BILL NUMBER: AB 1859 CHAPTERED
BILL TEXT
CHAPTER 492
FILED WITH SECRETARY OF STATE SEPTEMBER 12, 2002
APPROVED BY GOVERNOR SEPTEMBER 12, 2002
PASSED THE ASSEMBLY AUGUST 25, 2002
PASSED THE SENATE AUGUST 22, 2002
AMENDED IN SENATE AUGUST 12, 2002
AMENDED IN SENATE JUNE 19, 2002
AMENDED IN SENATE MAY 15, 2002
INTRODUCED BY Assembly Member Papan
JANUARY 30, 2002
An act to amend Sections 48902, 48904.3, 48911, 49070, 56026,
56043, 56125, 56171, 56173, 56175, 56176, 56320, 56321, 56329, 56340,
56341.5, 56342, 56344, 56347, 56363.5, 56365, 56381, 56426.9, 56501,
56502, 56504.5, 56505, 56505.1, 56600, and 60640 of, to add Sections
48927, 56021.1, 56026.1, 56138, 56174.5, 56304, 56330, 56342.1,
56383, 56500.4, 56500.5, 56600.6, and 56601.5 to, to add Article 6
(commencing with Section 56385) to Chapter 4 of Part 30 of, to repeal
Sections 56600.5 and 56603 of, to repeal Section 48915.6 of, and to
repeal and add Sections 48915.5, 56500.2, and 56602 of, the Education
Code, and to amend Section 7579.5 of the Government Code, relating
to special education.
LEGISLATIVE COUNSEL'S DIGEST
AB 1859, Papan. Special education: pupil suspension and
expulsion.
Existing law requires school districts, county offices of
education, and special education local plan areas to comply with
state laws that conform to the federal Individuals with Disabilities
Education Act (IDEA), in order that the state may qualify for federal
funds available for the education of individuals with exceptional
needs.
This bill would revise and recast those provisions relating to the
education of a pupil with exceptional needs to conform those
provisions with the IDEA.
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.
This bill would provide that no reimbursement is required by this
act for a specified reason.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 48902 of the Education Code is amended to read:
48902. (a) The principal of a school or the principal's designee
shall, prior to the suspension or expulsion of any pupil, notify the
appropriate law enforcement authorities of the county or city in
which the school is situated, of any acts of the pupil that may
violate Section 245 of the Penal Code.
(b) The principal of a school or the principal's designee shall,
within one schoolday after suspension or expulsion of any pupil,
notify, by telephone or any other appropriate method chosen by the
school, the appropriate law enforcement authority of the county or
the school district in which the school is situated of any acts of
the pupils that may violate subdivision (c) or (d) of Section 48900.
(c) Notwithstanding subdivision (b), the principal of a school or
the principal's designee shall notify the appropriate law enforcement
authorities of the county or city in which the school is located of
any acts of a student that may involve the possession or sale of
narcotics or of a controlled substance or a violation of Section
626.9 or 626.10 of the Penal Code.
(d) A principal, the principal's designee, or any other person
reporting a known or suspected act described in subdivision (a) or
(b) is not civilly or criminally liable as a result of making any
report authorized by this article unless it can be proven that a
false report was made and that the person knew the report was false
or the report was made with reckless disregard for the truth or
falsity of the report.
(e) The willful failure to make any report required by this
section is an infraction punishable by a fine to be paid by the
principal or principal's designee who is responsible for the failure
of not more than five hundred dollars ($500).
(f) The principal of a school or the principal's designee
reporting a criminal act committed by a schoolage individual with
exceptional needs, as defined in Section 56026, shall ensure that
copies of the special education and disciplinary records of the pupil
are transmitted, as described in paragraph (9) of subsection (k) of
Section 1415 of Title 20 of the United States Code, for consideration
by the appropriate authorities to whom he or she reports the
criminal act. Any copies of the pupil's special education and
disciplinary records may be transmitted only to the extent
permissible under the federal Family Educational Rights and Privacy
Act of 1974 (20 U.S.C. Sec. 1232g et seq.).
SEC. 2. Section 48904.3 of the Education Code is amended to read:
48904.3. (a) Upon receiving notice that a school district has
withheld the grades, diploma, or transcripts of any pupil pursuant to
Section 48904, any school district to which the pupil has
transferred shall likewise withhold the grades, diploma, or
transcripts of the pupil as authorized by that section, until the
time that it receives notice, from the district that initiated the
decision to withhold, that the decision has been rescinded under the
terms of that section.
(b) Any school district that has decided to withhold a pupil's
grades, diploma, or transcripts pursuant to Section 48904 shall, upon
receiving notice that the pupil has transferred to any school
district in this state, notify the parent or guardian of the pupil in
writing that the decision to withhold will be enforced as specified
in subdivision (a).
(c) For purposes of this section and Section 48904, "school
district" is defined to include any county superintendent of schools.
(d) This section and Section 48904 shall also apply to the state
special schools, as described in subdivision (a) of Section 48927.
SEC. 3. Section 48911 of the Education Code is amended to read:
48911. (a) The principal of the school, the principal's designee,
or the superintendent of schools may suspend a pupil from the school
for any of the reasons enumerated in Section 48900, and pursuant to
Section 48900.5, for no more than five consecutive schooldays.
(b) Suspension by the principal, the principal's designee, or the
superintendent of schools shall be preceded by an informal conference
conducted by the principal or the principal's designee or the
superintendent of schools between the pupil and, whenever
practicable, the teacher, supervisor, or school employee who referred
the pupil to the principal, the principal's designee, or the
superintendent of schools. At the conference, the pupil shall be
informed of the reason for the disciplinary action and the evidence
against him or her and shall be given the opportunity to present his
or her version and evidence in his or her defense.
