related exclusively to the individual in that individual’s capacity as an employee; and are not available for use for any other purpose.(4) Records on a student who is 18 years of age or older or is attending an institution of postsecondary education that are made or maintained by a physician, psychiatrist, psychologist or other recognized professional or paraprofessional acting in his or her professional capacity; made, maintained or used only in connection with treatment of the student and disclosed only to individuals providing the treatment, and treatment does not include remedial educational activities or activities that are program of instruction.(5) Records created or received by an educational agency or institution after an individual is no longer a student in attendance and that are not directly related to the individual’s attendance as a student.(6) Grades on peer-graded papers before they are collected and recorded by a teacher.
2. Right to have your representative review the records.3. Right to request that the agency provide copies of the records if failure to provide those copies would effectively prevent the parent from exercising the right to inspect and review the records.4. Right to have the agency presume that a parent has authority to inspect and review records of his or her child unless agency has been notified that parent does not have authority under state law.5. Right to inspect and review only the information relating to their child if any educational record includes information on more than one child.6. Right to have the public agency keep a record of parties obtaining access to identifiable student information included in educational records collected, maintained, or used under this part (except access by parents and authorized employees of the participating agency), including the name of the party, the date access was given, and the purpose for which the party is authorized to use the records.7. Right to have the public agency search for or retrieve educational records without charge.8. A parent may be charged a fee for copies of records which are made for parents if the fee does not effectively prevent the parents from exercising their right to inspect and review those records.9. Right to be informed of all types and locations of records being collected, maintained or used by the agency.10. Right to ask for an explanation of any item in the records.11. Right to ask for an amendment of any record if the record is inaccurate, misleading or violates the privacy or other rights of the child.12. Right to have the agency decide whether to amend the information within a reasonable time after being asked to do so.13. Right to be informed of refusal to amend and right to a hearing if the agency refuses to make the requested amendment. 14. Right to be informed if the agency decides in a hearing that the information is inaccurate, misleading or violative of the child's rights and the right to have the record amended.15. Right to be informed of the parents’ right to place a statement in the record commenting on information or setting forth the parents' reasons for disagreeing with the agency decision if it is decided in a hearing that information need not be amended.16. Right to have the parents' explanation maintained in the record as long as the contested record is maintained.17. Right to have the parents' explanation disclosed if the contested record is disclosed. INDEPENDENT EDUCATIONAL EVALUATION:Independent educational evaluation means an evaluation conducted by a qualified examiner who is not employed by the school district responsible for the education of your child. Public expense means that the school system either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to you, consistent with the provisions of the IDEA, which allow each State to use whatever State, local, Federal and private sources of support are available in the State to meet the requirements. [34 C.F.R. § 300.503(a)(3)(i - ii)] You are entitled to only one independent educational evaluation of your child at public expense each time your school system conducts an evaluation of your child with which you disagree. If you request an independent educational evaluation of your child at public expense, your school system must, without unnecessary delay, either: (a) File a due process complaint to request a hearing to show that its evaluation of your child is appropriate; or (b) Provide an independent educational evaluation at public expense, unless the school system demonstrates in a hearing that the evaluation of your child that you obtained did not meet the school system’s criteria.1. If your school system requests a hearing and the final decision of the administrative law judge is that your school system’s evaluation of your child is appropriate, you still have the right to an independent educational evaluation, but not at public expense.2. If you request an independent educational evaluation of your child, the school system may ask why you object to the evaluation of your child obtained by your school system. However, your school system may not require an explanation and may not unreasonably delay either providing the independent educational evaluation of your child at public expense or filing a due process complaint to request a due process hearing to defend the school system’s evaluation of your child. As a parent, you have the1. Right to obtain an independent educational evaluation by a qualified examiner.2. Right to have the independent evaluation obtained at either public or private expense considered in meetings where placement or program decisions are made or in a hearing regarding a free appropriate public education.3. Right to be told by your local school system