BILL NUMBER: AB 152 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JANUARY 22, 2004
AMENDED IN ASSEMBLY JANUARY 5, 2004
AMENDED IN ASSEMBLY SEPTEMBER 10, 2003
INTRODUCED BY Assembly Member Levine
JANUARY 21, 2003
An act to amend Sections 56000, 56032, 56040, 56043, 56170,
56195.7, 56301, 56320, 56321, 56329, 56341.5, 56344, 56345, 56345.1,
56346, 56365, 56381, 56500.3, 56500.4, 56502, 56504.5, 56505, 56506,
56836.155, and 56863 of, to add Section 56440.5
and 56500.6 to, and to add Chapter 5.1 (commencing with
Section 56515) to Part 30 of, the Education Code, relating to special
education.
LEGISLATIVE COUNSEL'S DIGEST
AB 152, as amended, Levine. Special education.
Existing
(1) Existing law establishes a right of
individuals with exceptional needs to receive free and appropriate
public education and ensures the right to special instruction and
related services needed to meet their unique needs, in conformity
with federal law.
This bill would make various revisions generally conforming state
law to federal requirements relating to: pupil identification,
assessment, and eligibility; individualized education program
development, including notice, representation, and hearing procedures
and requirements; multidistrict special education local plan area
monitoring, review, and correction procedures; the provision
of early intervention services; and pupil data
confidentiality, and would make other technical nonsubstantive
changes. To the extent that the bill would require school
districts and local agencies to provide programs or increased levels
of service not required by federal law, this bill would impose a
state-mandated local program.
(2) Existing law, in order to recognize the distribution of pupils
with severe and costly disabilities among special education local
plan areas, requires the State Department of Education, in
conjunction with the Office of the Legislative Analyst, to calculate
an incidence multiplier for each special education local plan area
and requires the Department of Finance to approve the final incidence
multiplier for each special education local plan area. Existing law
requires the Superintendent of Public Instruction to calculate in the
1998-99 fiscal year and each fiscal year thereafter to and including
the 2002-03 fiscal year, an adjusted entitlement for the incidence
of disabilities for each special education local plan area using the
incidence multiplier for each special education local plan area, as
specified.
This bill would extend the requirement that the superintendent
perform that calculation, as specified, through the 2003-04 fiscal
year.
The
(3) The California Constitution requires the state to
reimburse local agencies and school districts for certain costs
mandated by the state. Statutory provisions establish procedures for
making that reimbursement , including
the creation of a State Mandates Claims Fund to pay the costs of
mandates that do not exceed $1,000,000 statewide and other procedures
for claims whose statewide costs exceed $1,000,000 .
This bill would provide that with regard to certain
mandates no reimbursement is required by this act for a
specified reason.
With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 56000 of the Education Code is amended to read:
56000. The Legislature finds and declares all individuals with
exceptional needs, from birth through 21 years of age, have a right
to participate in free appropriate public education and special
educational instruction and services for these persons are needed in
order to ensure the right to an appropriate educational opportunity
to meet their unique needs. The Legislature finds and declares that
California provides full educational opportunity to all eligible
individuals with exceptional needs in accordance with paragraph (2)
of subsection (a) of Section 1412 of Title 20 of the United States
Code.
It is the intent of the Legislature to unify and improve special
education programs in California under the flexible program design of
the Master Plan for Special Education. It is the further intent of
the Legislature to ensure that all individuals with exceptional needs
are provided their rights to appropriate programs and services which
are designed to meet their unique needs under the Individuals with
Disabilities Education Act (20 U.S.C. Sec. 1400 et seq.).
It is the further intent of the Legislature that this part does
not abrogate any right provided to individuals with exceptional needs
and their parents or guardians under the Individuals with
Disabilities Education Act (20 U.S.C. Sec. 1400 et seq.). It is also
the intent of the Legislature that this part does not set a higher
standard of educating individuals with exceptional needs than that
established by Congress under the Individuals with Disabilities
Education Act (20 U.S.C. Sec. 1400 et seq.).
It is the further intent of the Legislature that the Master Plan
for Special Education provide an educational opportunity for
individuals with exceptional needs that is equal to or better than
that provided prior to the implementation of programs under this
part, including, but not limited to, those provided to individuals
previously served in a development center for handicapped pupils.
It is the intent of the Legislature that the restructuring of
special education programs as set forth in the Master Plan for
Special Education be implemented in accordance with this part by all
school districts and county offices.
SEC. 2. Section 56032 of the Education Code is amended to read:
56032. "Individualized education program" means a written
document described in Sections 56345 and 56345.1 for an individual
with exceptional needs that is developed, reviewed, and revised in a
meeting in accordance with Sections 300.340 to 300.350, inclusive, of
Title 34 of the Code of Federal Regulations and this part. It also
means "individualized family service plan" as described in Section
1436 of Title 20 of the United States Code if individualized
education program pertains to an individual with exceptional needs
younger than three years of age.
SEC. 3. Section 56040 of the Education Code is amended to read:
56040. (a) Every individual with exceptional needs, who is
eligible to receive educational instruction, related services, or
both under this part shall receive educational instruction, services,
or both, at no cost to his or her parents or, as appropriate, to him
or her. A free appropriate public education shall be available to
individuals with exceptional needs in accordance with paragraph (1)
of subsection (a) of Section 1412 of Title 20 of the United States
Code and Section 300.121 of Title 34 of the Code of Federal
Regulations.
(b) An individual, aged 18 through 21, who, in the educational
placement prior to his or her incarceration in an adult correctional
facility was not identified as being an individual with exceptional
needs or did not have an individualized education program under this
part, is not entitled to a free appropriate public education pursuant
to clause (ii) of subparagraph (B) of paragraph (1) of subsection
(a) of Section 1412 of Title 20 of the United States Code.
SEC. 4. Section 56043 of the Education Code is amended to read:
56043. The primary timelines affecting special education programs
are as follows:
(a) A proposed assessment plan shall be developed within 15
calendar days of referral for assessment, not counting calendar days
between the pupil's regular school sessions or terms or calendar days
of school vacation in excess of five schooldays from the date of
receipt of the referral, unless the parent or guardian agrees, in
writing, to an extension, pursuant to subdivision (a) of Section
56321.
(b) A parent or guardian shall have at least 15 calendar days from
the receipt of the proposed assessment plan to arrive at a decision,
pursuant to subdivision (c) of Section 56321.
(c) A parent or guardian shall be notified of the individualized
education program meeting early enough to ensure an opportunity to
attend, pursuant to subdivision (b) of Section 56341.5.
(d) An individualized education program required as a result of an
assessment of a pupil shall be developed within a total time not to
exceed 50 calendar days, not counting days between the pupil's
regular school sessions, terms, or days of school vacation in excess
of five schooldays, from the date of receipt of the parent's or
guardian's written consent for assessment, unless the parent or
guardian agrees, in writing, to an extension, pursuant to Section
56344. However, a meeting to develop an individualized education
program meeting for the pupil shall be conducted
within 30 days of a determination that the child needs special
education and related services pursuant to paragraph (2) of
subsection (b) of Section 300.343 of Title 34 of the Code of Federal
Regulations and in accordance with Section 56344.
(e) Beginning at age 14 , or younger , if
determined by the individualized education program team pursuant to
paragraph (1) of subsection (b) of Section 300.347 of Title 34 of the
Code of Federal Regulations, and updated annually,
a statement of the transition service needs of the pupil
shall be included in the pupil's individualized education program,
pursuant to subdivision (a) of Section 56345.1 and shall be
updated annually .
(f) Beginning at age 16 or younger, and annually thereafter, a
statement of needed transition services shall be included in the
pupil's individualized education program, pursuant to subdivision (b)
of Section 56345.1.
(g) A pupil's individualized education program shall be
implemented as soon as possible following the individualized
education program meeting, pursuant to Section 3040 of Title 5 of the
California Code of Regulations.
(h) An individualized education program team shall meet at least
annually to review a pupil's progress, the individualized education
program, including whether the annual goals for the pupil are being
achieved, the appropriateness of the placement, and to make any
necessary revisions, pursuant to subdivision (d) of Section 56343,
subdivision (a) of Section 56380, and Section 3068 of Title 5 of the
California Code of Regulations.
(i) A reassessment of a pupil shall be conducted at least once
every three years or more frequently, if conditions warrant a
reassessment and a new individualized education program to be
developed, pursuant to Section 56381.
(j) A meeting of an individualized education program team
requested by a parent or guardian to review an individualized
education program pursuant to subdivision (c) of Section 56343 shall
be held within 30 calendar days, not counting days in July and
August, from the date of receipt of the parent's or guardian's
written request, pursuant to Section 56343.5.