(c) A principal, the principal's designee, or the superintendent
of schools may suspend a pupil without affording the pupil an
opportunity for a conference only if the principal, the principal's
designee, or the superintendent of schools determines that an
emergency situation exists. "Emergency situation," as used in this
article, means a situation determined by the principal, the principal'
s designee, or the superintendent of schools to constitute a clear
and present danger to the life, safety, or health of pupils or school
personnel. If a pupil is suspended without a conference prior to
suspension, both the parent and the pupil shall be notified of the
pupil's right to a conference and the pupil's right to return to
school for the purpose of a conference. The conference shall be held
within two schooldays, unless the pupil waives this right or is
physically unable to attend for any reason, including, but not
limited to, incarceration or hospitalization. The conference shall
then be held as soon as the pupil is physically able to return to
school for the conference.
(d) At the time of suspension, a school employee shall make a
reasonable effort to contact the pupil's parent or guardian in person
or by telephone. Whenever a pupil is suspended from school, the
parent or guardian shall be notified in writing of the suspension.
(e) A school employee shall report the suspension of the pupil,
including the cause therefor, to the governing board of the school
district or to the school district superintendent in accordance with
the regulations of the governing board.
(f) The parent or guardian of any pupil shall respond without
delay to any request from school officials to attend a conference
regarding his or her child's behavior.
No penalties may be imposed on a pupil for failure of the pupil's
parent or guardian to attend a conference with school officials.
Reinstatement of the suspended pupil shall not be contingent upon
attendance by the pupil's parent or guardian at the conference.
(g) In a case where expulsion from any school or suspension for
the balance of the semester from continuation school is being
processed by the governing board, the school district superintendent
or other person designated by the superintendent in writing may
extend the suspension until the governing board has rendered a
decision in the action. However, an extension may be granted only if
the school district superintendent or the superintendent's designee
has determined, following a meeting in which the pupil and the pupil'
s parent or guardian are invited to participate, that the presence of
the pupil at the school or in an alternative school placement would
cause a danger to persons or property or a threat of disrupting the
instructional process. If the pupil or the pupil's parent or
guardian has requested a meeting to challenge the original suspension
pursuant to Section 48914, the purpose of the meeting shall be to
decide upon the extension of the suspension order under this section
and may be held in conjunction with the initial meeting on the merits
of the suspension.
(h) For the purposes of this section, a "principal's designee" is
any one or more administrators at the schoolsite specifically
designated by the principal, in writing, to assist with disciplinary
procedures.
In the event that there is not an administrator in addition to the
principal at the schoolsite, a certificated person at the schoolsite
may be specifically designated by the principal, in writing, as a
"principal's designee," to assist with disciplinary procedures. The
principal may designate only one person at a time as the principal's
primary designee for the school year.
An additional person meeting the requirements of this subdivision
may be designated by the principal, in writing, to act for the
purposes of this article when both the principal and the principal's
primary designee are absent from the schoolsite. The name of the
person, and the names of any person or persons designated as
"principal's designee," shall be on file in the principal's office.
This section is not an exception to, nor does it place any
limitation on, Section 48903.
SEC. 4. Section 48915.5 of the Education Code is repealed.
SEC. 5. Section 48915.5 is added to the Education Code, to read:
48915.5. (a) An individual with exceptional needs, as defined in
Section 56026, may be suspended or expelled from school in accordance
with subsection (k) of Section 1415 of Title 20 of the United States
Code, the discipline provisions contained in Sections 300.519
through 300.529 of Title 34 of the Code of Federal Regulations, and
other provisions of this part that do not conflict with federal law
and regulations.
(b) A free appropriate public education for individuals with
exceptional needs suspended or expelled from school shall be in
accordance with paragraph (1) of subsection (a) of Section 1412 of
Title 20 of the United States Code and subsection (d) of Section
300.121 of Title 34 of the Code of Federal Regulations.
(c) If an individual with exceptional needs is excluded from
schoolbus transportation, the pupil is entitled to be provided with
an alternative form of transportation at no cost to the pupil or
parent or guardian provided that transportation is specified in the
pupil's individualized education program.
SEC. 6. Section 48915.6 of the Education Code is repealed.
SEC. 7. Section 48927 is added to the Education Code, to read:
48927. (a) This chapter shall also apply to pupils attending the
California School for the Blind and the two California Schools for
the Deaf, which shall be referred to as the "state special schools."
(b) Because the state special schools have a governance structure
different from that of school districts, for the purposes of this
section the following definitions shall apply:
(1) "Superintendent" means the appropriate principal of the state
special school in which the pupil is enrolled, or the principal's
designee, for purposes of Sections 48900, 48900.2, 48900.3, 48900.4,
48900.5, 48900.7, 48911, and subdivisions (a) and (j) of Section
48918.
(2) "Governing board of each school district," "governing board of
any school district," or "each governing board of a school district"
means the Superintendent of Public Instruction or his or her
designee for purposes of subdivision (a) of Section 48900.1,
subdivision (b) of Section 48901, subdivision (b) of Section 48901.5,
Section 48907, Section 48910, the first paragraph of Section 48918,
and the first paragraph of Section 48918.5.
(3) "Governing board" means the Superintendent of the State
Special School in which the pupil is enrolled for purposes of Section
48912, subdivision (d) of Section 48915, Section 48915.5, Section
48916, Section 48917, subdivisions (a), (c), (d), (f), (h), (i), (j),
and (k) of Section 48918, and Sections 48921, 48922, 48923, and
48924.
(4) "Governing board" means the governing board of the district of
residence of the expelled pupil for purposes of subdivision (f) of
Section 48915 and Section 48916.1. In the case of an adult pupil
expelled from a state special school, "governing board" shall mean
the governing board of the school district that referred the pupil to
the state special school for purposes of the statute cited in this
paragraph.
(5) "Superintendent of schools or the governing board" means the
appropriate principal of the state special school in which the pupil
is enrolled, or the principal's designee, for the purposes of Section
48900.6.
(6) "School district" or "district" shall mean the state special
school in which the pupil is enrolled for purposes of Section
48900.8, subdivision (b) of Section 48903, Section 48905, Section
48909, Section 48914, paragraph (1) of subdivision (e) of Section
48916.1, subdivision (c) of Section 48918.5, Section 48919, Section
48920, and Section 48921.