where an independent evaluation may be obtained at no expense or low expense.4. Right to an independent evaluation at public expense under the same criteria as those used by the public agency under which the evaluation is obtained, including the location of the evaluation if you disagree with the agency's evaluation, except that the public agency has the right to initiate a hearing regarding a free appropriate public education to show that its evaluation is appropriate.5. Right to an independent evaluation at public expense when the evaluation is requested by an ALJ/hearing officer during a hearing. NOTICE:Notice means written information provided to the parent about proposed evaluations, meetings, and /or changes in program or eligibility or any other information related to the identification, evaluation and services provided to a child with a disability under the IDEA. Written notice is provided to give you information and the opportunity to respond prior to the changes being made. 1. Right to be notified and present at all meetings before the agency initiates or changes (or refuses to initiate or change) the identification, evaluation, placement or provision of a free appropriate public education for your child.2. Right to have that notice in writing, in your native language, or other principal mode of communication, at a level understandable to the general public. Right of a parent, whose native language or other mode of communication is not a written language, to have the notice translated orally or by other means in his or her native language or other mode of communication; the right to understand the content of the notice; and the right to written evidence that these requirements have been met.3. Right to have the notice describe the proposed action, explain why it is proposed, describe the options considered by the agency and explain why those other options were rejected.4. Right to be notified of each evaluation procedure, test, assessment, record or report the agency has used as a basis for any agency-proposed action or basis for refusal.5. Right to a description of any other factors which are relevant to the agency's proposed action or basis for refusal.6. Right to a notice that includes a full explanation of all the procedural safeguards available to the parents.7. Right to be notified of sources to contact to obtain assistance in understanding provisions of the IDEA.8. Right to prior written notice that contains all information in items 2 through 7 above before the agency initiates or changes or refuses to initiate or change the identification, evaluation, placement or provision of a free and appropriate public education.9. Right to be present at all IEP meetings. This includes the right to have the meeting at mutually agreeable time and location, to be notified of whom will be in attendance and to bring anyone with you that has knowledge or expertise about your child with a disability.10. If, available in your school system, you may choose to receive all notices by email. These include prior written notice, the procedural safeguards (parents rights ) notice, and notices related to due process complaints. CONSENT:Consent means:a) You have been fully informed in your native language or other mode of communication (such as sign language, Braille, or oral communication) of all information about the action for which you are giving consent.b) You understand and agree in writing to that described action, and the consent describes that action and lists the records (if any) that will be released and to whom; andc) You understand that the consent is voluntary on your part and you may withdraw your consent at anytime. Your withdrawal of consent does not negate (undo) an action that has occurred after you gave your consent and before you withdrew it. 1. Right to give consent before an initial evaluation of your child to determine whether your child is eligible under the IDEA to receive special education and related services. You must also receive prior written notice of the proposed action.a. If you refuse to provide consent or fail to respond to a request for consent, the public agency may, but is not required to, pursue the evaluation by using the mediation or due process procedures to obtain that evaluation.b. Consent to an initial evaluation is NOT consent to provide services under the IDEA.c. The public agency does not violate its child find obligations if it does not pursue the evaluation if you do not provide consent. .2. Right to give consent before a reevaluation is conducted. This is true unless your school system can demonstrate that (i) it took reasonable steps to obtain your consent for your child's reevaluation; and (ii) you did not respond. a. If you refuse to consent to your child's reevaluation, the school system may, but is not required to, pursue your child's reevaluation by using the mediation, and impartial due process hearing procedures to seek to override your refusal to consent to your child's reevaluation. b. As with initial evaluations, your school system does not violate its obligations under the IDEA if it declines to pursue the reevaluation in this manner. 