(k) The administrator of a local program under this part shall
ensure that the pupil is immediately provided an interim placement
for a period not to exceed 30 calendar days whenever a pupil
transfers into a school district from a school district not operating
programs under the same local plan in which he or she was last
enrolled in a special education program pursuant to Section 56325.
(l) The parent or guardian shall have the right and opportunity to
examine all school records of the child and to receive copies within
five calendar days after a request is made by the parent or
guardian, either orally or in writing, pursuant to Section 56504 and
Chapter 6.5 (commencing with Section 49060) of Part 27.
(m) Upon receipt of a request from an educational agency where an
individual with exceptional needs has enrolled, a former educational
agency shall send the pupil's special education records, or a copy
thereof, within five working days, pursuant to subdivision (a) of
Section 3024 of Title 5 of the California Code of Regulations.
(n) The department shall do all of the following:
(1) Have a time limit of 60 calendar days after a complaint is
filed with the state education agency to investigate the complaint.
(2) Give the complainant the opportunity to submit additional
information about the allegations in the complaint.
(3) Review all relevant information and make an independent
determination as to whether there is a violation of a requirement of
this part or Part B of the Individuals with Disabilities Education
Act (20 U.S.C. Sec. 1400 et seq.).
(4) Issue a written decision, pursuant to Section 300.661 of Title
34 of the Code of Federal Regulations.
(o) A prehearing mediation conference shall be scheduled within 15
calendar days of receipt by the superintendent of the request for
mediation, and shall be completed within 30 calendar days after the
request for mediation, unless both parties to the prehearing
mediation conference agree to extend the time for completing the
mediation, pursuant to Section 56500.3.
(p) Any request for a due process hearing arising from subdivision
(a) of Section 56501 shall be filed within three years from the date
the party initiating the request knew or had reason to know of facts
underlying the basis for the request, pursuant to subdivision (j) of
Section 56505.
(q) The superintendent shall ensure that, within 45 calendar days
after receipt of a written due process hearing request, the hearing
is immediately commenced and completed, including any mediation
requested at any point during the hearing process, and a final
administrative decision is rendered, pursuant to subdivision (a) of
Section 56502.
(r) If either party to a due process hearing intends to be
represented by an attorney in the due process hearing, notice of that
intent shall be given to the other party at least 10 calendar days
prior to the hearing, pursuant to subdivision (a) of Section 56507.
(s) Any party to a due process hearing shall have the right to be
informed by the other parties to the hearing, at least 10 calendar
days prior to the hearing, as to what those parties believe are the
issues to be decided at the hearing and their proposed resolution of
those issues, pursuant to paragraph (6) of subdivision (e) of Section
56505.
(t) Any party to a due process hearing shall have the right to
receive from other parties to the hearing, at least five business
days prior to the hearing, a copy of all documents, including all
assessments completed and not completed by that date, and a list of
all witnesses and their general area of testimony that the parties
intend to present at the hearing, pursuant to paragraph (7) of
subdivision (e) of Section 56505.
(u) An appeal of a due process hearing decision shall be made
within 90 calendar days of receipt of the hearing decision, pursuant
to subdivision (i) of Section 56505.
(v) When an individualized education program calls for a
residential placement as a result of a review by an expanded
individualized education program team, the individualized education
program shall include a provision for a review, at least every six
months, by the full individualized education program team of all of
the following pursuant to paragraph (2) of subdivision (c) of Section
7572.5 of the Government Code:
(1) The case progress.
(2) The continuing need for out-of-home placement.
(3) The extent of compliance with the individualized education
program.
(4) Progress toward alleviating the need for out-of-home care.
(w) No later than the pupil's 17th birthday, a statement shall be
included in the pupil's individualized education program that the
pupil has been informed of his or her rights that will transfer to
the pupil upon reaching 18 years of age pursuant to Section 300.517
of Title 34 of the Code of Federal Regulations, Section 56041.5, and
paragraph (8) of subdivision (a) of Section 56345.
SEC. 5. Section 56170 of the Education Code is amended to read:
56170. As used in this part, "private school children with
disabilities" means children with disabilities enrolled by a parent
in private preschool or private elementary and secondary
schools or facilities, in accordance with Section 300.450
of Title 34 of the Code of Federal Regulations, other than
individuals with exceptional needs placed by a district, special
education local plan area, or county office in a nonpublic,
nonsectarian school pursuant to Section 56365.
SEC. 6. Section 56195.7 of the Education Code is amended to read:
56195.7. In addition to the provisions required to be included in
the local plan pursuant to Chapter 3 (commencing with Section
56200), each special education local plan area that submits a local
plan pursuant to subdivision (b) of Section 56195.1 and each county
office that submits a local plan pursuant to subdivision (c) of
Section 56195.1 shall develop written agreements to be entered into
by entities participating in the plan. The agreements need not be
submitted to the superintendent. These agreements shall include, but
not be limited to, the following:
(a) A coordinated identification, referral, and placement system
pursuant to Chapter 4 (commencing with Section 56300).
(b) Procedural safeguards pursuant to Chapter 5 (commencing with
Section 56500).
(c) Regionalized services to local programs, including, but not
limited to, all of the following:
(1) Program specialist service pursuant to Section 56368.
(2) Personnel development, including training for staff, parents,
and members of the community advisory committee pursuant to Article 3
(commencing with Section 56240).
(3) Evaluation pursuant to Chapter 6 (commencing with Section
56600).
(4) Data collection and development of management information
systems.
(5) Curriculum development.
(6) Provision for ongoing review of programs conducted, and
procedures utilized, under the local plan, and a mechanism for
correcting any identified problem.
(d) A description of the process for coordinating services with
other local public agencies that are funded to serve individuals with
exceptional needs.
(e) A description of the process for coordinating and providing
services to individuals with exceptional needs placed in public
hospitals, proprietary hospitals, and other residential medical
facilities pursuant to Article 5.5 (commencing with Section 56167) of
Chapter 2.
(f) A description of the process for coordinating and providing
services to individuals with exceptional needs placed in licensed
children's institutions and foster family homes pursuant to Article 5
(commencing with Section 56155) of Chapter 2.
(g) A description of the process for coordinating and providing
services to individuals with exceptional needs placed in juvenile
court schools or county community schools pursuant to Section 56150.
(h) A budget for special education and related services that shall
be maintained by the special education local plan area and be open
to the public covering the entities providing programs or services
within the special education local plan area. The budget language
shall be presented in a form that is understandable by the general
public. For each local educational agency or other entity providing
a program or service, the budget, at minimum, shall display the
following:
(1) Expenditures by object code and classification for the
previous fiscal year and the budget by the same object code
classification for the current fiscal year.
(2) The number and type of certificated instructional and support
personnel, including the type of class setting to which they are
assigned, if appropriate.
(3) The number of instructional aides and other qualified
classified personnel.
(4) The number of enrolled individuals with exceptional needs
receiving each type of service provided.
(i) For multidistrict special education local plan areas, a
description of the policymaking process that shall include a
description of the local method used to distribute state and federal
funds among the local educational agencies in the special education
local plan area. The local method to distribute funds shall be
approved according to the policymaking process established consistent
with subdivision (f) of Section 56001 and pursuant to paragraph (3)
of subdivision (b) of Section 56205 or subdivision (c) of Section
56200, whichever is appropriate.
(1) In accordance with Section 1413 of Title 20 of the United
States Code, each multidistrict special education local plan area
established pursuant to subdivision (b) of Section 56195.1 shall have
a written procedure for the ongoing review of programs conducted,
and procedures utilized, under the local plan, and a mechanism for
correcting any identified problem pursuant to paragraph (6) of
subdivision (c).
(2) Multidistrict special education local plan areas established
pursuant to subdivision (b) of Section 56195.1 and a district or
districts joined with the county office of education
in accordance with subdivision (c) of Section 56195.1 shall
have a written agreement entered into by entities participating in
the local plan that includes a provision for ongoing review of
programs conducted, and procedures utilized, under the local plan,
and a mechanism for correcting any identified problem pursuant to
paragraph (6) of subdivision (c).
(3) The written procedure referenced in paragraph (1) and the
written agreement referenced in paragraph (2) need not be submitted
to the superintendent but shall be available upon request by the
department.
SEC. 7. Section 56301 of the Education Code is amended to read:
56301. (a) All individuals with disabilities residing in the
state, including pupils with disabilities who are enrolled in
elementary and secondary schools and private schools, including
parochial schools, regardless of the severity of their disabilities,
and who are in need of special education and related services, shall
be identified, located, and assessed as required by paragraph (3) and
clause (ii) of paragraph (10) of subsection (a) of Section 1412 of
Title 20 of the United States Code.
(b) In accordance with Section 300.125 of Title 34 of the Code of
Federal Regulations, the requirements of this section also apply to
highly mobile individuals with exceptional needs, such as migrant and
homeless children, and children who are suspected of being an
individual with exceptional needs pursuant to Section 56026 and in
need of special education, even though they are advancing from grade
to grade.
