RESOLVING DISAGREEMENTS
If you disagree with the program in whole or in part, you should
not sign the IEP. As with the identification and evaluation
processes, you again have the right to challenge school officials
during the development of the IEP. You may feel that the program,
as devised, will not meet your child's individual abilities or
needs. You may feel that needed services are being denied,
delayed, or provided in unnecessarily segregated settings. Your
own interests in your child's education may not have been given
sufficient consideration. In any case, there are several steps
that you might take to resolve disagreements.
If you are uncomfortable about having your child return to school
until your dispute can be resolved, you have some options. They
include but are not limited to the following:
Home School - You may choose to educate your child at home. The
requirements for doing this vary by county but include that the
person providing the instruction must have a high school diploma
or a GED. Your County Board of Education office will provide you
with the necessary forms which must be completed. There are many
curriculums and materials available as more and more families
choose this option.
Private School - You may also choose to enroll your child in
private school. The school system’s responsibilities to
these parentally placed children, however, have changed
considerably under the new law.
- If the local school district developed an IEP for the child and
thereby offered to him/her a free appropriate public education in
a timely manner, the school district is usually not responsible
to pay for the cost of education, including special education and
related services for that child.
- In order for parents to be reimbursed for the costs of the
private education, an administrative law judge must find that the
local school district did not make available to the child a FAPE
in a timely manner prior to the child’s enrollment.
In order to receive full reimbursement through a due process
hearing:
1. The parent must indicate their rejection of the IEP at the
meeting.
2. They must state their concerns.
3. They must state their intent to enroll their child in a
private school at public expense.
OR
4. Ten business days prior to the child’s withdrawal, the
parents must give written notice to the local school district of
their intentions.
5. The parent must make their child available for appropriate and
reasonable evaluation by the local school district.
6. The parents must act in a reasonable fashion.
The costs of reimbursement may not be reduced or denied for
failure to provide such notice if:
- the parent cannot write in English;
- compliance is likely to result in physical or serious emotional
harm to the child;
- the school prevented the parents from providing notice;
- the parents were unaware of the notice requirement.
Negotiation
Negotiation, while not a separate step, is a process where people
resolve their differences through discussion, presentation of
additional information, and usually, compromising their position.
Negotiation should begin whenever a disagreement is evident. To
negotiate successfully, it is important to know exactly what you
are willing and not willing to give up. It is important that this
be kept in reserve and used only when necessary to achieve a
compromise with which both you and the school are satisfied. If
you feel that you lack sufficient information to further your
position, you may ask that the IEP meeting be postponed and
reconvened when you have additional information, evaluations or
persons to assist you in presenting your points more
successfully. Negotiation is likely to be the most effective
means of resolving your disagreements and least likely to create
resistance on the part of teachers or other school officials.
Mediation
Mediation is one step in the due process procedure as established
by federal and state laws and regulations. When there are
disputed issues between parents and a school system, the system
must afford the parents the opportunity to mediate or resolve
their differences. Mediation differs from negotiation in that
another person, a mediator, assists the two or more people
involved in the dispute to reach a solution that is satisfactory
to all sides. There are some things to keep in mind if you choose
to participate in the mediation process as a means of resolving
your disagreements. There is an organization in Georgia which
provides well-trained
and impartial mediators who will travel to all parts of Georgia
at no cost to the parent. This organization is:
Justice Center of Atlanta
976 Edgewood Avenue N.E.
Atlanta, Georgia 30307
(404) 523-8236
It is recommended that you request a mediator from this agency as
the alternative is allowing the superintendent to select someone.
In order to schedule a mediation, a parent does not even have to
notify the school, although they certainly may want to do so. You
need only contact the Justice Center by telephone and tell them
that you want to mediate a situation with your school system. The
entire process can be done over the telephone and the Justice
Center will take care of the rest of the details. A mediator
should always be an impartial person with no involvement or
personal relationship with either side. Mediators do not make
decisions and then order the parties to comply with it. Their
primary function is to get the two sides to agree on at least
some of the issues, preferably all. When you have participated in
a mediation, be sure that any agreement is written down and that
both sides get a signed copy. The unresolved points of
disagreement should also be reduced to writing.