(7) "County board of education" or "county board" shall mean the
Superintendent of Public Instruction or his or her designee for
purposes of Sections 48920, 48921, 48922, 48923, and 48924.
(8) "Local educational agency" includes a state special school for
purposes of Section 48902 and Section 48915.5.
(9) "A change in placement" for purposes of paragraph (2) of
subdivision (a) of Section 48915.5 means a referral by the State
Special School to the pupil's school district of residence for
placement in an appropriate interim alternative educational setting.
(10) "Individualized education program team" means the
individualized education program team of the pupil's school district
of residence with appropriate representation from the state special
school in which the pupil is enrolled for purposes of subdivision (a)
of Section 48915.5.2.
(11) "Individualized education program team" means the
individualized education program team of the state special school in
which the pupil is enrolled with appropriate representation from the
pupil's school district of residence for purposes of subdivisions
(b), (c), and (d) of Section 48915.5.3.
(c) Subdivision (b) of this section shall be deemed to provide the
same due process procedural protections to pupils in the state
special schools as afforded to pupils in the public school districts
of the state.
SEC. 8. Section 49070 of the Education Code is amended to read:
49070. Following an inspection and review of a pupil's records,
the parent or guardian of a pupil or former pupil of a school
district may challenge the content of any pupil record.
(a) The parent or guardian of a pupil may file a written request
with the superintendent of the district to correct or remove any
information recorded in the written records concerning his or her
child which the parent or guardian alleges to be any of the
following:
(1) Inaccurate.
(2) An unsubstantiated personal conclusion or inference.
(3) A conclusion or inference outside of the observer's area of
competence.
(4) Not based on the personal observation of a named person with
the time and place of the observation noted.
(5) Misleading.
(6) In violation of the privacy or other rights of the pupil.
(b) Within 30 days of receipt of a request pursuant to subdivision
(a), the superintendent or the superintendent's designee shall meet
with the parent or guardian and the certificated employee who
recorded the information in question, if any, and if the employee is
presently employed by the school district. The superintendent shall
then sustain or deny the allegations.
If the superintendent sustains any or all of the allegations, he
or she shall order the correction or the removal and destruction of
the information. However, in accordance with Section 49066, the
superintendent shall not order a pupil's grade to be changed unless
the teacher who determined the grade is, to the extent practicable,
given an opportunity to state orally, in writing, or both, the
reasons for which the grade was given and is, to the extent
practicable, included in all discussions relating to the changing of
the grade.
If the superintendent denies any or all of the allegations and
refuses to order the correction or the removal of the information,
the parent or guardian may, within 30 days of the refusal, appeal the
decision in writing to the governing board of the school district.
(c) Within 30 days of receipt of an appeal pursuant to subdivision
(b), the governing board shall, in closed session with the parent or
guardian and the certificated employee who recorded the information
in question, if any, and if the employee is presently employed by the
school district, determine whether or not to sustain or deny the
allegations.
If the governing board sustains any or all of the allegations, it
shall order the superintendent to immediately correct or remove and
destroy the information from the written records of the pupil, and so
inform the parent or guardian in writing. However, in accordance
with Section 49066, the governing board shall not order a pupil's
grade to be changed unless the teacher who determined the grade is,
to the extent practicable, given an opportunity to state orally, in
writing, or both, the reasons for which the grade was given and is,
to the extent practicable, included in all discussions relating to
the changing of the grade.
The decision of the governing board shall be final.
Records of these administrative proceedings shall be maintained in
a confidential manner and shall be destroyed one year after the
decision of the governing board, unless the parent or guardian
initiates legal proceedings relative to the disputed information
within the prescribed period.
(d) If the final decision of the governing board is unfavorable to
the parent or guardian, or if the parent or guardian accepts an
unfavorable decision by the district superintendent, the parent or
guardian shall be informed and shall have the right to submit a
written statement of his or her objections to the information. This
statement shall become a part of the pupil's school record until the
information objected to is corrected or removed.
SEC. 9. Section 56021.1 is added to the Education Code, to read:
56021.1. "Consent", as provided in subsection (b) of Section
300.500 of Title 34 of the Code of Federal Regulations, means all of
the following:
(a) The parent or guardian has been fully informed of all
information relevant to the activity for which consent is sought, in
his or her native language, or other mode of communication.
(b) The parent or guardian understands and agrees in writing to
the carrying out of the activity for which his or her consent is
sought, and the consent describes that activity and lists the
records, if any, that will be released and to whom.
(c) The parent or guardian understands that the granting of
consent is voluntary on the part of the parent or guardian and may be
revoked at any time. If a parent or guardian revokes consent, that
revocation is not retroactive, meaning that it does not negate an
action that has occurred after the consent was given and before the
consent was revoked.
SEC. 10. Section 56026 of the Education Code is amended to read:
56026. "Individuals with exceptional needs" means those persons
who satisfy all the following:
(a) Identified by an individualized education program team as a
child with a disability, as that phrase is defined in subparagraph
(A) of paragraph (3) of Section 1401 of Title 20 of the United States
Code.
(b) Their impairment, as described by subdivision (a), requires
instruction, services, or both, which cannot be provided with
modification of the regular school program.
(c) Come within one of the following age categories:
(1) Younger than three years of age and identified by the
district, the special education local plan area, or the county office
as requiring intensive special education and services, as defined by
the State Board of Education.
(2) Between the ages of three to five years, inclusive, and
identified by the district, the special education local plan area, or
the county office pursuant to Section 56441.11.
(3) Between the ages of five and 18 years, inclusive.
(4) Between the ages of 19 and 21 years, inclusive; enrolled in or
eligible for a program under this part or other special education
program prior to his or her 19th birthday; and has not yet completed
his or her prescribed course of study or who has not met proficiency
standards or has not graduated from high school with a regular high
school diploma.
(A) Any person who becomes 22 years of age during the months of
January to June, inclusive, while participating in a program under
this part may continue his or her participation in the program for
the remainder of the current fiscal year, including any extended
school year program for individuals with exceptional needs
established pursuant to regulations adopted by the State Board of
Education, pursuant to Article 1 (commencing with Section 56100) of
Chapter 2.