(c) Each special education local plan area shall establish written
policies and procedures for use by its constituent local agencies
for a continuous child-find system that addresses the relationships
among identification, screening, referral, assessment, planning,
implementation, review, and the triennial assessment. The policies
and procedures shall include, but need not be limited to, written
notification of all parents of their rights under this chapter, and
the procedure for initiating a referral for assessment to identify
individuals with exceptional needs. Parents shall be given a copy of
their rights and procedural safeguards upon initial referral for
assessment, upon notice of an individualized education program
meeting or reassessment, upon filing a complaint, and upon filing for
a prehearing mediation conference pursuant to Section 56500.3 or a
due process hearing request pursuant to Section 56502.
(d) Child find data collected pursuant to this chapter, or
collected pursuant to a regulation or an interagency agreement, are
subject to the confidentiality requirements of Section 300.125 and
Sections 300.560 to 300.577, inclusive, of Title 34 of the Code of
Federal Regulations.
SEC. 8. Section 56320 of the Education Code is amended to read:
56320. Before any action is taken with respect to the initial
placement of an individual with exceptional needs in special
education instruction, an individual assessment of the pupil's
educational needs shall be conducted, by qualified persons, in
accordance with requirements including, but not limited to, all the
following:
(a) Testing and assessment materials and procedures used for the
purposes of assessment and placement of individuals with exceptional
needs are selected and administered so as not to be racially,
culturally, or sexually discriminatory.
(b) Tests and other assessment materials meet all the following
requirements:
(1) Are provided and administered in the pupil's native language,
pursuant to Section 300.19 of Title 34 of the Code of Federal
Regulations, or other mode of communication, unless the assessment
plan indicates reasons why this provision and administration are not
clearly feasible.
(2) Have been validated for the specific purpose for which they
are used.
(3) Are administered by trained personnel in conformance with the
instructions provided by the producer of the tests and other
assessment materials, except that individually administered tests of
intellectual or emotional functioning shall be administered by a
credentialed school psychologist.
(c) Tests and other assessment materials include those tailored to
assess specific areas of educational need and not merely those which
are designed to provide a single general intelligence quotient.
(d) Tests are selected and administered to best ensure that when a
test administered to a pupil with impaired sensory, manual, or
speaking skills produces test results that accurately reflect the
pupil's aptitude, achievement level, or any other factors the test
purports to measure and not the pupil's impaired sensory, manual, or
speaking skills unless those skills are the factors the test purports
to measure.
(e) Pursuant to subsection (f) of Section 300.532 of Title 34 of
the Code of Federal Regulations, no single procedure is used as the
sole criterion for determining whether a pupil is an individual with
exceptional needs and for determining an appropriate educational
program for the pupil.
(f) The pupil is assessed in all areas related to the suspected
disability including, if appropriate, health and development, vision,
including low vision, hearing, motor abilities, language function,
general intelligence, academic performance, communicative status,
self-help, orientation and mobility skills, career and vocational
abilities and interests, and social and emotional status. A
developmental history is obtained, when appropriate. For pupils with
residual vision, a low vision assessment shall be provided in
accordance with guidelines established pursuant to Section 56136. In
assessing each pupil under this article, the assessment shall be
conducted in accordance with subsections (h), (i), and (j) of Section
300.532 of Title 34 of the Code of Federal Regulations.
(g) The assessment of a pupil, including the assessment of a pupil
with a suspected low incidence disability, shall be conducted by
persons knowledgeable of that disability. Special attention shall be
given to the unique educational needs, including, but not limited
to, skills and the need for specialized services, materials, and
equipment consistent with guidelines established pursuant to Section
56136.
(h) As part of an initial assessment, if appropriate, and as part
of any reassessment under Part B of the Individuals with Disabilities
Education Act (20 U.S.C. Sec. 1400 et seq.) and this
part, the group that includes members of the individualized education
program team, and other qualified professionals, as appropriate,
shall follow the procedures specified in subsection (a) of Section
300.533 of Title 34 of the Code of Federal Regulations. The group
may conduct its review without a meeting.
SEC. 9. Section 56321 of the Education Code is amended to read:
56321. (a) If an assessment for the development or revision of
the individualized education program is to be conducted, the parent
or guardian of the pupil shall be given, in writing, a proposed
assessment plan within 15 days of the referral for assessment not
counting days between the pupil's regular school sessions or terms or
days of school vacation in excess of five schooldays from the date
of receipt of the referral, unless the parent or guardian agrees, in
writing, to an extension. However, in any event, the assessment plan
shall be developed within 10 days after the commencement of the
subsequent regular school year or the pupil's regular school term as
determined by each district's school calendar for each pupil for whom
a referral has been made 10 days or less prior to the end of the
regular school year. In the case of pupil school vacations, the
15-day time shall recommence on the date that the pupil's regular
schooldays reconvene. A copy of the notice of a parent's or guardian'
s rights shall be attached to the assessment plan. A written
explanation of all the procedural safeguards under the Individuals
with Disabilities Education Act (20 U.S.C. Sec. 1400 and following),
and the rights and procedures contained in Chapter 5 (commencing
with Section 56500), shall be included in the notice of a parent's or
guardian's rights, including information on the procedures for
requesting an informal meeting, prehearing mediation conference,
mediation conference, or due process hearing; the timelines for
completing each process; whether the process is optional; and the
type of representative who may be invited to participate.
(b) The proposed assessment plan given to parents or guardians
shall meet all the following requirements:
(1) Be in language easily understood by the general public.
(2) Be provided in the primary language of the parent or guardian
or other mode of communication used by the parent or guardian, unless
to do so is clearly not feasible.
(3) Explain the types of assessments to be conducted.
(4) State that no individualized education program will
result from the assessment without the consent of the parent.
(c) An assessment may not be conducted, unless the written consent
of the parent or guardian is obtained prior to the assessment except
pursuant to subdivision (e) of Section 56506. The parent or
guardian shall have at least 15 days from the receipt of the proposed
assessment plan to arrive at a decision. Assessment may begin
immediately upon receipt of the consent.
(d) Consent for initial assessment may not be construed as consent
for initial placement or initial provision of special education and
related services to an individual with exceptional needs, pursuant to
paragraph (2) of subsection (a) of Section 300.505 of Title 34 of
the Code of Federal Regulations.
(e) In accordance with paragraph (3) of subsection (a) of Section
300.505 of Title 34 of the Code of Federal Regulations, parental
consent is not required before reviewing existing data as part of an
assessment or reassessment, or before administering a test or other
assessment that is administered to all children, unless before
administration of that test or assessment, consent is required of the
parents of all the children.
SEC. 10. Section 56329 of the Education Code, as amended by
Chapter 368 of the Statutes of 2003, is amended to read:
56329. As part of the assessment plan given to parents or
guardians pursuant to Section 56321, the parent or guardian of the
pupil shall be provided with a written notice that shall include all
of the following information:
(a) Upon completion of the administration of tests and other
assessment materials, an individualized education program team
meeting, including the parent or guardian and his or her
representatives, shall be scheduled, pursuant to Section 56341, to
determine whether the pupil is an individual with exceptional needs
as defined in Section 56026, and to discuss the assessment, the
educational recommendations, and the reasons for these
recommendations. A copy of the assessment report and the
documentation of determination of eligibility shall be given to the
parent or guardian.
(b) A parent or guardian has the right to obtain, at public
expense, an independent educational assessment of the pupil from
qualified specialists, as defined by regulations of the board, if the
parent or guardian disagrees with an assessment obtained by the
public education agency, in accordance with Section 300.502 of Title
34 of the Code of Federal Regulations. If a public education agency
observed the pupil in conducting its assessment, or if its assessment
procedures make it permissible to have in-class observation of a
pupil, an equivalent opportunity shall apply to an independent
educational assessment of the pupil in the pupil's current
educational placement and setting, and to the observation of an
educational placement and setting, if any, proposed by the public
education agency, regardless of whether the independent educational
assessment is initiated before or after the filing of a due process
hearing proceeding.
(c) The public education agency may initiate a due process hearing
pursuant to Chapter 5 (commencing with Section 56500) to demonstrate
that its assessment is appropriate. If the final decision resulting
from the due process hearing is that the assessment is appropriate,
the parent or guardian still has the right to an independent
educational assessment, but not at public expense.
If the parent or guardian obtains an independent educational
assessment at private expense, the results of the assessment shall be
considered by the public education agency with respect to the
provision of free appropriate public education to the child, and may
be presented as evidence at a due process hearing pursuant to Chapter
5 (commencing with Section 56500) regarding the child. If a public
education agency observed the pupil in conducting its assessment, or
if its assessment procedures make it permissible to have in-class
observation of a pupil, an equivalent opportunity shall apply to an
independent educational assessment of the pupil in the pupil's
current educational placement and setting, and to the observation of
an educational placement and setting, if any, proposed by the public
education agency, regardless of whether the independent educational
assessment is initiated before or after the filing of a due process
hearing proceeding.
