HB197INTRODUCED
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HB197
9Y4ABPP-1
By Representatives Faulkner, Lee, Whorton
RFD: Judiciary
First Read: 05-Feb-25
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5 9Y4ABPP-1 02/05/2025 GP (L)lg 2024-2384
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First Read: 05-Feb-25
SYNOPSIS:
Under existing law, the Individuals with
Disabilities Education Act (IDEA) provides for an
impartial due process hearing following an allegation
that a local board of education has violated the IDEA
as it relates to the education provided to a child with
a disability.
This bill would require a person with an
allegation to notify the State Department of Education
of the allegation before formally requesting an
impartial due process hearing and, following the
notification, would provide certain procedures to
attempt to resolve the resolution, including a response
from the local board of education and, in some cases,
an investigation by the department.
This bill would require the department to offer
voluntary mediation to resolve the allegation at no
cost to the person who filed the allegation or the
parent of the child who is the subject of the
allegation.
This bill would provide for the possible
initiation of an impartial due process hearing if
attempts to resolve the allegation through notification
and voluntary mediation are unsuccessful.
This bill would provide for the calculation of
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This bill would provide for the calculation of
attorney fees for an action or proceeding under the due
process hearing provisions of the IDEA.
This bill would also require the State Board of
Education to adopt rules.
A BILL
TO BE ENTITLED
AN ACT
Relating to public K-12 education; to add Article 3,
commencing with Section 16-39-50, to Chapter 39 of Title 16,
Code of Alabama 1975; to require parties to notify the State
Department of Education of potential violations of the
Individuals with Disabilities Education Act (IDEA) before
formally requesting an impartial due process hearing; to
provide for the notification process; to require the
department to offer mediation to resolve allegations of
violations of the IDEA as an alternative or precursor to an
impartial due process hearing; to provide for the calculation
of attorney fees; and to require the State Board of Education
to adopt rules.
BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
Section 1. Article 3, commencing with Section 16-39-50,
is added to Chapter 39 of Title 16, Code of Alabama 1975, to
read as follows:
Article 3
§16-39-50
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§16-39-50
For the purposes of this article, the following terms
have the following meanings:
(1) ALLEGATION. An allegation of a violation of the
IDEA relating to the identification, evaluation, educational
placement of a child with a disability, or the provision of a
free appropriate education to a child.
(2) DEPARTMENT. The State Department of Education.
(3) FREE APPROPRIATE PUBLIC EDUCATION or FAPE. Special
education and related services that:
a. Are provided at public expense, under public
supervision and direction, and without charge;
b. Meet the standards of the State Board of Education;
c. Include an appropriate preschool, elementary school,
or secondary school education in the state; and
d. Are provided in conformity with an individualized
education program and its requirements.
(4) IDEA. The Individuals with Disabilities Education
Act, 20 U.S.C. § 1400 et seq. and its implementing
regulations, 34 C.F.R. Part 300.
(5) IMPARTIAL DUE PROCESS HEARING or HEARING. A hearing
in accordance with the IDEA, 20 U.S.C. § 1415, to resolve a
complaint relating to the provision of free appropriate public
education to children with disabilities.
(6) INDIVIDUALIZED EDUCATION PROGRAM or IEP. A written
statement for each child with a disability that is developed,
reviewed, and revised in accordance with the IDEA, 20 U.S.C. §
1414.
(7) PARENT. A student's parent or legal guardian.
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(7) PARENT. A student's parent or legal guardian.
§16-39-51
(a) Before a person may request an impartial due
process hearing, he or she must file a signed, written
complaint regarding the allegation with the department. At the
time of filing, the complainant must also forward a copy of
the complaint to the relevant local board of education and
local superintendent of education. The complaint shall be
submitted on a form developed by the department and shall
include, at a minimum, the facts on which the allegation is
based and a proposed resolution for the issue.
(b) A complaint may not allege a violation that
occurred more than one year before the date the complaint is
filed.
(c) Following the receipt of a complaint, the
department shall:
(1) Send a written confirmation of receipt to the
complainant. The confirmation must also notify the complainant
that monetary awards are not available to resolve complaints
alleging a violation of the IDEA, as the only permissible
remedies under the IDEA are education services for the
student.
(2) Notify the relevant local board of education of the
complaint and provide the local board of education with the
opportunity to address and resolve the issue. No later than 10
days after the receipt of notification from the department,
the local board of education shall respond in writing to the
department, providing an explanation for the allegations and
describing any actions taken to resolve the issue.
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describing any actions taken to resolve the issue.
(d)(1) The department shall review the response of the
local board of education and, if the issue has been resolved,
proceed with the letter of notification provided in subsection
(e).
(2) If the issue has not been resolved, the department:
a. May carry out an independent investigation and an
on-site visit to gather further information to determine
whether there has been a violation of the IDEA; and
b. Shall inform the complainant and, if the complainant
is not the parent, the parent of the child who is the subject
of the complaint, of the opportunity to mediate pursuant to
Section 16-39-52.
