and the fact that the Office of Special Education and Rehabilitative Services (OSERS) has determined, for the previous
three consecutive years, Georgia to be a state that “needs assistance” with meeting the requirements and purposes of
Part B of the Individuals with Disabilities Education Act (IDEA). Therefore, this is a request for a compliance review of theabove name School District to determine whether it has established and implemented, with respect to individuals regardedas having a disability as defined in the Americans with Disabilities Amendment Act, a system of procedural safeguardsthat includes an impartial due hearing process consistent with the legal requirements of Section 504 of the RehabilitationAct of 1973 (Section 504) and its implementing regulation at 34 C.F.R. § 104.36.OCR initiates compliance reviews and takes other proactive steps to focus on specific compliance problems that areparticularly acute or national in scope or that may not have been raised by complaints.
It has been OCR‟s experience t
targeted compliance reviews and proactive initiatives increase the impact of OCR‟s resources, complement the complaint
resolution process, and can benefit larger numbers of students than sole reliance on complaint resolutions, which mayinvolve only one student per case.OCR is responsible for enforcing Section 504, 29 U.S.C. § 794, and its implementing regulation, 34 C.F.R. Part 104, whichprohibit discrimination on the basis of disability by recipients of federal financial assistance from the Department. OCR isalso responsible for enforcing Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12131 et sq., and itsimplementing regulation, 28 C.F.R. Part 35, which prohibit discrimination on the basis of disability by public entities. As arecipient of Federal financial assistance from the Department and as a public entity, the District is subject to these laws.Accordingly, OCR has jurisdiction to investigate this complaint.The Section 504 implementing regulation at 34 C.F.R. § 104.36 provides that "a recipient that operates a public elementaryor secondary education program or activity shall establish and implement, with respect to actions regarding theidentification, evaluation, or educational placement of persons who, because of disability, need or are believed to needspecial instruction or related services, a system of procedural safeguards that includes notice, an opportunity for theparents or guardian of the person to examine relevant records, an impartial hearing with opportunity for participation bythe person's parents or guardians and representation by counsel, and a review procedure.
Although neither Title II nor itsimplementing regulation contain a specific provision regarding impartial due process hearings, the Title II implementingregulation, at 28 C.F.R. § 35.103, provides that it "shall not be construed to apply a lesser standard than the standardsapplied under Title V of the Rehabilitation Act of 1973 (29 U.S.C. 791) or the regulations issued by Federal agenciespursuant to that title." OCR, therefore, interprets Title II consistently with Section 504.With the above principles in mind, please specifically investigate if the District's Section 504 grievance and complaintprocedures make clear that a parent has the right to obtain a Section 504 due process hearing without first filing agrievance, submitting to mediation, or going to the Board of Education. Although it is acceptable for a school district tooffer mediation as an option to resolving disputes, it cannot be mandatory and, if a parent wishes to proceed directly to animpartial due process hearing, the District must honor that request. The procedures also must make clear that parentsmay file a grievance or complaint with OCR at any time without exhausting District procedures. Additionally, theprocedures must make clear that filing a complaint with OCR will not render moot the District's obligation to honor aSection 504 impartial due process hearing request. Furthermore, the procedures must provide clear notice regarding howa hearing officer's decision can be impartially reviewed, as required by 34 C.F.R. § 104.36.Please review whether the District has adopted Section 504 policies and procedural safeguards that:A. Clarify that the grievance procedure and the Section 504 due process hearing procedure are separate and distinct.B. Specify the rights and procedural steps for each.C. Clarify which issues are appropriate for grievance procedures processing.D. Clarify which issues are appropriate for Section 504 due process hearings.E. State that the parent/guardian has the right to obtain a Section 504 due process hearingi. without going through a grievance procedure;ii. without submitting to mediation, andiii. without going to the Board of Education.F. State that any mediation process in the Section 504 due process hearing process is voluntary and not mandatory.G. Include and define a process by which any party aggrieved by the findings and decision in the due process hearing mayappeal and receive an impartial review of that determination consistent with the requirements of 34 C.F.R. 104.36.H. State that if the relief sought under Section 504 and/or Title II is also available under the lndividuals with DisabilitiesEducation Act (IDEA), then the due process hearing request will be processed instead under IDEA due process proceduresbecause, where similar relief is sought, an IDEA due process hearing must be held before a U.S. District Court would havejurisdiction to hear the Section 504 Title II claim. (Note: 28 C.F.R. Part 35, §35.103
Relationship to other laws: (a) Rule ofInterpretation. Except as otherwise provided in this part, this part shall not be construed to apply a lesser standard thanthe standards applied under title V of the rehabilitation Act of 1973 (29 U.S.C. 791) or the regulations issued by Federalagencies pursuant to that title. (b) Other laws. This part does not invalidate or limit the remedies, rights, and proceduresof any other Federal laws, or State or local laws [including State common law] that provide greater or equal protection for