(d) If a parent or guardian proposes a publicly financed placement
of the pupil in a nonpublic school, the public education agency
shall have an opportunity to observe the proposed placement and the
pupil in the proposed placement, if the pupil has already been
unilaterally placed in the nonpublic school by the parent or
guardian. Any observation conducted pursuant to this subdivision
shall only be of the pupil who is the subject of the observation and
may not include the observation or assessment of any other pupil in
the proposed placement. The observation or assessment by a public
education agency of a pupil other than the pupil who is the subject
of the observation pursuant to this subdivision may be conducted, if
at all, only with the consent of the parent or guardian of the other
pupil pursuant to this article. The results of any observation or
assessment of any other pupil in violation of this subdivision are
inadmissible in any due process or judicial proceeding regarding the
free appropriate public education of that other pupil.
(e) If a due process hearing officer requests an independent
educational assessment as part of a hearing pursuant to subsection
(d) of Section 300.502 of Title 34 of the Code of Federal
Regulations, the cost of the assessment shall be at public expense.
SEC. 11. Section 56341.5 of the Education Code, as amended by
Chapter 62 of the Statutes of 2003, is amended to read:
56341.5. (a) Each district, special education local plan area, or
county office convening a meeting of the individualized education
program team shall take steps to ensure that no less than one of the
parents or guardians of the individual with exceptional needs are
present at each individualized education program meeting or are
afforded the opportunity to participate.
(b) Parents or guardians shall be notified of the individualized
education program meeting early enough to ensure an opportunity to
attend.
(c) The individualized education program meeting shall be
scheduled at a mutually agreed upon time and place. The notice of
the meeting under subdivision (b) shall indicate the purpose, time,
and location of the meeting and who shall be in attendance. Parents
or guardians shall also be informed in the notice of the right,
pursuant to clause (ii) of paragraph (1) of subsection (b) of Section
300.345 of Title 34 of the Code of Federal Regulation,
Regulations, to bring other people to the
meeting who have knowledge or special expertise regarding the
individual with exceptional needs.
(d) For an individual with exceptional needs beginning at age 14,
or younger, if appropriate, the meeting notice shall also indicate
that a purpose of the meeting will be the development of a statement
of the transition services needs of the individual required by
subdivision (a) of Section 56345.1 and indicate that the individual
with exceptional needs is also invited to attend. In accordance with
paragraph (3) of subsection (b) of Section 300.345 of the Code of
Federal Regulations, for an individual with exceptional needs
beginning at 16 years of age or younger, if appropriate, the meeting
notice shall also indicate that a purpose of the meeting is the
consideration of needed transition services for the individual
required by subdivision (b) of Section 56345.1 and indicate that the
individual with exceptional needs is invited to attend. If the pupil
does not attend the individualized education program meeting, the
district, special education local plan area, or county office shall
take steps to ensure that the pupil's preferences and interests are
considered in accordance with paragraph (2) of subsection (b) of
Section 300.344 of Title 34 of the Code of Federal Regulations.
(e) The meeting notice shall also identify any other local agency
in accordance with paragraph (3) of subsection (b) of Section 300.344
of Title 34 of the Code of Federal Regulations.
(f) If no parent or guardian can attend the meeting, the district,
special education local plan area, or county office shall use other
methods to ensure parent or guardian participation, including
individual or conference telephone calls.
(g) A meeting may be conducted without a parent or guardian in
attendance if the district, special education local plan area, or
county office is unable to convince the parent or guardian that he or
she should attend. In this event, the district, special education
local plan area, or county office shall maintain a record of its
attempts to arrange a mutually agreed-upon time and place, as
follows:
(1) Detailed records of telephone calls made or attempted and the
results of those calls.
(2) Copies of correspondence sent to the parents or guardians and
any responses received.
(3) Detailed records of visits made to the home or place of
employment of the parent or guardian and the results of those visits.
(h) The district, special education local plan area, or county
office shall take whatever action is necessary to ensure that the
parent or guardian understands the proceedings at a meeting,
including arranging for an interpreter for parents or guardians with
deafness or whose native language is a language other than English.
(i) The district, special education local plan area, or county
office shall give the parent or guardian a copy of the individualized
education program, at no cost to the parent or guardian.
SEC. 12. Section 56344 of the Education Code is amended to read:
56344. (a) An individualized education program required as a
result of an assessment of a pupil shall be developed within a total
time not to exceed 50 days, not counting days between the pupil's
regular school sessions, terms, or days of school vacation in excess
of five schooldays, from the date of receipt of the parent's written
consent for assessment, unless the parent agrees, in writing, to an
extension. However, an individualized education program required as
a result of an assessment of a pupil shall be developed within 30
days after the commencement of the subsequent regular school year as
determined by each district's school calendar for each pupil for whom
a referral has been made 20 days or less prior to the end of the
regular school year. In the case of pupil school vacations, the
50-day time shall recommence on the date that pupil schooldays
reconvene. A meeting to develop an individualized education program
for the pupil shall be conducted within 30 days of a determination
that the pupil needs special education and related services pursuant
to paragraph (2) of subsection (b) of Section 300.343 of Title 34 of
the Code of Federal Regulations.
(b) Each district, special education local plan area, or county
office shall have an individualized education program in effect for
each individual with exceptional needs within its jurisdiction at the
beginning of each school year in accordance with subdivision (a) and
pursuant to subsections (a) and (b) of Section 300.342 of Title 34
of the Code of Federal Regulations.
SEC. 13. Section 56345 of the Education Code is amended to read:
56345. (a) The individualized education program is a written
statement determined in a meeting of the individualized education
program team and shall include, but not be limited to, all of the
following:
(1) The present levels of the pupil's educational performance,
including the following:
(A) For a schoolage child, how the pupil's disability affects the
pupil's involvement and progress in the general curriculum.
(B) For a preschoolage child, as appropriate, how the disability
affects the child's participation in appropriate activities.
(2) The measurable annual goals, including benchmarks or
short-term objectives related to the following:
(A) Meeting the pupil's needs that result from the pupil's
disability to enable the pupil to be involved in and progress in the
general curriculum.
(B) Meeting each of the pupil's other educational needs that
result from the pupil's disability.
(3) The specific special educational instruction and related
services and supplementary aids and services to be provided to the
pupil, or on behalf of the pupil, and a statement of the program
modifications or supports for school personnel that will be provided
for the pupil in order to do the following:
(A) To advance appropriately toward attaining the annual goals.
(B) To be involved and progress in the general curriculum in
accordance with subparagraph (A) of paragraph (1) and to participate
in extracurricular and other nonacademic activities.
(C) To be educated and participate with other pupils with
disabilities and nondisabled pupils in the activities described in
this section.
(4) An explanation of the extent, if any, to which the pupil will
not participate with nondisabled pupils in regular classes and in the
activities described in paragraph (3).
(5) The individual modifications in the administration of state or
districtwide assessments of pupil achievement that are needed in
order for the pupil to participate in the assessment. If the
individualized education program team determines that the pupil will
not participate in a particular state or districtwide assessment of
pupil achievement (or part of an assessment), a statement of the
following:
(A) Why that assessment is not appropriate for the pupil.
(B) How the pupil will be assessed.
(6) The projected date for the beginning of the services and
modifications described in paragraph (3), and the anticipated
frequency, location, and duration of those services and modifications
included in the individualized education program.
(7) Appropriate objective criteria, evaluation procedures, and
schedules for determining, on at least an annual basis, whether the
annual goals are being achieved.
(8) Beginning at least one year before the pupil reaches the age
of 18, a statement shall be included in the individualized education
program that the pupil has been informed of his or her rights under
this part, if any, that will transfer to the pupil upon reaching the
age of 18 pursuant to Section 56041.5.
(9) A statement of how the pupil's progress toward the annual
goals described in paragraph (2) will be measured.
(10) A statement of how the pupil's parents or guardians will be
regularly informed, at least as often as parents or guardians are
informed of their nondisabled pupil's progress in the following:
(A) The pupil's progress toward the annual goals described in
paragraph (2).
(B) The extent to which that progress is sufficient to enable the
pupil to achieve the goals by the end of the year.
(b) If appropriate, the individualized education program shall
also include, but not be limited to, all of the following:
(1) For pupils in grades 7 to 12, inclusive, any alternative means
and modes necessary for the pupil to complete the district's
prescribed course of study and to meet or exceed proficiency
standards for graduation.
(2) For individuals whose primary language is other than English,
linguistically appropriate goals, objectives, programs and services.
(3) Extended school year services when needed, as determined by
the individualized education program team.