(e)(1) After the local board of education's response
and, if necessary, further investigation and an on-site visit,
the department shall review all relevant information and make
an independent determination as to whether the local board of
education is violating a requirement of the IDEA.
(2) The department shall issue a written letter of
notification to the relevant local board of education and the
complainant that addresses each allegation in the complaint
and includes, at a minimum, findings of fact relating to the
allegation, a final decision, and the reasoning for the final
decision.
§16-39-52
(a) The department shall make mediation available at
the request of either party to resolve allegations. The
department shall bear the cost of the mediation process.
(b) The department shall adopt rules and each local
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(b) The department shall adopt rules and each local
board of education shall adopt policies to establish and
implement a mediation program that allows parties to resolve
allegations. The procedures shall ensure, at a minimum, that
the mediation process:
(1) Is voluntary on the part of the parties and the
parent of the child who is the subject of the allegation;
(2) Is not used to deny or delay a parent's right to an
impartial due process hearing or any other rights afforded
under the IDEA; and
(3) Is conducted by a qualified and impartial mediator
who is trained in effective mediation techniques.
(c) If any party chooses not to use the mediation
process, the applicable local board of education may offer an
opportunity to meet with an appropriate disinterested party.
The disinterested party shall explain the benefits of the
mediation process and encourage the parents to use mediation
to resolve the dispute. The opportunity shall be offered at a
time and location convenient to the parent.
(d) If the parties resolve an allegation through the
mediation process, they shall execute a legally binding
agreement that sets forth the resolution and:
(1) States that discussions that occur during the
mediation process are confidential;
(2) States that the signed mediation agreement is
enforceable; and
(3) Is signed by both the parent and a legal
representative of the relevant local board of education.
(e) Discussions that occur during the mediation process
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(e) Discussions that occur during the mediation process
are confidential and may not be used as evidence in any
subsequent due process hearing or civil proceeding.
(f) A written, signed mediation agreement is
enforceable in any state court of competent jurisdiction and
the district court of the United States.
§16-39-53
(a) Copies of all correspondence relating to the
complaint and mediation shall be provided to all parties
involved including, but not limited to, the department, the
relevant local board of education, and the complainant, except
as provided in subsection (b).
(b) If the parent of the child who is the subject of
the complaint is not the complainant, he or she shall also be
provided all correspondence, and the complainant may only
receive copies of information that contains personally
identifiable information about the child if the parent
consents to the release of such information.
§16-39-54
The complainant or the parent may proceed with an
impartial due process hearing request pursuant to the IDEA if:
(1) The allegation has not been resolved after the
complaint procedures in Section 16-39-51;
(2) The parties do not resolve the allegation through
the mediation procedures in Section 16-39-54, either because
the parties chose not to participate in mediation or because,
after agreeing to mediation, the parties could not come to an
agreement; or
(3) The parties agreed to a written, signed mediation
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(3) The parties agreed to a written, signed mediation
agreement, but after a reasonable amount of time, the local
board of education has not properly implemented the
requirements of the mediation agreement. If a complainant or a
parent requests a due process hearing under this subdivision,
the department shall determine whether a reasonable amount of
time has passed to warrant the filing of a due process hearing
request, based on the specific facts and circumstances of the
agreement.
§16-39-55
(a) In any action or proceeding brought under the due
process hearing provisions of the IDEA, the court may award
reasonable attorney fees as part of the costs to each of the
following:
(1) The prevailing party who is the parent of a child
with a disability.
(2) If the prevailing party is the department or a
local board of education, to the prevailing party:
a. 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
b. 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.
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needlessly increase the cost of litigation.
(b) Funds under Part B of the IDEA may not be used to
pay attorney fees or costs of a party related to any action or
proceeding under the due process hearing provisions of the
IDEA. This subsection 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.
(c) If a court awards reasonable attorney fees, the
fees 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 subsection.
(d) Attorney fees may not be awarded and related costs
may not be reimbursed in any action or proceeding under the
due process hearing provisions of the 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.
(e) An award of attorney 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.
(f)(1) Except as provided in subdivision (2), attorney
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(f)(1) Except as provided in subdivision (2), attorney
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.
(2) Subdivision (1) does not apply if the court finds
that the state or local board of education unreasonably
protracted the final resolution of the action or proceeding or
there was a violation of Section 615 of the IDEA.
(g) A meeting conducted pursuant to the resolution
process shall not be considered:
(1) A meeting convened as a result of an administrative
hearing or judicial action; or
(2) An administrative hearing or judicial action for
purposes of this section.
(h) The court may reduce the amount of the attorney
fees awarded, if the court finds that:
(1) During the course of the action or proceeding, the
parent or the parent's attorney unreasonably protracted the
final resolution of the controversy;
(2) The amount of attorney 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 the appropriate information to the local board of
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provide the appropriate information to the local board of
education in the due process hearing request notice.
§16-39-56
(a) This article shall apply beginning with the
2026-2027 school year.
(b) The State Board of Education shall adopt rules to
implement this act.
Section 2. This act shall become effective on October
1, 2025.
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