(B) Any person otherwise eligible to participate in a program
under this part shall not be allowed to begin a new fiscal year in a
program if he or she becomes 22 years of age in July, August, or
September of that new fiscal year. However, if a person is in a
year-round school program and is completing his or her individualized
education program in a term that extends into the new fiscal year,
then the person may complete that term.
(C) Any person who becomes 22 years of age during the months of
October, November, or December while participating in a program under
this act shall be terminated from the program on December 31 of the
current fiscal year, unless the person would otherwise complete his
or her individualized education program at the end of the current
fiscal year.
(D) No school district, special education local plan area, or
county office of education may develop an individualized education
program that extends these eligibility dates, and in no event may a
pupil be required or allowed to attend school under the provisions of
this part beyond these eligibility dates solely on the basis that
the individual has not met his or her goals or objectives.
(d) Meet eligibility criteria set forth in regulations adopted by
the board, including, but not limited to, those adopted pursuant to
Article 2.5 (commencing with Section 56333) of Chapter 4.
(e) Unless disabled within the meaning of subdivisions (a) to (d),
inclusive, pupils whose educational needs are due primarily to
limited English proficiency; a lack of instruction in reading or
mathematics; temporary physical disabilities; social maladjustment;
or environmental, cultural, or economic factors are not individuals
with exceptional needs.
SEC. 11. Section 56026.1 is added to the Education Code, to read:
56026.1. (a) As provided in clause (i) of paragraph (3) of
subsection (a) of Section 300.122 of Title 34 of the Code of Federal
Regulations, an individual with exceptional needs who graduates from
high school with a regular high school diploma is no longer eligible
for special education and related services.
(b) For purposes of this section and Section 56026, a "regular
high school diploma" means a diploma conferred on a pupil who has
completed a prescribed course of study and has met the standards of
proficiency in basic skills prescribed by the governing board of the
school district.
SEC. 12. 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.
(e) Beginning at age 14, 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.
(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. 13. Section 56125 of the Education Code is amended to read:
56125. The superintendent shall monitor the implementation of
local plans by periodically conducting onsite program and fiscal
reviews, in accordance with Sections 300.550 to 300.556, inclusive,
of Title 34 of the Code of Federal Regulations.
SEC. 14. Section 56138 is added to the Education Code, to read:
56138. The superintendent shall develop, and the board shall
adopt, performance goals and indicators for individuals with
exceptional needs that are consistent with, to the maximum extent
appropriate, the standards for all pupils in the public education
system , in accordance with the provisions of Section 300.137 of
Title 34 of the Code of Federal Regulations.
SEC. 15. Section 56171 of the Education Code is amended to read:
56171. Districts, special education local plan areas, and county
offices shall locate, identify, and assess all private school
children with disabilities, including religiously affiliated
schoolage children, who have disabilities and are in need of special
education and related services residing in the jurisdiction of the
district, special education local plan area, or county office in
accordance with Section 56301. The activities undertaken to carry
out this responsibility for private school children with disabilities
shall be comparable to activities undertaken in accordance with the
provisions of Section 300.451 of Title 34 of the Code of Federal
Regulations.
SEC. 16. Section 56173 of the Education Code is amended to read:
56173. To meet the requirements of Section 56172, each district,
special education local plan area, or county office shall spend on
providing special education and related services to private school
children with disabilities enrolled by a parent in private elementary
and secondary schools, an amount of federal state grant funds
allocated to the state under Part B of the Individuals with
Disabilities Education Act (20 U.S.C. Sec. 1400 et seq.) that is
equal to a proportionate amount of federal funds made available under
the Part B grant program for local assistance, in accordance with
Section 300.453 of Title 34 of the Code of Federal Regulations and as
provided in paragraph (2) of subsection (b) of Section 300.456 and
Sections 300.458, 300.459, 300.460, 300.461, and 300.462 of Title 34
of the Code of Federal Regulations.
SEC. 17. Section 56174.5 is added to the Education Code, to read:
56174.5. (a) Private school individuals with exceptional needs
may receive a different amount of services than individuals with
exceptional needs in public school receive pursuant to paragraph (2)
of subsection (a) of Section 300.455 of Title 34 of the Code of
Federal Regulations. No private school individuals with exceptional
needs is entitled to any amount of service the child would receive if
enrolled in a public school pursuant to paragraph (3) of subsection
(a) of Section 300.455 of Title 34 of the Code of Federal
Regulations.
(b) Decisions about the services provided to private school
individuals with exceptional needs pursuant to this article shall be
made pursuant to this section and Sections 300.454, 300.455, and
300.456 of Title 34 of the Code of Federal Regulations.
SEC. 18. Section 56175 of the Education Code is amended to read:
56175. If a parent or guardian of an individual with exceptional
needs, who previously received special education and related services
under the authority of the district, special education local plan
area, or county office, enrolls the child in a private elementary or
secondary school without the consent of or referral by the district,
special education local plan area, or county office, a court or a due
process hearing officer may require the district, special education
local plan area, or county office to reimburse the parent or guardian
for the cost of that enrollment if the court or due process hearing
officer finds that the district, special education local plan area,
or county office had not made a free appropriate public education
available to the child in a timely manner prior to that enrollment in
the private elementary or secondary school and that the private
placement is appropriate, in accordance with subsection (c) of
Section 300.403 of Title 34 of the Code of Federal Regulations.
SEC. 19. Section 56176 of the Education Code is amended to read:
56176. The cost of the reimbursement described in Section 56175
may be reduced or denied in the event of any of the following:
(a) At the most recent individualized education program meeting
that a parent or guardian attended prior to removal of the child from
the public school, the parent or guardian did not inform the
individualized education program team that they were rejecting the
placement proposed by the district, special education local plan
area, or county office to provide a free appropriate public education
to the child, including stating his or her concerns and the intent
to enroll the child in a private school at public expense.
(b) The parent or guardian did not give written notice to the
district, special education local plan area, or county office of the
information described in subdivision (a) at least 10 business days,
including any holidays that occur on a business day, prior to the
removal of the child from the public school.