(4) Provision for the transition into the regular class program if
the pupil is to be transferred from a special class or nonpublic,
nonsectarian school into a regular class in a public school for any
part of the schoolday, including the following:
(A) A description of activities provided to integrate the pupil
into the regular education program. The description shall indicate
the nature of each activity, and the time spent on the activity each
day or week.
(B) A description of the activities provided to support the
transition of pupils from the special education program into the
regular education program.
(5) For pupils with low-incidence disabilities, specialized
services, materials, and equipment, consistent with guidelines
established pursuant to Section 56136.
(c) It is the intent of the Legislature in requiring
individualized education programs, that the local educational agency
is responsible for providing the services delineated in the
individualized education program. However, the Legislature recognizes
that some pupils may not meet or exceed the growth projected in the
annual goals and objectives of the pupil's individualized education
program. Pursuant to paragraph (2) of subsection (a) of Section
300.350 of Title 34 of the Code of Federal Regulations, public
education agencies shall make a good faith effort to assist each
individual with exceptional needs to achieve the goals and objectives
or benchmarks listed in the individualized education program of the
pupil.
(d) Consistent with Section 56000.5 and clause (iv) of
subparagraph (B) of paragraph (3) of subsection (d) of Section 1414
of Title 20 of the United States Code, it is the intent of the
Legislature that, in making a determination of what constitutes an
appropriate education to meet the unique needs of a deaf or
hard-of-hearing pupil in the least restrictive environment, the
individualized education program team shall consider the related
services and program options that provide the pupil with an equal
opportunity for communication access. The individualized education
program team shall specifically discuss the communication needs of
the pupil, consistent with the guidelines adopted pursuant to Section
56136 and Page 49274 of Volume 57 of the Federal Register, including
all of the following:
(1) The pupil's primary language mode and language, which may
include the use of spoken language with or without visual cues, or
the use of sign language, or a combination of both.
(2) The availability of a sufficient number of age, cognitive, and
language peers of similar abilities which may be met by
consolidating services into a local plan areawide program or
providing placement pursuant to Section 56361.
(3) Appropriate, direct, and ongoing language access to special
education teachers and other specialists who are proficient in the
pupil's primary language mode and language consistent with existing
law regarding teacher training requirements.
(4) Services necessary to ensure communication-accessible academic
instructions, school services, and extracurricular activities
consistent with the Vocational Rehabilitation Act of 1973 as set
forth in Section 794 of Title 29 of the United States Code and the
Americans with Disabilities Act of 1990 as set forth in Section
12101, and following, of Title 42 of the United States Code.
(e) General Fund money made available to school districts or
local agencies may not be used for any additional responsibilities
and services associated with paragraphs (1) and (2) of subdivision
(d), including the training of special education teachers and other
specialists, even if those additional responsibilities or services
are required pursuant to a judicial or state agency determination.
Those responsibilities and services shall only be funded by a local
educational agency as follows:
(1) The costs of those activities shall be funded from existing
programs and funding sources.
(2) Those activities shall be supported by the resources otherwise
made available to those programs.
(3) Those activities shall be consistent with Sections 56240 to
56243, inclusive.
(f) It is the intent of the Legislature that the communication
skills of teachers who work with hard-of-hearing and deaf children be
improved. This section does not remove the local educational agency'
s discretionary authority in regard to in-service activities.
SEC. 14. Section 56345.1 of the Education Code is amended to read:
56345.1. (a) Beginning at age 14, or younger, if determined by
the individualized education program team pursuant to paragraph (1)
of subsection (b) of Section 300.347 of Title 34 of the Code of
Federal Regulations, and updated annually, a
statement of the transition service needs of the pupil shall be
included in the pupil's individualized education program and
shall be updated annually . The statement shall be included
under applicable components of the pupil's individualized education
program that focuses on the pupil's courses of study, such as
participation in advanced-placement courses or a vocational education
program.
(b) Beginning at age 16 or younger and annually thereafter, in
accordance with Section 56462 and paragraph (30) of Section 1401 of
Title 20 of the United States Code, a statement of needed transition
services shall be included in the pupil's individualized education
program, including whenever appropriate, a statement of interagency
responsibilities or any needed linkages.
(c) The term "transition services" means a coordinated set of
activities for an individual with exceptional needs that does the
following:
(1) Is designed within an outcome-oriented process, that promotes
movement from school to postschool activities, including
postsecondary education, vocational training, integrated employment,
including supported employment, continuing and adult education, adult
services, independent living, or community participation.
(2) Is based upon the individual pupil's needs, taking into
account the pupil's preferences and interests.
(3) Includes instruction, related services, community experiences,
the development of employment and other postschool adult living
objectives, and, when appropriate, acquisition of daily living skills
and functional vocational evaluation.
(d) If a participating agency, other than the local educational
agency, fails to provide the transition services described in the
pupil's individualized education program in accordance with this
section, the local educational agency shall reconvene the
individualized education program team to identify alternative
strategies to meet the transition service needs for the pupil set out
in the program.
SEC. 15. Section 56346 of the Education Code is amended to read:
56346. (a) Informed parental consent shall be obtained before
the initial provision of special education and related services to an
individual with exceptional needs pursuant to clause (ii) of
paragraph (1) of subsection (a) of Section 300.505 of Title 34 of the
Code of Federal Regulations.
(b) A pupil may not be required to participate in all or part of
any special education program, unless the parent is first informed,
in writing, of the facts that make participation in the program
necessary or desirable, and of the contents of the individualized
education program, and after this notice, consents, in writing, to
all or part of the individualized education program. If the parent
does not consent to all of the components of the individualized
education program, those components of the program to which the
parent has consented shall be implemented so as not to delay
providing instruction and services to the pupil.
(c) If the local educational agency determines that the part of
the proposed special education program to which the parent does not
consent is necessary to provide a free and appropriate public
education to the pupil, a due process hearing shall be initiated
pursuant to Chapter 5 (commencing with Section 56500), unless a
prehearing mediation conference is held. During the pendency of the
due process hearing, the local educational agency may reconsider the
proposed individualized education program, may choose to meet
informally with the parent pursuant to subdivision (b) of Section
56502, or may hold a mediation conference pursuant to Section 56503.
As an alternative to holding a due process hearing, the parties may
hold a prehearing mediation conference pursuant to Section 56500.3 to
resolve any issue or dispute. If a due process hearing is held, the
hearing decision shall be the final administrative determination and
shall be binding upon the parties. While a prehearing mediation
conference or due process hearing is pending, the pupil shall remain
in his or her current placement, unless the parent and the local
educational agency agree otherwise.
SEC. 16. Section 56365 of the Education Code is amended to read:
56365. (a) Nonpublic, nonsectarian school services, including
services by nonpublic, nonsectarian agencies shall be available.
These services shall be provided pursuant to Section 56366, and in
accordance with Section 300.401 of Title 34 of the Code of Federal
Regulations, under contract with the district, special education
local plan area, or county office to provide the appropriate special
educational facilities, special education, or designated instruction
and services required by the individual with exceptional needs if no
appropriate public education program is available.
(b) Pupils enrolled in nonpublic, nonsectarian schools and
agencies under this section shall be deemed to be enrolled in public
schools for all purposes of Chapter 4 (commencing with Section 41600)
of Part 24 and Section 42238. The district, special education local
plan area, or county office shall be eligible to receive allowances
under Chapter 7.2 (commencing with Section 56836) for services that
are provided to individuals with exceptional needs pursuant to the
contract.
(c) If the state participates in the federal program of assistance
for state-operated or state-supported programs for individuals with
exceptional needs (P.L. 89-313, Sec. 6), pupils enrolled in
nonpublic, nonsectarian schools shall be deemed to be enrolled in
state-supported institutions for all purposes of that program and
shall be eligible to receive allowances under Chapter 7.2 (commencing
with Section 56836) for supplemental services provided to
individuals with exceptional needs pursuant to a contract with a
district, special education local plan area, or county office of
education. In order to participate in the federal program, the state
shall find that participation will not result in any additional
expenditures from the General Fund.
(d) The district, special education local plan area, or county
office shall pay to the nonpublic, nonsectarian school or agency the
full amount of the tuition for individuals with exceptional needs
that are enrolled in programs provided by the nonpublic,
nonsectarian school pursuant to the
contract.
(e) Before contracting with a nonpublic, nonsectarian school or
agency outside of this state, the district, special education local
plan area, or county office shall document its efforts to utilize
public schools or to locate an appropriate nonpublic, nonsectarian
school or agency program, or both, within the state.
(f) If a district, special education local plan area, or county
office places a pupil with a nonpublic, nonsectarian school or agency
outside of this state, the pupil's individualized education program
team shall submit a report to the superintendent within 15 days of
the placement decision. The report shall include information about
the special education and related services provided by the
out-of-state program placement and the costs of the special education
and related services provided, and shall indicate the efforts of the
local educational agency to locate an appropriate public school or
nonpublic, nonsectarian school or agency, or a combination thereof,
within the state. The superintendent shall submit a report to the
State Board of Education on all placements made outside of this
state.