Mediation generally takes place after a due process hearing has
been requested but does not interfere with the 20-day period
within which the hearing must be scheduled. After you have
requested a due process hearing, you may still ask for mediation.
Mediation can also be requested at any time that you and the
school officials reach an impasse when it comes to your child's
education. You do not have to have already requested a due
process hearing before requesting this method of dispute
resolution.
How to Prepare for Mediation
Since your goal is reaching agreement with the other side, it is
recommended that parents take some time prior to their scheduled
mediation to prepare. Some of the following steps may prove
helpful.
A. Identify the issues with which you are dissatisfied.
B. Study the laws or regulations, and/or consult with someone who
is knowledgeable to see if your issues can be supported legally.
C. Gather all of your supportive evidence as exemplified by
evaluation reports, videotapes, etc. Parents have a right to
examine all records related to their child before any meeting,
mediation or hearing within 45 days of request.
D. Decide what you will use to negotiate, versus your bottom
line.
Due Process Hearings
Due process hearing procedures were written into the law to
provide an opportunity for parents and/or school personnel to
present their position or complaints and receive a fair and
impartial hearing before someone with specific knowledge and
training.
In 1994, the Georgia General Assembly created a new state agency
called the Office of State Administrative Hearings (OSAH) and
gave them the responsibility for conducting among others, the
special education due process hearings. OSAH is administered by a
Chief Administrative Law Judge and employs 33 full-time
Administrative Law Judges (ALJs). OSAH conducts its hearings
pursuant to the Georgia Administrative Procedure Act and
OSAH’s Rules for Administrative Hearings.
The way to initiate a hearing has changed dramatically as a
result of the creation of OSAH. If a parent feels that they have
no alternative but to take their school system to a hearing, they
must notify their special education director in writing,
(preferably, certified) of their desire for a hearing. The
director then contacts the Georgia Department of Education who in
turn refers the situation to OSAH.
Hearing requests can no longer be made directly by individuals
but must come instead through the pertinent state agency. The
request or complaint must include the following information:
a. name of the child;
b. address of the child’s residence;
c. name of the school which the child is attending;
d. a description of the issues in contention including facts
relating to such problem;
e. a proposed resolution of the problem to the extent known or
available to parents at the time.
The Georgia Department of Education has developed a model form
(see Appendix pages 15 - 17) which they have provided to assist
local school districts in developing their own forms for
requesting a due process hearing. These forms are available for
parents from their Special Education Director or Board of
Education Office.
After receiving a request from a referring agency to conduct a
hearing, OSAH sends out a notice of hearing to all parties. This
usually happens within a few days or weeks of the request. The
notice must include the following information:
1. The time, place and nature of the hearing;
2. The legal authority for conducting the hearing;
3. The specific laws and rules involved;
4. A short and plain statement of the matters asserted by the
parties;
5. A statement of the parties’ rights to be represented by
legal counsel and to subpoena witnesses and documentary evidence;
and
6. A statement of the potential consequences of default.
At the end of the hearing, the ALJ may rule orally or enter a
written decision containing his/her findings of facts and
conclusions. Typically, a written decision must be entered within
45 days from the date upon which the hearing was requested, but
extensions can occur under certain circumstances.
It is also recommended that parents seek legal
advice/representation before requesting a hearing and certainly
before entering the court system.
Preparing for a Due Process Hearing
It is very important to be thoroughly prepared when you attend a
hearing. Your evidence should be organized to convince the
Administrative Law Judge of your point of view. It is not
effective to criticize the school's existing programs without
having a clear idea of what your child needs. The following list
may be helpful in your preparation:
1. Clarify the reasons why you feel that your child is not
receiving a free, appropriate, public education.
2. Organize and review records of all written and telephone
contacts with school officials.
3. Request from the school a copy of all your child's school
records. You may be asked to pay the copying costs so it is best
to review all records first and choose the ones you want copied.
Some of the records may be in locations other than the local
school.