(c) Prior to the parent's removal of the child from the public
school, the district, special education local plan area, or county
office informed the parent, through the notice requirements described
in paragraph (1) of subdivision (a) of Section 56500.4, of its
intent to assess the child, including a statement of the purpose of
the assessment that was appropriate and reasonable, but the parent
did not make the child available for the assessment.
(d) Upon a judicial finding of unreasonableness with respect to
actions taken by a parent.
SEC. 20. Section 56304 is added to the Education Code, to read:
56304. The parents or guardians of a pupil who has been referred
for initial assessment, or of a pupil already identified as an
individual with exceptional needs, shall be afforded an opportunity
to participate in meetings with respect to the identification,
assessment, and educational placement, pursuant to Section 56342.5
and subsections (b) and (c) of Section 56341.5, of the pupil and with
respect to the provision of a free appropriate public education, as
provided in Section 300.501 of Title 34 of the Code of Federal
Regulations.
SEC. 21. 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 primary language
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 subsection (h) 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. 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. 22. Section 56321 of the Education Code is amended to read:
56321. (a) Whenever 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) No assessment shall 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.
SEC. 23. Section 56329 of the Education Code 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.
(c) The public education agency may initiate a due process hearing
pursuant to Chapter 5 (commencing with Section 56500) to show 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 for 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.
SEC. 24. Section 56330 is added to the Education Code, to read:
56330. Each district, special education local plan area, or
county office of education shall follow the procedures in Section
300.535 of Title 34 of the Code of Federal Regulations when
interpreting assessment data for the purpose of determining if a
child is an individual with exceptional needs under Section 56026.
SEC. 25. Section 56340 of the Education Code is amended to read:
56340. Each district, special education local plan area, or
county office shall initiate and conduct meetings for the purposes of
developing, reviewing, and revising the individualized education
program of each individual with exceptional needs in accordance with
paragraph (2) of subsection (b) of Section 300.343 of Title 34 of the
Code of Federal Regulations.
SEC. 26. Section 56341.5 of the Education Code 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 may also be informed in the notice of the right 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 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 guardian with
deafness or whose native language is 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. 27. Section 56342 of the Education Code is amended to read:
56342. (a) The individualized education program team shall review
the assessment results, determine eligibility, determine the content
of the individualized education program, consider local
transportation policies and criteria developed pursuant to paragraph
(5) of subdivision (b) of Section 56195.8, and make program placement
recommendations.
(b) In determining the program placement of an individual with
exceptional needs, each district, special education local plan area,
or county office shall ensure that the placement decisions and the
child's placement are made in accordance with Sections 300.550 to
300.554, inclusive, of Title 34 of the Code of Federal Regulations.
SEC. 28. Section 56342.1 is added to the Education Code, to read:
56342.1. Before a district, special education local plan area, or
county office places an individual with exceptional needs in, or
refers an individual to, a nonpublic, nonsectarian school pursuant to
Section 56365, the district, special education local plan area, or
county office shall initiate and conduct a meeting to develop an
individualized education program in accordance with Sections 56341.1
and 56345 in accordance with paragraphs (1) and (2) of subsection (a)
of Section 300.349 of Title 34 of the Code of Federal Regulations.
SEC. 29. 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.
(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. 30. Section 56347 of the Education Code is amended to read:
56347. Each district, special education local plan area, or
county office shall, prior to the placement of the individual with
exceptional needs, ensure that the regular teacher or teachers, the
special education teacher or teachers, and other persons who provide
special education, related services, or both to the individual with
exceptional needs have access to the pupil's individualized education
program, shall be knowledgeable of the content of the individualized
education program, and shall be informed of his or her specific
responsibilities related to implementing a pupil's individualized
education program and the specific accommodations, modifications and
supports that shall be provided for the pupil in accordance with the
individualized education program, pursuant to paragraphs (2) and (3)
of subsection (b) of Section 300.342 of Title 34 of the Code of
Federal Regulations. A copy of each individualized education program
shall be maintained at each schoolsite where the pupil is enrolled.
Service providers from other agencies who provide instruction or a
related service to the individual off the schoolsite shall be
provided a copy of the individualized education program. All
individualized education programs shall be maintained in accordance
with state and federal pupil record confidentiality laws.
SEC. 31. Section 56363.5 of the Education Code is amended to read:
56363.5. School districts, county offices of education, and
special education local plan areas may seek, either directly or
through the pupil's parents or guardians, reimbursement from
insurance companies to cover the costs of related services, in
accordance with subsections (e) to (i), inclusive, of Section 300.142
of the Code of Federal Regulations.
SEC. 32. 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 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 when 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
must 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
education 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. 33. 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 district, special education local plan area, or county
office shall administer tests and other assessment materials as may
be 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 district, special education
local plan area, or county office 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; however, the
district, special education local plan area, or county office shall
not be required to conduct an assessment unless requested by the
pupil's parents.
(e) A district, special education local plan area, or county
office 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) No reassessment shall be conducted unless the written consent
of the parent is obtained prior to reassessment except pursuant to
subdivision (e) of Section 56506.
(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.
SEC. 34. Section 56383 is added to the Education Code, to read:
56383. Pursuant to subsection (b) of Section 300.349 of Title 34
of the Code of Federal Regulations, after an individual with
exceptional needs is placed in a nonpublic nonsectarian school under
Section 56366, any meetings to review and revise the pupil's
individualized education program may be conducted by the nonpublic,
nonsectarian school at the discretion of the district, special
education local plan area, or county office of Education. However,
even if a nonpublic, nonsectarian school implements a child's
individualized education program, responsibility for compliance with
this part and with the Individuals with Disabilities Education Act
(20 U.S.C. 1400 et seq.) and implementing regulations, remains with
the district, special education local plan area, or county office of
Education pursuant to subsection (c) of Section 300.349 of Title 34
of the Code of Federal Regulations.