(g) If a school district, special education local plan area, or
county office of education decides to place a pupil with a nonpublic,
nonsectarian school or agency outside of this state, that local
educational agency shall indicate the anticipated date for the return
of the pupil to a public or nonpublic, nonsectarian school or agency
placement, or a combination thereof, located in the state and shall
document efforts during the previous placement year to return the
pupil.
(h) In addition to meeting the requirements of Section 56366.1, a
nonpublic, nonsectarian school or agency that operates a program
outside of this state shall be certified or licensed by that state to
provide, respectively, special education and related services and
designated instruction and related services to pupils under the
Individuals with Disabilities Education Act (20 U.S.C. Sec. 1400 et
seq.).
(i) A nonpublic, nonsectarian school or agency that is located
outside of this state is eligible for certification pursuant to
Section 56366.1 only if a pupil is enrolled in a program operated by
that school or agency pursuant to the recommendation of an
individualized education program team in California, and if that
pupil's parents or guardians reside in California.
(j) In accordance with subsections (b) and (c) of Section 300.402
of Title 34 of the Code of Federal Regulations, the department shall
disseminate copies of applicable standards to each nonpublic,
nonsectarian school and nonpublic, nonsectarian agency to which a
district, special education local plan area, or county office has
referred or placed an individual with exceptional needs and shall
provide an opportunity for those nonpublic, nonsectarian schools and
nonpublic, nonsectarian agencies to participate in the development
and revision of state standards that apply to those entities.
SEC. 17. Section 56381 of the Education Code is amended to read:
56381. (a) A reassessment of the pupil, based upon procedures
specified in Article 2 (commencing with Section 56320) shall be
conducted at least once every three years or more frequently, if
conditions warrant a reassessment, or if the pupil's parent or
teacher requests a reassessment and a new individualized education
program to be developed.
If the reassessment so indicates, a new individualized education
program shall be developed.
(b) As part of any reassessment, the individualized education
program team and other qualified professionals, as appropriate, shall
do the following:
(1) Review existing assessment data on the pupil, including
assessments and information provided by the parents of the pupil, as
specified in clause (i) of paragraph (1) of subsection (a) of Section
300.533 of Title 34 of the Code of Federal Regulations, current
classroom-based assessments and observations, and teacher and related
services providers' observations.
(2) On the basis of the review conducted pursuant to paragraph
(1), and input from the pupil's parents, identify what additional
data, if any, is needed to determine:
(A) Whether the pupil continues to have a disability described in
paragraph (3) of Section 1401 of Title 20 of the United States Code.
(B) The present levels of performance and educational needs of the
pupil.
(C) Whether the pupil continues to need special education and
related services.
(D) Whether any additions or modifications to the special
education and related services are needed to enable the pupil to meet
the measurable annual goals set out in the individualized education
program of the pupil and to participate, as appropriate, in the
general curriculum.
(c) The local educational agency shall administer tests and other
assessment materials needed to produce the data identified by the
individualized education program team.
(d) If the individualized education program team and other
qualified professionals, as appropriate, determine that no additional
data is needed to determine whether the pupil continues to be an
individual with exceptional needs, the local educational agency shall
notify the pupil's parents of that determination and the reasons for
it, and the right of the parents to request an assessment to
determine whether the pupil continues to be an individual with
exceptional needs. The local educational agency is not required to
conduct an assessment, unless requested by the pupil's parents.
(e) A local educational agency shall assess an individual with
exceptional needs in accordance with this section and procedures
specified in Article 2 (commencing with Section 56320), as provided
in paragraph (2) of subsection (c) of Section 300.534 of Title 34 of
the Code of Federal Regulations.
(f) A reassessment may not be conducted, unless the written
consent of the parent is obtained prior to reassessment, except
pursuant to subdivision (e) of Section 56506. Pursuant to paragraphs
(1) and (2) of subsection (c) of Section 300.505 of Title 34 of the
Code of Federal Regulations, informed parental consent need not be
obtained for the reassessment of an individual with exceptional needs
if the local educational agency can demonstrate that it has taken
reasonable measures to obtain that consent and the child's parent has
failed to respond. To meet the reasonable measure requirements of
this subdivision, the local educational agency shall use procedures
consistent with those set forth in subsection (d) of Section 300.345
of Title 34 of the Code of Federal Regulations.
(g) The individualized education program team and other qualified
professionals referenced in subdivision (b) may conduct the review
without a meeting, as provided in subsection (b) of Section 300.533
of Title 34 of the Code of Federal Regulations.
(h) Before determining that the individual is no longer an
individual with exceptional needs, a local educational agency shall
assess the individual in accordance with Section 56320 and this
section, as appropriate, and Sections 300.532 and 300.533 of Title 34
of the Code of Federal Regulations, pursuant to paragraph (1) of
subsection (c) of Section 300.534 of Title 34 of the Code of Federal
Regulations.
SEC. 18. Section 56440.5 is added to the Education Code, to read:
56440.5. Each local educational agency shall ensure that a free
appropriate public education is available to every child eligible
under this part and under the Individuals with Disabilities Education
Act (20 U.S.C. Sec. 1400 et seq.), including children under three
years of age not receiving early education program services pursuant
to Chapter 4.4 (commencing with Section 56425), or early intervention
services pursuant to Chapter 1 (commencing with Section 95000) of
Title 14 of the Government Code no later than the child's third
birthday and that an individualized education program is in effect by
that date as required by Section 300.121 of Title 34 of the Code of
Federal Regulations. If the child's birthday occurs during the
summer, the child's individualized education program team shall
determine the date when services under the individualized education
program will begin.
SEC. 19.
SEC. 18. Section 56500.3 of the Education Code is amended to
read:
56500.3. (a) It is the intent of the Legislature that parties to
special education disputes be encouraged to seek resolution through
mediation prior to filing a request for a due process hearing. It is
also the intent of the Legislature that these voluntary prehearing
request mediation conferences be an informal process conducted in a
nonadversarial atmosphere to resolve issues relating to the
identification, assessment, or educational placement of the child, or
the provision of a free appropriate public education to the child,
to the satisfaction of both parties. Therefore, attorneys or other
independent contractors used to provide legal advocacy services may
not attend or otherwise participate in the prehearing request
mediation conferences.
(b) This part does not preclude the parent or the public
educational agency from being accompanied and advised by nonattorney
representatives in the mediation conferences and consulting with an
attorney prior to or following a mediation conference. For purposes
of this section, "attorney" means an active, practicing member of the
State Bar of California or another independent contractor used to
provide legal advocacy services, but does not mean a parent of the
pupil who is also an attorney.
(c) Requesting or participating in a mediation conference is not a
prerequisite to requesting a due process hearing.
(d) All requests for a mediation conference shall be filed with
the superintendent. The party initiating a mediation conference by
filing a written request with the superintendent shall provide the
other party to the mediation with a copy of the request at the same
time the request is filed with the superintendent. The mediation
conference shall be conducted by a person knowledgeable in the
process of reconciling differences in a nonadversarial manner and
under contract with the department pursuant to Section 56504.5. The
mediator shall be knowledgeable in the laws and regulations governing
special education.
(e) The prehearing mediation conference shall be scheduled within
15 days of receipt by the superintendent of the request for
mediation. The mediation conference shall be completed within 30
days after receipt of the request for mediation unless both parties
to the prehearing mediation conference agree to extend the time for
completing the mediation. Pursuant to paragraph (3) of subsection
(b) of Section 300.506 of Title 34 of the Code of Federal
Regulations, and to encourage the use of mediation, the state shall
bear the cost of the mediation process, including any meetings
described in subsection (d) of Section 300.506 of Title 34 of the
Code of Federal Regulations. The costs of mediation shall be
included in the contract described in Section 56504.5.
(f) Based upon the mediation conference, the district
superintendent, the county superintendent, or the director of the
public educational agency, or his or her designee, may resolve the
issue or issues. However, this resolution may not conflict with
state or federal law and shall be to the satisfaction of both
parties. A copy of the written resolution shall be mailed to each
party within 10 days following the mediation conference.
(g) If the mediation conference fails to resolve the issues to the
satisfaction of all parties, the party who requested the mediation
conference has the option of filing for a state-level hearing
pursuant to Section 56505. The mediator may assist the parties in
specifying any unresolved issues to be included in the hearing
request.
(h) Any mediation conference held pursuant to this section shall
be scheduled in a timely manner and shall be held at a time and place
reasonably convenient to the parties to the dispute in accordance
with paragraph (4) of subsection (b) of Section 300.506 of Title 34
of the Code of Federal Regulations.