4. Contact all persons or agencies that have provided services to
your child and request copies of their records.
5. Contact persons who can provide supportive evidence. While it
is best if they agree to assist you, it is possible for them to
be subpoenaed to attend by the hearing officer. Prepare a written
list of your witnesses and indicate whether they will need to be
compelled to attend.
6. If the disagreement involves placement in a program you feel
is inappropriate, make sure that you visit the program. If you
have not seen the program and talked with other parents and
teachers associated with the program, you may be seen as
unreasonable in your rejection of the placement.
7. Write a letter requesting a due process hearing.
8. After you have been contacted by the Administrative Law Judge,
you must prepare your written materials and submit them to the
him/her and the school system's attorney five days before the
scheduled hearing. You should include:
- Records from physicians or medical agencies.
- School records.
- Any independent evaluations or statements by professionals.
- A record of your contacts with the school.
- A record of your observations of your child's skills or needs.
- A list of witnesses that you would like to have present at the
hearing which may include school officials, teachers, and
evaluators. If any of your witnesses need to be subpoenaed, this
is the time to notify the Administrative Law Judge.
- A statement of whether or not you would like the hearing to be
open to the public. (If it is open, you may invite a reporter to
attend.)
9. The school must provide information on low cost legal or other
services for assistance with the hearing upon request.
10. You may choose to have the child attend the hearing.
11. You have the right to mediation prior to the hearing. This is
to be done within the established 20-day timeline for the
hearing.
12. A decision is supposed to be reached within 45 days after the
request is received.
13. In the beginning of the hearing, request that a copy of the
transcript be sent to you as soon as it becomes available. You
may also now choose the format in which you receive the hearing
record and decision (i.e. written or electronic).
14. You may bring anyone you want to the hearing, including
lawyers, advocates, professionals, family members, etc.
The Administrative Law Judge has the authority to order the
school to provide whatever services or programs are needed. The
school may be ordered to develop new programs or pay for private
services. The decision of the Administrative Law Judge is final
unless you appeal the results to either your county superior
court or your district federal court within 30 days. Either side
may appeal the decision.
Administrative Appeals
Independent of due process hearing procedures, the State
Department of Education offers an administrative complaint
procedure which is described as follows:
Allegations of substance, including the review of an appeal from
a decision of an LSS (local school system) with respect to a
complaint made by public agencies, private individuals or
organizations of actions taken by any public agency that are
contrary to the requirements of IDEA will be reviewed and
investigated. Appropriate action will be taken within 60 days by
the Georgia Department of Education, specifically through the
Office of Instructional Programs, the Director of the Division
for Exceptional Students. If the allegation can be appropriately
handled through the due process hearing procedure, the complaint
officer may recommend that the complainant initiate a request for
a hearing and notify the agency involved in the recommendation.
Complaints from any public agency, private individual or
organization, in regard to the provision of a free, appropriate
public education for a disabled student or group of disabled
students, should be signed by the complainant and addressed in
writing to:
Director, Division For Exceptional Students
Office of Instructional Programs
Georgia Department of Education
1866 Twin Towers East
Atlanta, Georgia 30334-5040
At any point in your interactions with your local school system,
you may send a letter of complaint to the State Department of
Education, certified mail. They then have 10 days to respond to
your inquiry. They will make an inquiry to your local
superintendent and may make an on-site visit or send in an
investigation team to gather further information. The complaint
official may suggest several possible methods for change in order
to bring about a satisfactory resolution to the conflict.
Filing a Federal Complaint
A complaint filed with a Federal office responsible for ensuring
the implementation of Section 504, IDEA, or the ADA will result
in an investigation to determine whether the State's educational
policies and practices are in compliance with the law. If a
state-wide or local educational system is out of compliance with
either law, political and legal pressure will be imposed until
problems are corrected. Under the provisions of Section 504, a
school district could lose all of its federal funds by failing or
refusing to comply with the law.
You may file a complaint with either or both of these offices.
The person who is currently responsible for special education
programs in Georgia is:
Claudette Brewster
United States Department of Education
330 "C" Street, S.W.