SEC. 35. Article 6 (commencing with Section 56385) is added to
Chapter 4 of Part 30 of the Education Code, to read:
Article 6. Participation in Statewide and Districtwide
Assessment Programs
56385. (a) As provided in Section 300.138 of Title 34 of the Code
of Federal Regulations, individuals with exceptional needs shall be
included in general statewide and districtwide assessment programs,
with appropriate accommodations, when necessary.
(b) The superintendent shall develop guidelines for the
participation of individuals with exceptional needs in alternative
assessments for those pupils who cannot participate in statewide and
districtwide assessment programs.
(c) The department shall make available to the public reports
regarding the assessment of pupils that have been identified as
individuals with exceptional needs with the same frequency and in the
same detail as it reports on the assessment of pupils that have not
been so identified, in accordance with Section 300.139 of Title 34 of
the Code of Federal Regulations.
SEC. 36. Section 56426.9 of the Education Code is amended to read:
56426.9. (a) Pursuant to paragraph (8) of subsection (a) of
Section 1437 of Title 20 of the United States Code, each district,
special education local plan area, or county office shall ensure that
each child participating in early childhood special education
services pursuant to this chapter, and who will participate in
preschool programs pursuant to Chapter 4.45 (commencing with Section
56440) of this part, experiences a smooth and effective transition to
those preschool programs.
(b) Pursuant to subsection (c) of Section 300.121 of Title 34 of
the Code of Federal Regulations, each district, special education
local plan area, or county office shall, by the third birthday of a
child described in subdivision (a) of this section, ensure that an
individualized education program or an individualized family service
plan has been developed and is being implemented for the child
consistent with a free appropriate public education for children
beginning at three years of age.
(c) In accordance with paragraph (8) of subsection (a) of Section
1437 of Title 20 of the United States Code, each district, special
education local plan area, or county office shall participate in
transition planning conferences arranged by the designated lead
agency.
(d) Any child who becomes three years of age while participating
in early childhood special education services under this chapter may
continue until June 30 of the current program year, if the
individualized education program team determines that the preschooler
is eligible pursuant to Section 56441.11, develops an individualized
education program, and determines that the early childhood special
education services remain appropriate. No later than June 30 of that
year, the individualized education program team shall meet to review
the preschooler's progress and revise the individualized education
program accordingly. The individualized education program team
meeting shall be conducted by the local education agency responsible
for the provision of preschool special education services.
Representatives of the early childhood special education program
shall be invited to that meeting. If a child's third 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, pursuant to paragraph (2) of subsection
(c) of Section 300.121 of Title 34 of the Code of Federal
Regulations.
SEC. 37. Section 56500.2 of the Education Code is repealed.
SEC. 38. Section 56500.2 is added to the Education Code, to read:
56500.2. A complaint filed with the department regarding any
alleged violations of the Individuals with Disabilities Education Act
(20 U.S.C. Sec. 1400 et seq.) or provision of this part shall be
investigated in an expeditious and effective manner pursuant to
Chapter 5.1 (commencing with Section 4600) of Title 5 of the
California Code of Regulations and Sections 300.660 to 300.662,
inclusive, of Title 34 of the Code of Federal Regulations.
SEC. 39. Section 56500.4 is added to the Education Code, 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, as the case may be.
SEC. 40. Section 56500.5 is added to the Education Code, to read:
56500.5. As provided in clause (iii) of paragraph (3) of
subsection (a) of Section 300.122 of Title 34 of the Code of Federal
Regulations, parents or guardians of an individual with exceptional
needs shall be given reasonable written prior notice, in accordance
with Section 56500.4, that their child will be graduating from high
school with a regular high school diploma because graduation from
high school with a regular diploma constitutes a change in placement.
SEC. 41. Section 56501 of the Education Code is amended to read:
56501. (a) The due process hearing procedures prescribed by this
chapter extend to the parent or guardian, as defined in Section
56028, a pupil who has been emancipated, and a pupil who is a ward or
dependent of the court or for whom no parent or guardian can be
identified or located when the hearing officer determines that either
the local educational agency has failed to appoint a surrogate
parent as required by Section 7579.5 of the Government Code or the
surrogate parent appointed by the local educational agency does not
meet the criteria set forth in subdivision (f) of Section 7579.5 of
the Government Code, and the public education agency involved in any
decisions regarding a pupil. The appointment of a surrogate parent
after a hearing has been requested by the pupil shall not be cause
for dismissal of the hearing request. The parent or guardian and the
public education agency involved may initiate the due process
hearing procedures prescribed by this chapter under any of the
following circumstances:
(1) There is a proposal to initiate or change the identification,
assessment, or educational placement of the child or the provision of
a free, appropriate public education to the child.
(2) There is a refusal to initiate or change the identification,
assessment, or educational placement of the child or the provision of
a free, appropriate public education to the child.
(3) The parent or guardian refuses to consent to an assessment of
the child.
(4) There is a disagreement between a parent or guardian and a
district, special education local plan area, or county office
regarding the availability of a program appropriate for the child,
including the question of financial responsibility, as specified in
subsection (b) of Section 300.403 of Title 34 of the Code of Federal
Regulations.
(b) The due process hearing rights prescribed by this chapter
include, but are not limited to, all the following:
(1) The right to a mediation conference pursuant to Section
56500.3.
(2) The right to request a mediation conference at any point
during the hearing process. The mediation process is not to be used
to deny or delay a parent's or guardian's right to a due process
hearing, or to deny any other rights afforded under this part, or
under the Individuals with Disabilities Education Act (20 U.S.C. Sec.
1400 et seq.). Notwithstanding subdivision (a) of Section 56500.3,
attorneys and advocates are permitted to participate in mediation
conferences scheduled after the filing of a request for due process
hearing.
(3) The right to examine pupil records pursuant to Section 56504.
This provision shall not be construed to abrogate the rights
prescribed by Chapter 6.5 (commencing with Section 49060) of Part 27.
(4) The right to a fair and impartial administrative hearing at
the state level, before a person knowledgeable in the laws governing
special education and administrative hearings, under contract with
the department, pursuant to Section 56505.
(c) In addition to the rights prescribed by subdivision (b), the
parent or guardian has the following rights:
(1) The right to have the pupil who is the subject of the state
hearing present at the hearing.