(i) The mediation conference shall be conducted in accordance with
regulations adopted by the board.
(j) Notwithstanding any procedure set forth in this chapter, a
public educational agency and a parent may, if the party initiating
the mediation conference so chooses, meet informally to resolve any
issue or issues to the satisfaction of both parties prior to the
mediation conference.
(k) The procedures and rights contained in this section shall be
included in the notice of parent rights attached to the pupil's
assessment plan pursuant to Section 56321.
SEC. 20.
SEC. 19. Section 56500.4 of the Education Code is amended to
read:
56500.4. Pursuant to paragraphs (3) and (4) of subsection (b) of
Section 1415 of Title 20 of the United States Code, and in accordance
with Section 300.503 of Title 34 of the Code of Federal Regulations,
written prior notice shall be given by the public agency to the
parents or guardians of an individual with exceptional needs, or to
the parents or guardians of a child upon initial referral for
assessment.
SEC. 21.
SEC. 20. Section 56500.6 is added to the Education Code, to
read:
56500.6. Due process and state complaint procedures for children
enrolled in private schools by their parents pursuant to Sections
56170 to 56174.5, inclusive, shall be in accordance with Section
300.347 300.457 of Title 34 of the Code
of Federal Regulations.
SEC. 22.
SEC. 21. Section 56502 of the Education Code is amended to
read:
56502. (a) All requests for a due process hearing shall be filed
with the superintendent in accordance with paragraphs (1) and (2) of
subsection (c) of Section 300.507 of Title 34 of the Code of Federal
Regulations.
(b) The superintendent shall develop a model form to assist
parents and guardians in filing a request for due process that is in
accordance with paragraph (3) of subsection (c) of Section 300.507 of
Title 34 of the Code of Federal Regulations.
(c) The party initiating a due process hearing by filing a written
request with the superintendent shall provide the other party to the
hearing with a copy of the request at the same time as the request
is filed with the superintendent.
(d) The superintendent shall take steps to ensure that within 45
days after receipt of the written hearing request the hearing is
immediately commenced and completed, including, any mediation
requested at any point during the hearing process pursuant to
paragraph (2) of subdivision (b) of Section 56501, and a final
administrative decision is rendered, unless a continuance has been
granted pursuant to Section 56505.
(e) Notwithstanding any procedure set forth in this chapter, a
public education agency and a parent or guardian may, if the party
initiating the hearing so chooses, meet informally to resolve any
issue or issues relating to the identification, assessment, or
education and placement of the child, or the provision of a free
appropriate public education to the child, to the satisfaction of
both parties prior to the hearing. The informal meeting shall be
conducted by the district superintendent, county superintendent, or
director of the public education agency or his or her designee. Any
designee appointed pursuant to this subdivision shall have the
authority to resolve the issue or issues.
(f) Upon receipt by the superintendent of a written request by the
parent or guardian or public education agency, the superintendent or
his or her designee or designees shall immediately notify, in
writing, all parties of the request for the hearing and the scheduled
date for the hearing. The notice shall advise all parties of all
their rights relating to procedural safeguards. The superintendent
or his or her designee shall provide both parties with a list of
persons and organizations within the geographical area that can
provide free or reduced cost representation or other assistance in
preparing for the due process hearing. This list shall include a
brief description of the requirement to qualify for the services.
The superintendent or his or her designee shall have complete
discretion in determining which individuals or groups shall be
included on the list.
SEC. 23.
SEC. 22. Section 56504.5 of the Education Code is amended to
read:
56504.5. The department shall contract with a single, nonprofit
organization or entity to conduct mediation conferences and due
process hearings in accordance with Sections 300.506 and 300.508 of
Title 34 of the Code of Federal Regulations.
SEC. 24.
SEC. 23. Section 56505 of the Education Code, as amended by
Chapter 368 of the Statutes of 2003, is amended to read:
56505. (a) The state hearing shall be conducted in accordance
with regulations adopted by the board.
(b) The hearing shall be held at a time and place reasonably
convenient to the parent or guardian and the pupil.
(c) The hearing shall be conducted by a person knowledgeable in
the laws and regulations governing special education and
administrative hearings pursuant to Section 56504.5, and who has
satisfactorily completed training pursuant to this subdivision. The
superintendent shall establish standards for the training of hearing
officers, the degree of specialization of the hearing officers, and
the quality control mechanisms to be used to ensure that the hearings
are fair and the decisions are accurate. A due process hearing may
not be conducted by any individual listed in subsection (a) of
Section 300.508 of Title 34 of the Code of Federal Regulations.
Pursuant to subsection (b) of Section 300.508 of Title 34 of the Code
of Federal Regulations, a person who is qualified to conduct a
hearing is not an employee of the agency solely because he or she is
paid by the agency to serve as a hearing officer. The hearing
officer shall encourage the parties to a hearing to consider the
option of mediation as an alternative to a hearing.
(d) Pursuant to subsection (a) of Section 300.514 of Title 34 of
the Code of Federal Regulations, during the pendency of the hearing
proceedings, including the actual state level hearing, or judicial
proceeding regarding a due process hearing, the pupil shall remain in
his or her present placement, except as provided in Section 300.526
of Title 34 of the Code of Federal Regulations, unless the public
agency and the parent or guardian agree otherwise. A pupil applying
for initial admission to a public school shall, with the consent of
his or her parent or guardian, be placed in the public school program
until all proceedings have been completed. As provided in
subsection (c) of Section 300.514 of Title 34 of the Code of Federal
Regulations, if the decision of a hearing officer in a due process
hearing or a state review official in an administrative appeal agrees
with the pupil's parent or guardian that a change of placement is
appropriate, that placement shall be treated as an agreement between
the state or local agency and the parent or guardian.
(e) Any party to the hearing held pursuant to this section shall
be afforded the following rights consistent with state and federal
statutes and regulations:
(1) The right to be accompanied and advised by counsel and by
individuals with special knowledge or training relating to the
problems of individuals with exceptional needs.
(2) The right to present evidence, written arguments, and oral
arguments.
(3) The right to confront, cross-examine, and compel the
attendance of witnesses.
(4) The right to a written, or, at the option of the parents or
guardians, electronic verbatim record of the hearing.
(5) The right to written, or, at the option of the parent or
guardian, electronic findings of fact and decisions. The record of
the hearing and the findings of fact and decisions shall be provided
at no cost to parents or guardians in accordance with paragraph (2)
of subsection (c) of Section 300.509 of Title 34 of the Code of
Federal Regulations. The findings and decisions shall be made
available to the public after any personally identifiable information
has been deleted consistent with the confidentiality requirements of
subsection (c) of Section 1417 of Title 20 of the United States Code
and shall also be transmitted to the Advisory Commission on Special
Education pursuant to paragraph (4) of subsection (h) of Section 1415
of Title 20 of the United States Code.
(6) The right to be informed by the other parties to the hearing,
at least 10 days prior to the hearing, as to what those parties
believe are the issues to be decided at the hearing and their
proposed resolution of those issues. Upon the request of a parent
who is not represented by an attorney, the agency responsible for
conducting hearings shall provide a mediator to assist the parent in
identifying the issues and the proposed resolution of the issues.
(7) The right to receive from other parties to the hearing, at
least five business days prior to the hearing, a copy of all
documents and a list of all witnesses and their general area of
testimony that the parties intend to present at the hearing.
Included in the material to be disclosed to all parties at least five
business days prior to a hearing shall be all assessments completed
by that date and recommendations based on the assessments that the
parties intend to use at the hearing.
(8) The right, pursuant to paragraph (3) of subsection (a) of
Section 300.509 of Title 34 of the Code of Federal Regulations, to
prohibit the introduction of any evidence at the hearing that has not
been disclosed to that party at least five business days before the
hearing.
(f) The hearing conducted pursuant to this section shall be
completed and a written, reasoned decision mailed to all parties to
the hearing within 45 days from the receipt by the superintendent of
the request for a hearing. Either party to the hearing may request
the hearing officer to grant an extension. The extension shall be
granted upon a showing of good cause. Any extension shall extend the
time for rendering a final administrative decision for a period only
equal to the length of the extension.
(g) The hearing conducted pursuant to this section shall be the
final administrative determination and binding on all parties.
(h) In decisions relating to the placement of individuals with
exceptional needs, the person conducting the state hearing shall
consider cost, in addition to all other factors that are considered.
(i) This chapter does not preclude a party aggrieved by the
findings and decisions in a hearing under this section from
exercising the right to appeal the decision to a state court of
competent jurisdiction. An aggrieved party may also exercise the
right to bring a civil action in a district court of the United
States without regard to the amount in controversy, pursuant to
Section 300.512 of Title 34 of the Code of Federal Regulations. An
appeal shall be made within 90 days of receipt of the hearing
decision. During the pendency of any administrative or judicial
proceeding conducted pursuant to Chapter 5 (commencing with Section
56500), unless the public education agency and the parents of the
child agree otherwise, the child involved in the hearing shall remain
in his or her present educational placement. Any action brought
under this subdivision shall adhere to the provisions of subsection
(b) of Section 300.512 of Title 34 of the Code of Federal
Regulations.
