§1946. Procedural safeguards

A. The Department of Education 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 one year of the date the parent or public agency knew or should have known about the alleged action that forms the basis of the request.

(2) The one-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.

Acts 1977, No. 754, §1. Amended by 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.