§ 17:1946 — Procedural safeguards

§1946. Procedural safeguards
A. The state Department of Education, the Special School District, and the local
education agencies shall establish and maintain regulations and procedures in accordance
with this Section and the Individuals with Disabilities Education Improvement Act of 2004
to ensure that students with exceptionalities and their parents are provided procedural
safeguards with respect to the provision of free appropriate public education by such
agencies.
B.(1) The right of a parent or public agency to initiate a request for a special
education due process hearing shall prescribe within two years of the date that the parent or
public agency knew or should have known about the alleged action that forms the basis of
the request.
(2) The two-year timeline does not apply to a parent if the parent was prevented from
filing the due process hearing request due to either specific misrepresentations by the local
education agency that it had resolved the problem forming the basis of the due process
hearing request or the local education agency's withholding of information from the parent
that was required to be provided by this Chapter and the Individuals with Disabilities
Education Improvement Act of 2004.
C.(1) No person, who is an employee of a public school system, or his employer,
who in good faith renders school health services and medical services to students with
exceptionalities which are required by state or federal law, shall be liable for any civil
damages as a result of any act or omission in rendering the care or services required.
(2) No individual appointed according to state or federal law to serve as a surrogate
parent who in good faith performs the functions of such appointment which functions are
required by state or federal law shall be liable for any civil damages as a result of any act or
omission in rendering services in accordance with the functions of said appointment.
(3) The provisions of this Section shall not exempt from liability those individuals
who intentionally or by grossly negligent acts or omissions cause damages to a student with
an exceptionality or other individual participating in a special education program for
individuals with exceptionalities.
D.(1) Except as provided in this Section, all oral and written communications and
records made during the state mediation, whether or not conducted under this Chapter and
whether before or after the institution of formal judicial proceedings, are not subject to
disclosure and may not be used as evidence in any judicial or administrative proceeding.
(2) The state neutral individualized education program facilitator in an individualized
education program meeting and the state mediator in a mediation shall not be required to
testify concerning the mediation or individualized education program proceedings and are
not subject to process or subpoena, issued in any judicial or administrative procedure, which
requires the disclosure of any communications or records of the mediation, except with
respect to the following:
(a) Reports made by the mediator to the state, only as to whether the parties
appeared, whether the mediation took place, and whether a settlement resulted therein.
(b) A judicial determination of the meaning or enforceability of an agreement
resulting from a mediation procedure if the court determines that testimony concerning what
occurred in the mediation proceeding is necessary to prevent fraud or manifest injustice.
(3) The confidentiality provisions of this Section do not extend to statements,
materials, and other tangible evidence, or communications that are otherwise subject to
discovery or are otherwise admissible, merely because they were presented in the course of
mediation, if they are based on proof independent of any communication or record made in
mediation.
(4) If this Section conflicts with other legal requirements for disclosure of
communications or materials, the issue of confidentiality may be presented to the court
having jurisdiction of the proceedings to determine, in camera, whether the facts,
circumstances, and context of the communications or materials sought to be disclosed
warrant a protective order or whether the communications or materials are subject to
disclosure.
(5) Confidentiality, in whole or in part, may be waived when all parties and the
mediator specifically agree in writing.
E.(1) The State Board of Elementary and Secondary Education may adopt rules for
the implementation of an early resolution process for the purpose of establishing a
nonadversarial means for individuals to resolve disputes with local education agencies
concerning the requirements of this Part and the policies adopted by the state board for its
implementation.
(2) A written agreement developed pursuant to the early resolution process is
enforceable in any court of competent jurisdiction.

Legislative History

Acts 1977, No. 754, §1; Acts 1979, No. 728, §1, eff. July 20, 1979; Acts 1992, No. 433, §1, eff. June 20, 1992; Acts 1992, No. 458, §1, eff. June 20, 1992; Acts 1992, No. 911, §1; Acts 1998, 1st Ex. Sess., No. 109, §1, eff. May 5, 1998; Acts 1999, No. 188, §1; Acts 2008, No. 376, §1; Acts 2021, No. 468, §1, eff. July 1, 2021; Acts 2022, No. 374, §1; Acts 2024, No. 198, §1.