BILL NUMBER: AB 1662 CHAPTERED
BILL TEXT
CHAPTER 653
FILED WITH SECRETARY OF STATE OCTOBER 7, 2005
APPROVED BY GOVERNOR OCTOBER 7, 2005
PASSED THE SENATE SEPTEMBER 8, 2005
PASSED THE ASSEMBLY SEPTEMBER 8, 2005
AMENDED IN SENATE SEPTEMBER 8, 2005
AMENDED IN SENATE SEPTEMBER 2, 2005
AMENDED IN SENATE JULY 12, 2005
AMENDED IN SENATE JUNE 22, 2005
AMENDED IN ASSEMBLY MAY 27, 2005
AMENDED IN ASSEMBLY MAY 11, 2005
AMENDED IN ASSEMBLY MAY 2, 2005
INTRODUCED BY Assembly Members Lieber and Daucher
FEBRUARY 22, 2005
An act to amend Sections 33590, 56001, 56028, 56028.5, 56043,
56138, 56171, 56172, 56173, 56175, 56176, 56177, 56205, 56301, 56304,
56320, 56321, 56325, 56329, 56341, 56341.1, 56341.5, 56344, 56345.1,
56363, 56380, 56381, 56385, 56500.2, 56500.3, 56500.4, 56502, 56506,
56507, 56515, 56838, and 56841 of, to amend, repeal, and add Section
56505 of, to add Sections 56020.5, 56033.5, 56040.5, 56302.1,
56321.1, 56380.1, 56501.5, 56509, and 56844 to, to add Article 3.9
(commencing with Section 56058) to Chapter 1 of Part 30 of, to repeal
Sections 56435 and 56449 of, and to repeal and add Sections 56337,
56345, 56346, 56837, and 56842 of, the Education Code, and to amend
Section 7579.5 of, and to add Section 7579.6 to, the Government Code,
relating to special education, and declaring the urgency thereof, to
take effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
AB 1662, Lieber Special education: conformance to federal law.
(1) Existing law establishes a right of individuals with
exceptional needs to receive free appropriate public education and
ensures the right to special instruction and related services needed
to meet their unique needs, in conformity with federal law.
This bill would make various revisions generally conforming state
law to federal requirements relating to, among others, pupil
identification, assessment, and eligibility; individualized education
program development, including notice, representation, and hearing
procedures and requirements; and pupil data confidentiality, and
would make other technical, nonsubstantive changes. To the extent
that these revisions would impose new duties on local educational
agencies, the bill would impose a state-mandated local program.
(2) 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.
(3) This bill would declare that it is to take effect immediately
as an urgency statute.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 33590 of the Education Code is amended to read:
33590. (a) There is in the state government the Advisory
Commission on Special Education consisting of the following 17
members:
(1) A Member of the Assembly appointed by the Speaker of the
Assembly.
(2) A Member of the Senate appointed by the Senate Committee on
Rules.
(3) Three public members appointed by the Speaker of the Assembly,
two of whom shall be individuals with a disability or parents of
pupils in either a public or private school who have received or are
currently receiving special education services due to a disabling
condition.
(4) Three public members appointed by the Senate Committee on
Rules, two of whom shall be individuals with a disability or parents
of pupils in either a public or private school who have received or
are currently receiving special education services due to a disabling
condition.
(5) Four public members appointed by the Governor, two of whom
shall be parents of pupils in either a public or private school who
have received or are currently receiving special education services
due to a disabling condition.
(6) Five public members appointed by the State Board of Education,
upon the recommendation of the Superintendent or the members of the
State Board of Education, three of whom shall be parents of pupils in
either a public or private school who have received or are currently
receiving special education services due to a disabling condition,
and one of whom shall be a representative of the charter school
community.
(b) (1) Each member shall be selected to ensure that the
commission is representative of the state population and composed of
individuals involved in, or concerned with, the education of children
with disabilities, including parents of children with disabilities,
ages birth to 26 years, inclusive; individuals with disabilities;
teachers; representatives of higher education that prepare special
education and related services personnel; state and local education
officials, including, but not limited to, officials who carry out
activities under Part B (commencing with Section 11431, et seq.) of
Subchapter VI of Title 42 of the United States Code; administrators
of programs for children with disabilities; representatives of other
state agencies involved in the financing or delivery of related
services to children with disabilities; representatives of private
schools and public charter schools; at least one representative of a
vocational community or business organization concerned with the
provision of transition services to children with disabilities; and a
representative from the State Department of Social Services
responsible for foster care; and representatives from the state
juvenile and adult corrections agencies.
(2) Each member shall be knowledgeable about the wide variety of
disabling conditions that require special programs in order to
achieve the goal of providing an appropriate education to all
eligible pupils.
(3) A majority of the members of the commission shall be
individuals with disabilities, or parents of children with
disabilities who are ages birth to 26 years, inclusive.
(c) The commission shall select one of its members to be
chairperson of the commission. In addition to other duties, the
chairperson shall notify the appointing bodies when a vacancy occurs
on the commission and of the type of representative listed in
subdivision (b) who is required to be appointed to fill the vacancy.
(d) The term of each public member is four years.
(e) A public member may not serve more than two terms.
SEC. 2. Section 56001 of the Education Code is amended to read:
56001. It is the intent of the Legislature that special education
programs provide all of the following:
(a) Each individual with exceptional needs is assured an education
appropriate to his or her needs in publicly supported programs
through completion of his or her prescribed course of study or until
the time that he or she has met proficiency standards prescribed.