(j) Any request for a due process hearing arising under
subdivision (a) of Section 56501 shall be filed within three years
from the date the party initiating the request knew or had reason to
know of the facts underlying the basis for the request.
(k) Pursuant to subsection (c) of Section 300.508 of Title 34 of
the Code of Federal Regulations, each public education agency shall
keep a list of the persons who serve as due process hearing officers,
in accordance with Section 56504.5 , and the list shall
include a statement of the qualifications of each of those persons.
The list of hearing officers shall be provided to the public
education agencies by the organization or entity under contract with
the department to conduct due process hearings.
SEC. 25.
SEC. 24. Section 56506 of the Education Code is amended to
read:
56506. In addition to the due process hearing rights enumerated
in subdivision (b) of Section 56501, the following due process rights
extend to the pupil and the parent:
(a) Written notice to the parent of his or her rights in language
easily understood by the general public and in the native language of
the parent, as defined in Section 300.19 of Title 34 of the Code of
Federal Regulations, or other mode of communication used by the
parent, unless to do so is clearly not feasible. The written notice
of rights shall include, but not be limited to, those prescribed by
Section 56341.
(b) The right to initiate a referral of a child for special
education services pursuant to Section 56303.
(c) The right to obtain an independent educational assessment
pursuant to subdivision (b) or (c) of Section 56329.
(d) The right to participate in the development of the
individualized education program and to be informed of the
availability under state and federal law of free appropriate public
education and of all available alternative programs, both public and
nonpublic.
(e) Written parental consent pursuant to Section 56321 shall be
obtained before any assessment of the pupil is conducted, unless the
public education agency prevails in a due process hearing relating to
the assessment. In accordance with subsection (c) of Section 300.505
of Title 34 of the Code of Federal Regulations, informed parental
consent need not be obtained in the case of a reassessment of the
pupil if the local educational agency can demonstrate that it has
taken reasonable measures to obtain consent and the pupil's parent
has failed to respond.
(f) Written parental consent pursuant to Section 56321 shall be
obtained before the pupil is placed in a special education program.
SEC. 26.
SEC. 25. Chapter 5.1 (commencing with Section 56515) is
added to Part 30 of the Education Code, to read:
CHAPTER 5.1. CONFIDENTIALITY OF INFORMATION ABOUT
Individuals INDIVIDUALS WITH EXCEPTIONAL NEEDS
56515. (a) In addition to the provisions of Chapter 6.5
(commencing with Section 49060) of Part 27, the confidentiality of
personally identifiable information about individuals with
exceptional needs shall be governed and protected in accordance with
the provisions of Sections 300.560 to 300.577, inclusive, of Title 34
of the Code of Federal Regulations, including, notice to parents,
access rights, records on more than one child, lists and types of
locations of information, parental consent regarding the disclosure
of personally identifiable information, fees for copies of records,
amendment of records at parent's request, opportunity for a hearing,
safeguards, destruction of information, children's privacy rights,
enforcement, and disciplinary information about an individual with
exceptional needs.
(b) Pursuant to paragraph (3) of subsection (b) of Section 300.500
of Title 34 of the Code of Federal Regulations, "personally
identifiable," as used in this part , includes all of the
following information:
(1) The name of the child, the child's parent, or other family
member.
(2) The address of the child.
(3) A personal identifier, including, but not limited to, the
child's social security account number, a pupil
number, a list of personal characteristics, or other information that
would make it possible to identify the child with reasonable
certainty.
SEC. 26. Section 56836.155 of the Education Code is amended to
read:
56836.155. (a) On or before November 2, 1998, the department, in
conjunction with the Office of the Legislative Analyst, shall do the
following:
(1) Calculate an "incidence multiplier" for each special education
local plan area using the definition, methodology, and data provided
in the final report submitted by the American Institutes for
Research pursuant to Section 67 of Chapter 854 of the Statutes of
1997.
(2) Submit the incidence multiplier for each special education
local plan area and supporting data to the Department of Finance.
(b) The Department of Finance shall review the incidence
multiplier for each special education local plan area and the
supporting data, and report any errors to the department and the
Office of the Legislative Analyst for correction.
(c) The Department of Finance shall approve the final incidence
multiplier for each special education local plan area by November 23,
1998.
(d) For the 1998-99 fiscal year and each fiscal year thereafter to
and including the 2002-03 2003-04
fiscal year, the superintendent shall perform the following
calculation to determine each special education local plan area's
adjusted entitlement for the incidence of disabilities:
(1) The incidence multiplier for the special education local plan
area shall be multiplied by the statewide target amount per unit of
average daily attendance for special education local plan areas
determined pursuant to Section 56836.11 for the fiscal year in which
the computation is made.
(2) The amount determined pursuant to paragraph (1) shall be added
to the statewide target amount per unit of average daily attendance
for special education local plan area determined pursuant to Section
56836.11 for the fiscal year in which the computation is made.
(3) Subtract the amount of funding for the special education local
plan area determined pursuant to paragraph (1) of subdivision (a) or
paragraph (1) of subdivision (b) of Section 56836.08, as appropriate
for the fiscal year in which the computation is made, or the
statewide target amount per unit of average daily attendance for
special education local plan areas determined pursuant to Section
56836.11 for the fiscal year in which the computation is made,
whichever is greater, from the amount determined pursuant to
paragraph (2). For the purposes of this paragraph for the 2001-02
and 2002-03 fiscal years, the amount, if any, received pursuant to
Section 56836.159 shall be excluded from the funding level per unit
of average daily attendance for a special education local plan area.
If the result is less than zero, than the special
education local plan area shall may
not receive an adjusted entitlement for the incidence of
disabilities.
(4) Multiply the amount determined in paragraph (3) by either the
average daily attendance reported for the special education local
plan area for the fiscal year in which the computation is made, as
adjusted pursuant to subdivision (a) of Section 56836.15, or the
average daily attendance reported for the special education local
plan area for the prior fiscal year, as adjusted pursuant to
subdivision (a) of Section 56826.15, whichever is less.
(5) If there are insufficient funds appropriated in the fiscal
year for which the computation is made for the purposes of this
section, the amount received by each special education local plan
area shall be prorated.
(e) For the 1997-98 fiscal year, the superintendent shall perform
the calculation in paragraphs (1) to (3), inclusive, of paragraph (d)
only for the purposes of making the computation in paragraph (1) of
subdivision (d) of Section 56836.08, but the special education local
plan area shall may not receive an
adjusted entitlement for the incidence of disabilities pursuant to
this section for the 1997-98 fiscal year.
(f) On or before March 1, 2003, the Office of the Legislative
Analyst, in conjunction with the Department of Finance and the
department, shall submit to the Legislature a new study of the
incidence multiplier, with recommendations as to the necessity of
continuing to adjust the funding formula contained in this chapter
for the purposes of this section to the extent that funding is
provided for this purpose. The Office of the Legislative Analyst may
contract for this study. It is the intent of the Legislature to
provide funding for this study in the Budget Act of 2002.
SEC. 27. Section 56863 of the Education Code is amended to read:
56863. The state hospitals, as part of the notification to
parents of pupils of their rights pursuant to the Individuals with
Disabilities Education Act (20 U.S.C. Sec. 1400 et seq.), the
Rehabilitation Act of 1973 (29 U.S.C. Sec. 701 et seq.), and this
part and implementing regulations, shall notify parents of the right
that their child can be considered for education programs other than
on state hospital grounds.
For the purposes of this section, the term "parent of pupil" shall
mean a parent, a legal guardian, a conservator, a person acting as a
parent of a child, or a surrogate parent appointed pursuant to
Section 300.515 of Title 34 of the Code of Federal
Regulations.
Information and records concerning state hospital patients in the
possession of the Superintendent of Public Instruction shall be
treated as confidential under Section 5328 of the Welfare and
Institutions Code and the Federal Privacy Act of 1974, Public Law
93-579.
SEC. 28. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution
for certain costs that may be incurred by a local agency or school
district because in that regard because this act
implements a federal law or regulation and results only in costs
mandated by the federal government, within the meaning of Section
17556 of the Government Code.
However, notwithstanding Section 17610 of the Government Code, if
the Commission on State Mandates determines that this act contains
other costs mandated by the state, reimbursement to local agencies
and school districts for those costs shall be made pursuant to Part 7
(commencing with Section 17500) of Division 4 of Title 2 of the
Government Code. If the statewide cost of the claim for
reimbursement does not exceed one million dollars ($1,000,000),
reimbursement shall be made from the State Mandates Claims Fund.
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