3. If the parent of a child in home school or placed in private school at parental expense does not provide consent for the evaluation or reevaluation, or the parent fails to respond to the request to provide consent, the public agency may NOT use the procedures of mediation or due process hearing to obtain consent.a. The public agency is not required to consider the child eligible for services.4. Right to give consent before initial placement can be made in special education. The public agency must make reasonable efforts to obtain informed consent from the parent for the initial provision of special education and related services.a. If the parent fails to respond or refuses to provide consent for the initial provision of special education and related services, the public agency may NOT use the mediation or due process hearing procedures to obtain that consent.b. The public agency will not be in violation of its child find responsibilities nor its obligation to make a free and appropriate public education available (FAPE) if you do not consent.c. The public agency is not required to convene an IEP team meeting or to develop an IEP for a child for which consent for special education and related services has not been provided.5. Right to revoke consent at any time. If at any time subsequent to the consent for initial provision of services, the parent of a child revokes consent in writing for the continued provision of special education and related services, the public agency:a. May not continue to provide the special education and related services to the child butb. Must, prior to ceasing the provision of services, provide prior written noticec. May not use mediation or due process hearing procedures to obtain consentd. Will not be in violation of the provision of FAPE if you withdraw consent.e. Is not required to convene an IEP team meeting or develop an IEP for further provision of service. 6. Consent is not required prior to reviewing existing data as part of an evaluation or reevaluation or prior to administering a test that is administered to all children unless consent is required for all children. DISPUTE RESOLUTIONThe regulations for the IDEA set forth separate procedures for State complaints and for due process complaints and hearings. As explained below, any individual or organization may file a State complaint alleging a violation of any IDEA requirement by a school system, the State Educational Agency, or any other public agency. Only a parent or a school system may file a due process complaint on any matter relating to a proposal or a refusal to initiate or change the identification, evaluation or educational placement of a child with a disability, or the provision of a free appropriate public education (FAPE) to the child. While staff of the State Educational Agency generally must resolve a State complaint within a 60-calendar-day timeline, unless the timeline is properly extended, an impartial due process hearing officer must hear a due process complaint (if not resolved through a resolution meeting or through mediation) and issue a written decision within 45-calendar-days after the end of the resolution period, as described in this document under the heading Resolution Process, unless the hearing officer grants a specific extension of the timeline at your request or the school system's request. The State complaint and due process complaint, resolution and hearing procedures are described more fully below. 1. Right to present complaints, both formal written complaints or due process complaints, with respect to any matter relating to the identification, evaluation, or educational placement of your child, or the provision of a free appropriate public education to your child. Detailed explanation and description of all dispute resolution is contained in State board Rule 160-4-7-.12 Dispute Resolution. (a) Formal Written Complaint: the complaint must be a signed, written complaint that sets forth an alleged violation of the IDEA. The complaint shall include a statement that the local system has violated the requirements of IDEA and the facts on which the statement is based. The complaint must allege a violation that occurred not more than one (1) year prior to the date the complaint is received.1. Right to mediation, if both parties agree, whenever a formal written complaint is filed.2. Written complaints are investigated by the Georgia Department of education or its contractors. Both the complainant and the public agency involved have the opportunity to provide information to the Georgia Department of Education during the investigation.3. Decisions of written complaints are issued by the Georgia Department of Education within 60 calendar days unless extended for extenuating circumstances.4. The decision of a written complaint cannot be appealed. (b) Due Process Complaint: the complaint must set forth an alleged violation that occurred not more than two (2) years before the date the parent knew or should have known about the alleged action that forms the basis for the complaint. A due process complaint is a request for a hearing to occur to resolve the matter. The two year time limitation does not apply if you could not file a due process complaint within the timeline because (1) The school system specifically misrepresented that it had resolved the issues identified in the complaint; or (2) The school system withheld information from you that it was required to provide you under Part B of the IDEA. 2. Right to present a formal written complaint or a due process complaint if you disagree with a determination by the school system that your child’s behavior was not a manifestation your child’s disability.3. Right to mediation and/or an impartial due process hearing whenever you file a due process complaint and to an expedited due process hearing whenever you file a due process complaint regarding the manifestation of a disability.4. Responsibility to file due process complaint notice. A parent or school alleging a due process violation under IDEA, or his or her attorney, is required to provide a due process complaint notice to the other party (or their attorney) and the Georgia Department of Education. The notice must include the name and home address of the child; the name of the school the child attends; in the case of a homeless