(2) The right to open the state hearing to the public.
SEC. 42. 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.
(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. 43. 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 Section 300.506 of Title 34 of
the Code of Federal Regulations.
SEC. 44. Section 56505 of the Education Code 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 governing special education and administrative hearings
pursuant to Section 56504.5. 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 must 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) Nothing in this chapter shall 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 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.
SEC. 45. Section 56505.1 of the Education Code is amended to read:
56505.1. The hearing officer may do any of the following during
the hearing:
(a) Question a witness on the record prior to any of the parties
doing so.
(b) With the consent of both parties to the hearing, request that
conflicting experts discuss an issue or issues with each other while
on the record.
(c) Visit the proposed placement site or sites when the physical
attributes of the site or sites are at issue.
(d) Call a witness to testify at the hearing if all parties to the
hearing consent to the witness giving testimony or the hearing is
continued for at least five days after the witness is identified and
before the witness testifies.
(e) Order that an impartial assessment of the pupil be conducted
for purposes of the hearing and continue the hearing until the
assessment has been completed. The cost of any assessment ordered
under this subdivision shall be included in the contract between the
department and the organization or entity conducting the hearing.
(f) Bar introduction of any documents or the testimony of any
witnesses not disclosed to the hearing officer at least five business
days prior to the hearing and bar introduction of any documents or
the testimony of any witnesses at the hearing without the consent of
the other party not disclosed to the parties at least five business
days prior to the hearing pursuant to paragraph (7) of subdivision
(e) of Section 56505.
(g) In decisions relating to the provision of related services by
other public agencies, the hearing officer may call as witnesses
independent medical specialists qualified to present evidence in the
area of the pupil's medical disability. The cost for any witness
called to testify under this subdivision shall be included in the
contract between the department and the organization or entity
conducting the hearing.
SEC. 46. Section 56600 of the Education Code is amended to read:
56600. It is the intent of the Legislature to provide for ongoing
comprehensive evaluation of special education programs authorized by
this part and to support the purposes of the Individuals with
Disabilities Education Act (20 U.S.C. Sec. 1400 et seq.), pursuant to
subsection (d) of Section 1400 of Title 20 of the United States
Code.
SEC. 47. Section 56600.5 of the Education Code is repealed.
SEC. 48. Section 56600.6 is added to the Education Code, to read:
56600.6. The superintendent shall ensure that pupil and program
performance results are monitored at the state and local levels in
order to comply with paragraph (16) of subsection (a) of Section 1412
of Title 20 of the United States Code by evaluating pupil
performance against key performance indicators. As necessary, other
data may be collected to support the state's participation in
national studies and evaluations described in subsection (a) of
Section 1474 of Title 20 of the United States Code.
SEC. 49. Section 56601.5 is added to the Education Code, to read:
56601.5. Pursuant to paragraph (6) of subsection (a) of Section
1413 of Title 20 of the United States Code and Sections 300.138,
300.139, and 300.240 of Title 34 of the Code of Federal Regulations,
each special education local plan area shall annually report to the
superintendent the number of pupils receiving special education
services participating in the regular school and district assessments
and the number participating in an alternate assessment process.
SEC. 50. Section 56602 of the Education Code is repealed.
SEC. 51. Section 56602 is added to the Education Code, to read:
56602. Pursuant to subparagraph (C) of paragraph (16) of
subsection (a) of Section 1412 of Title 20 of the United States Code
and Section 80.40 of Title 34 of the Code of Federal Regulations, the
superintendent shall submit to the board, the Legislature, and the
Governor, a biennial performance report of the special education
programs implemented under this part.
SEC. 52. Section 56603 of the Education Code is repealed.
SEC. 53. Section 60640 of the Education Code is amended to read:
60640. (a) There is hereby established the Standardized Testing
and Reporting Program, to be known as the STAR Program.
(b) Commencing in the 1997-98 fiscal year and each fiscal year
thereafter, and from the funds available for that purpose, each
school district, charter school, and county office of education shall
administer to each of its pupils in grades 2 to 11, inclusive, the
achievement test designated by the State Board of Education pursuant
to Section 60642 and the standards-based achievement test provided
for in Section 60642.5. The State Board of Education shall establish
a testing period to provide that all schools administer these tests
to pupils at approximately the same time during the instructional
year, except as necessary to ensure test security and to meet the
final filing date.
(c) The publisher and the school district shall provide two makeup
days for the testing of previously absent pupils within the testing
period established by the State Board of Education in subdivision
(b).
(d) The governing board of the school district may administer
achievement tests in kindergarten and grade 1 or 12, or both, as it
deems appropriate.
(e) Pursuant to paragraph (17) of subsection (a) of Section 1412
of Title 20 of the United States Code, individuals with exceptional
needs, as defined in Section 56026, shall be included in the testing
requirement of subdivision (b) with appropriate accommodations in
administration, where necessary, and those individuals with
exceptional needs who are unable to participate in the testing, even
with accommodations, will be given an alternate assessment.
(f) At the school district's option, pupils of limited English
proficiency who are enrolled in any of grades 2 to 11, inclusive, may
take a second achievement test in their primary language. Primary
language tests administered pursuant to this subdivision and
subdivision (g) shall be subject to the requirements of subdivision
(a) of Section 60641. These primary language tests shall produce
individual pupil scores that are valid and reliable. Notwithstanding
any other provision of law, the State Board of Education shall
designate for use, as part of this program, a single primary language
test in each language for which a test is available for grades 2 to
11, inclusive, no later than November 14, 1998, pursuant to the
process used for designation of the assessment chosen in the 1997-98
fiscal year, as specified in Sections 60642 and 60643, as applicable.
(g) Pupils of limited English proficiency who are enrolled in any
of grades 2 to 11, inclusive, shall be required to take a test in
their primary language if a test is available, if fewer than 12
months have elapsed after their initial enrollment in any public
school in the state.
(h) (1) The Superintendent of Public Instruction shall apportion
funds to school districts to enable school districts to meet the
requirements of subdivisions (b), (f), and (g).