Sweitzer Building - Room 3623
Washington, D.C. 20202-2722
(202) 205-5507
Under the provisions of Section 504 and the ADA, you would file a
complaint with:
Mr. Gary Walker
Regional Civil Rights Director
United States Department of Education
Region IV
61 Forsyth Street
Room 19-T-70
Atlanta, Georgia 30303
A complaint with the Office of Civil Rights may be filed
independently of your due process hearing procedures and may be
done before, during, or after that step. You may use the
following form to file a complaint with the Office of Civil
Rights or merely use it as a guide.
send to: United States Department of Education
Office for Civil Rights
Region IV
61 Forsyth Street
Room 19-T-70
Atlanta, Georgia 30303
1. Name (Mr./Ms.)
(Last) (First) (Middle) on behalf of
(Last) (First) (Middle)
Street Address:
City and State:
Phone Number:
(Area Code)
2. In the event this office is unable to locate you to discuss
this complaint, please provide the following information
concerning a person who knows where to contact you:
Name (Mr./Ms.)
(Last) (First) (Middle)
Street Address:
City and State:
Phone Number:
(Area Code)
3. Were you discriminated against because of (please circle):
Race or Color National Origin Religion
Sex Handicap Age
Other (explain)
If you are handicapped please identify and describe your
handicap:
4. Who do you allege discriminated against you? Give the name of
the institution.
Name:
Street Address:
City and State:
Organizational Unit/Department:
Phone Number:
5. If your complaint involves employment discrimination, in the
space below give your job title and a description of your duties.
6. On what date did the alleged act of discrimination occur?
month day year
7. What is the most recent date of discrimination?
month day year
8. Please list the names (address and phone numbers, if
available) of any persons having knowledge of the discriminatory
treatment.
9. State in full what occurred to lead you to believe that you
were discriminated against. Please provide names, dates and other
forms of information which are available to you.
10. Were other persons similar to yourself (same race, sex,
handicap status) discriminated against as well?
If yes, please explain.
11. Have persons of the other sex, race, national origin, or
handicap been treated differently than you in this matter?
If yes, please explain.
12a. Have you filed this complaint with any other federal, state,
or local Civil Rights Agency?
yes no
If yes, name of Agency
Month Day Year
If not, do you intend to file with another agency?
yes no
Agency:
Street Address:
City and State:
12b. Have you tried to resolve your complaint through the
internal grievance procedure at your institution?
yes no
If the answer is yes, what is the status of your complaint?
Signature Date
(all complaints must be signed)
Once the OCR complaint has been filed, you will receive a letter
and forms to be filled out and signed giving consent for the
investigation to take place, and for your name to be used during
the course of the investigation. If you do not want your name
released, it is not necessary to sign that form. You may file the
complaint on behalf of an individual or a group.
Within 105 days from the time the complaint is received, the
Office of Civil Rights will determine whether the evidence proves
that a violation of Section 504 has occurred. If a violation has
occurred, they will try to obtain a remedy through negotiations
within an additional 90 days. If negotiation fails, OCR will
initiate formal enforcement action through administrative
proceedings or by other means authorized by law. Complaints filed
with OCR may prove to be an effective tool in advocating for the
appropriate education of handicapped children.
Lawsuits
The last recourse you have is filing a lawsuit against the
Georgia Board of Education. If the law is not being properly
implemented or has been violated by school officials, then you
are perfectly within your rights to take legal action. You should
understand that the process can be long, drawn out, expensive and
difficult, but possibly the only way to ensure compliance with
the law. Since the outcome of the suit may affect many children
across the state (or nation), you may want to seek the support
and assistance of other parents or organizations who advocate on
behalf of children's educational rights. You will need to contact
a lawyer, personally, through one of the many sources.
If you are in need of low cost legal assistance, you may locate
the Georgia Legal Services office which is closest to where you
live by calling (404) 656-6021. They will then be able to tell
you whether or not you qualify, or make further referrals, if
necessary. Your school system also has the responsibility to
provide you with a list of local free or low-cost attorneys who
can assist you, upon your request.