child or youth, the child’s contact information and the name of the child’s school; a description of the nature of the problem, and a proposed resolution. The party presenting the due process complaint must file this notice before a due process hearing can occur.a. Responsibility to provide sufficient notice of the nature of the problem for which you are filing a due process complaint. If the school system feels that the parent’s due process complaint notice is insufficient, the system must notify the hearing officer in writing within 15 days of receiving the complaint. b. Administrative Law Judges (ALJs)/Hearing Officers then have up to 5 days to determine if the notice meets the requirements of IDEA. Upon making a determination, the ALJ must immediately notify all parties in writing of the decision. c. If the ALJ determines that the complaint is sufficient, the school must respond to the due process complaint. If the ALJ determines that the complaint is not sufficient, the parent has the opportunity to resubmit a new complaint and the timelines start over. 5. Right to prior written notice regarding the subject matter of the due process complaint. When the school receives a due process complaint notice, it must first determine whether it provided prior written notice regarding the subject matter of the due process complaint. If it has not done so, the school must provide a response to the parents within 10 days of receiving the due process complaint notice. Prior written notice must contain the following: (1) an explanation of why the agency proposed or refused to take the action raised in the due process complaint, (2) a description of other options that the IEP team considered and the reasons those options were rejected; (3) a description of each evaluation procedure, assessment, record or report the agency used as the basis for the proposed or refused action; and (4) a description of the relevant factors in the school’s proposal or refusal.6. Right to a resolution session that provides an opportunity for parents and school systems to resolve any issues in the due process complaint so that the parents and systems can avoid a due process hearing and provide immediate benefit to the child. Within 15 days of when a complaint is filed, the system must convene a Resolution Session between the parents and relevant members of the IEP Team. The session must include a representative of the system who has decision-making authority on behalf of the system. The sessionmay not include an attorney for the system unless the parent is also accompanied by an attorney. The session provides an opportunity for the party who filed the due process complaint to discuss that complaint and the facts forming the basis of it, and an opportunity for the responding party to resolve the complaint. If the parties reach an agreement, they must execute a legally binding agreement that is signed by the parents and the system representative. The agreement is enforceable in any state court of competent jurisdiction or in a United States system court. Either party may void the agreement up to 3 days after its execution. If the due process complaint is not resolved through this session, then the parties may proceed to a due process hearing. 7. The Resolution Session must occur before a due process hearing may proceed unless both parties agree to use the mediation process or they both agree in writing to waive the resolution session and mediation. 8. Right to be told by the local system of any free or low-cost legal and other relevant services available (e.g., an expert on disability conditions that may be a witness at the hearing) when parent requests information or parent or agency initiates a due process complaint.9. Right to a hearing conducted by the Georgia Department of Education or a contracted impartial agent of the Georgia Department of Education. The hearing shall be 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.10. Right to have the hearing chaired by an administrative law judge (ALJ)/hearing officer who is not employed by a public agency involved in the education of your child or otherwise personally or professionally interested in the hearing (the ALJ/hearing officer is not an employee of the agency solely because he or she is paid by the agency to serve as an ALJ/hearing officer).11. Right to a list of the persons who serve as ALJs/hearing officers, including a statement of the qualifications of each of those persons.12. Right of either party to be accompanied and advised by legal counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities at a hearing. 13. Right to have your child present.14. Right to have the hearing open to the public.15. Right of parents or parties to present evidence and confront, cross-examine and compel the attendance of witnesses at a hearing.16. Right to have a hearing or an appeal set at a time and place reasonably convenient to you and your child.17. At least five (5) business days prior to a hearing conducted pursuant to paragraph (1), each party shall disclose to all other parties all evaluations completed by that date and recommendations based on the offering party’s evaluations that the party intends to use at the hearing. An ALJ/hearing officer may bar any party that fails to comply with this provision from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party. 