(2) The State Board of Education shall annually establish the
amount of funding to be apportioned to school districts for each test
administered and shall annually establish the amount that each
publisher shall be paid for each test administered under the
agreements required pursuant to Section 60643. The amounts to be
paid to the publishers shall be determined by considering the cost
estimates submitted by each publisher each September and the amount
included in the Budget Act and by making allowance for the estimated
costs to school districts for compliance with the requirements of
subdivisions (b), (f), and (g).
(3) An adjustment to the amount of funding to be apportioned per
test may not be valid without the approval of the Director of
Finance. A request for approval of an adjustment to the amount of
funding to be apportioned per test shall be submitted in writing to
the Director of Finance and the chairpersons of the fiscal committees
of both houses of the Legislature with accompanying material
justifying the proposed adjustment. The Director of Finance is
authorized to approve only those adjustments related to activities
required by statute. The Director of Finance shall approve or
disapprove the amount within 30 days of receipt of the request and
shall notify the chairpersons of the fiscal committees of both houses
of the Legislature of the decision.
(i) For the purposes of making the computations required by
Section 8 of Article XVI of the California Constitution, the
appropriation for the apportionments made pursuant to paragraph (1)
of subdivision (h), and the payments made to the publishers under the
contracts required pursuant to Section 60643 or subparagraph (C) of
paragraph (1) of subdivision (a) of Section 60605 between the State
Department of Education and the contractor, shall be deemed to be
"General Fund revenues appropriated for school districts," as defined
in subdivision (c) of Section 41202 of the Education Code, for the
applicable fiscal year, and included within the "total allocations to
school districts and community college districts from General Fund
proceeds of taxes appropriated pursuant to Article XIII B," as
defined in subdivision (e) of Section 41202 of the Education Code,
for that fiscal year.
(j) As a condition to receiving an apportionment pursuant to
subdivision (h), a school district shall report to the superintendent
all of the following:
(1) The number of pupils enrolled in the school district in grades
2 to 11, inclusive.
(2) The number of pupils to whom an achievement test was
administered in grades 2 to 11, inclusive, in the school district.
(3) The number of pupils in paragraph (1) who were exempted from
the test at the request of their parents or guardians.
SEC. 54. Section 7579.5 of the Government Code is amended to read:
7579.5. (a) A surrogate parent shall not be appointed for a child
who is a dependent or ward of the court unless the court
specifically limits the right of the parent or guardian to make
educational decisions for the child. A surrogate parent shall not be
appointed for a child who has reached the age of majority unless the
child has been declared incompetent by a court of law.
(b) A local educational agency shall appoint a surrogate parent
for a child under one or more of the following circumstances:
(1) The child is adjudicated a dependent or ward of the court
pursuant to Section 300, 601, or 602 of the Welfare and Institutions
Code upon referral of the child to a local educational agency for
special education and related services, or in cases where the child
already has a valid individualized education program.
(2) No parent for the child can be identified.
(3) The local educational agency, after reasonable efforts, cannot
discover the location of a parent.
(c) When appointing a surrogate parent, the local educational
agency shall, as a first preference, select a relative caretaker,
foster parent, or court-appointed special advocate, if any of these
individuals exist and is willing and able to serve. If none of these
individuals is willing or able to act as a surrogate parent, the
local educational agency shall select the surrogate parent of its
choice. If the child is moved from the home of the relative
caretaker or foster parent who has been appointed as a surrogate
parent, the local educational agency shall appoint another surrogate
parent. The local educational agency shall ensure that a person
selected as a surrogate parent has knowledge and skills that ensure
adequate representation of the child as specified in clause (iii) of
paragraph (2) of subsection (c) of Section 300.515 of Title 34 of the
Code of Federal Regulations.
(d) For the purposes of this section, the surrogate parent shall
serve as the child's parent and shall have the rights relative to the
child's education that a parent has under Title 20 (commencing with
Section 1400) of the United States Code and pursuant to Part 300 of
Title 34 (commencing with Section 300.1) of the Code of Federal
Regulations. The surrogate parent may represent the child in matters
relating to identification, assessment, instructional planning and
development, educational placement, reviewing and revising the
individualized education program, and in all other matters relating
to the provision of a free appropriate public education of the child.
Notwithstanding any other provision of law, this representation
shall include the provision of written consent to the individualized
education program including nonemergency medical services, mental
health treatment services, and occupational or physical therapy
services pursuant to this chapter. The surrogate parent may sign any
consent relating to individualized education program purposes.
(e) As far as practical, a surrogate parent should be culturally
sensitive to his or her assigned child.
(f) Individuals who would have a conflict of interest in
representing the child, as specified under federal regulations, shall
not be appointed as a surrogate parent. "An individual who would
have a conflict of interest," for purposes of this section, means a
person having any interests that might restrict or bias his or her
ability to advocate for all of the services required to ensure a free
appropriate public education for an individual with exceptional
needs, as defined in Section 56026 of the Education Code.
(g) Except for individuals who have a conflict of interest in
representing the child, and notwithstanding any other law or
regulation, individuals who may serve as surrogate parents include,
but are not limited to, foster care providers, retired teachers,
social workers, and probation officers who are not employees of a
public agency involved in the education or care of the child. The
surrogate parent shall not be an employee of a public or private
agency that is involved in the education or care of the child in
accordance with paragraph (3) of subsection (c) and subsection (d) of
Section 300.515 of Title 34 of the Code of Federal Regulations. If
a conflict of interest arises subsequent to the appointment of the
surrogate parent, the local educational agency shall terminate the
appointment and appoint another surrogate parent.
(h) The surrogate parent and the local educational agency
appointing the surrogate parent shall be held harmless by the State
of California when acting in their official capacity except for acts
or omissions that are found to have been wanton, reckless, or
malicious.
(i) Nothing in this section shall be interpreted to prevent a
parent or guardian of an individual with exceptional needs from
designating another adult individual to represent the interests of
the child for educational and related services.
(j) If funding for implementation of this section is provided, it
may only be provided from Item 6110-161-890 of the annual Budget Act.
SEC. 55. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution 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.