18. Right of parents or parties to ask an ALJ/hearing officer to prohibit the introduction of any evidence at the hearing that has not been disclosed at least five days before the hearing.19. Right of parents or parties to have a written or, at the option of the parent, electronic verbatim record of the hearing.20. Right of parents or parties to obtain written or, at the option of the parents, electronic findings of fact and decisions within 45 days after the local education agency received the initial request for the hearing, except that the ALJ/hearing officer may grant a specific extension of time at the request of either party.21. Right of parents or parties to the implementation of a final decision made by the ALJ/hearing officer, unless a party brings a civil action. If a party chooses to bring a civil action, your child will remain in his or her present educational placement until the completion of all appeals unless both parties agree otherwise. Any corrective or compensatory actions required in the decision will not occur until completion of all appeals.22. Right of aggrieved parents or parties to appeal the decision of the ALJ/hearing officer by bringing a civil action in state or federal court within 90 days from the date of the decision of the ALJ/hearing officer.23. Right to have your child remain in his or her present educational placement until completion of all hearing and appeal proceedings, unless you and the agency agree otherwise. This right does NOT apply to appeals regarding placement under discipline procedures, manifestation determinations, or when a school system believes that maintaining the current placement of the child is substantially likely to result in injury to the child or others. During those appeals, the child must remain in the interim alternative educational setting pending the decision of the ALJ/hearing officer or until the expiration of the time period specified in the disciplinary code or federal law, whichever occurs first, unless the parent and the State or school system agree otherwise.24. Right to have child placed in the public school program until the completion of all the proceedings if the due process complaint involves an application for initial admission to the public school.25. U.S. District Courts can award reasonable attorneys’ fees to prevailing parties, whether that is a parent, State educational agency or local system as part of any settlement of a due process complaint or civil action. Attorneys’ fees awarded to SEAs or local systems may only be granted under certain guidelines. a. The parents or their attorney may be forced to pay the agency’s attorneys’ fees when that attorney files a complaint or civil action that is frivolous, unreasonable, or without foundation, or if the litigation clearly became frivolous, unreasonable, or without foundation. b. The parents or their attorney may be forced to pay the SEAs or local system attorneys’ fees if the parents’ complaint or subsequent civil action was presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation. c. Not all legal and administrative proceedings and services are eligible for reimbursement. A court may not award attorneys’ fees for any services performed subsequent to the time of a written offer of settlement that is made to the parents if: 1) the offer is made in accordance with Rule 68 of the Federal Rules of Civil Procedure; 2) in the case of an administrative hearing, if the offer is made more than 10 days prior to the hearing; 3) the offer is not accepted within 10 days; and 4) the court or administrative hearing officer find that the relief finally obtained by the parents is not more favorable than the offer of settlement. However, attorneys’ fees may be awarded to parents who were substantially justified in rejecting the settlement offer. 5) In addition, IEP Team meetings are not eligible for reimbursement unless the meeting is convened as a result of an administrative proceeding or judicial action, or, at the discretion of the state, for a mediation session. 6) Attorneys’ fees for Resolution Sessions are also ineligible for reimbursement. 26. Mediation may be requested by the school system or the family or any party for any disagreement related to the IDEA.
- Mediation shall be at no cost to either party, except that either party shall be responsible for the cost of an attorney or other representative or advisor.
- Mediation is voluntary.
- Mediation shall not be used to deny or delay a right to a hearing
- Mediation shall be scheduled in a timely manner and held in a location convenient to the parties in the dispute.
- Mediations shall be conducted by a qualified trained mediator who is impartial and randomly selected by the state.
- Discussions during mediation are confidential and may not be used as evidence in any subsequent due process hearing.
- If the dispute is resolved in mediation, the parties must enter into a legally binding agreement that sets forth the resolution, is signed by the parties.
- Any party may also file a written formal complaint alleging that a resolution agreement, a mediation agreement or a due process decision has not been carried out by the parties. The Georgia Department of Education will conduct an investigation under the formal written complaint procedures and issue a written decision.
- When a child is a ward of the State, the surrogate may alternatively be appointed by the judge overseeing the child’s care provided that the surrogate meets the requirements of the IDEA.
- When a child is an unaccompanied youth as defined in the McKinney-Vento Homeless Assistance Act (42 U.S.C. § 1143a(6)), the local system shall appoint a surrogate in accordance with these requirements.
- The school system shall make reasonable efforts to ensure the assignment of a surrogate not more than 30 days after there is a determination by the system that the child needs a surrogate.
- The surrogate parent may represent the child in all matters relating to the identification, evaluation, and educational placement of the child, and the provision of a free appropriate public education to the child.