(b) Early educational opportunities shall be available to all
children between the ages of three and five years who require special
education and services.
(c) Early educational opportunities shall be made available to
children younger than three years of age pursuant to Chapter 4.4
(commencing with Section 56425), appropriate sections of this part,
and the California Early Intervention Services Act (Title 14
(commencing with Section 95000) of the Government Code).
(d) Any child younger than three years of age, potentially
eligible for special education, shall be afforded the protections
provided pursuant to the California Early Intervention Services Act
(Title 14 (commencing with Section 95000) of the Government Code) and
Section 1439 of Title 20 of the United States Code and implementing
regulations.
(e) Each individual with exceptional needs shall have his or her
educational goals, objectives, and special education and related
services specified in a written individualized education program.
(f) Education programs are provided under an approved local plan
for special education that sets forth the elements of the programs in
accordance with this part. This plan for special education shall be
developed cooperatively with input from the community advisory
committee and appropriate representation from special and regular
teachers and administrators selected by the groups they represent to
ensure effective participation and communication.
(g) Individuals with exceptional needs are offered special
assistance programs that promote maximum interaction with the general
school population in a manner that is appropriate to the needs of
both, taking into consideration, for hard-of-hearing or deaf
children, the individual's needs for a sufficient number of age and
language mode peers and for special education teachers who are
proficient in the individual's primary language mode.
(h) Pupils are transferred out of special education programs when
special education services are no longer needed.
(i) The unnecessary use of labels is avoided in providing special
education and related services for individuals with exceptional
needs.
(j) Procedures and materials for assessment and placement of
individuals with exceptional needs shall be selected and administered
so as not to be racially, culturally, or sexually discriminatory. No
single assessment instrument shall be the sole criterion for
determining the placement of a pupil. The procedures and materials
for assessment and placement shall be in the individual's mode of
communication. Procedures and materials for use with pupils of
limited-English proficiency, as defined in subdivision (m) of Section
52163 and in paragraph (18) of Section 1401 of Title 20 of the
United States Code, shall be in the individual's native language, as
defined in paragraph (20) of Section 1401 of Title 20 of the United
States Code. All assessment materials and procedures shall be
selected and administered pursuant to Section 56320.
(k) Educational programs are coordinated with other public and
private agencies, including preschools, child development programs,
nonpublic nonsectarian schools, regional occupational centers and
programs, and postsecondary and adult programs for individuals with
exceptional needs.
(l) Psychological and health services for individuals with
exceptional needs shall be available to each schoolsite.
(m) Continuous evaluation of the effectiveness of these special
education programs by the local educational agencies shall be made to
ensure the highest quality educational offerings.
(n) Appropriate qualified staff are employed, consistent with
credentialing requirements, to fulfill the responsibilities of the
local plan and positive efforts are made to employ qualified disabled
individuals.
(o) Regular and special education personnel are adequately
prepared to provide educational instruction and services to
individuals with exceptional needs.
SEC. 2.5. Section 56020.5 is added to the Education Code, to read:
56020.5. "Assistive technology device," as provided in paragraph
(1) of Section 1401 of Title 20 of the United States Code, means any
item, piece of equipment, or product system, whether acquired
commercially without the need for modification, modified, or
customized, that is used to increase, maintain, or improve functional
capabilities of an individual with exceptional needs. The term does
not include a medical device that is surgically implanted, or the
replacement of that device.
SEC. 3. Section 56028 of the Education Code is amended to read:
56028. (a) "Parent," includes any of the following:
(1) A person having legal custody of a child.
(2) Any adult pupil for whom no guardian or conservator has been
appointed.
(3) A person acting in the place of a natural or adoptive parent,
including a grandparent, stepparent, or other relative with whom the
child lives. "Parent" also includes a parent surrogate.
(4) A foster parent if the authority of a parent to make
educational decisions on the child's behalf has been specifically
limited by court order in accordance with subsection (b) of Section
300.20 of Title 34 of the Code of Federal Regulations.
(b) "Parent" does not include the state or any political
subdivision of government.
SEC. 4. Section 56028.5 of the Education Code is amended to read:
56028.5. "Public agency" means a school district, county office
of education, special education local plan area, charter school, or
any other public agency under the auspices of the state or any
political subdivisions of the state providing special education or
related services to individuals with exceptional needs. For purposes
of this part, "public agency," means all of the public agencies
listed in Section 300.22 of Title 34 of the Code of Federal
Regulations.
SEC. 4.5. Section 56033.5 is added to the Education Code, to read:
56033.5. "Supplementary aids and services," as provided in
paragraph (33) of Section 1401 of Title 20 of the United States Code,
means aids, services, and other supports that are provided in
regular education classes or other education-related settings to
enable individuals with exceptional needs to be educated with
nondisabled children to the maximum extent appropriate in accordance
with paragraph (5) of subsection (a) of Section 1412 of Title 20 of
the United States Code.
SEC. 5. Section 56040.5 is added to the Education Code, to read:
56040.5. (a) State and local educational agency personnel are
prohibited, pursuant to paragraph (25) of subsection (a) of Section
1412 of Title 20 of the United States Code, from requiring an
individual with exceptional needs to obtain a prescription for a
medication that is a substance covered by the Controlled Substances
Act (21 U.S.C. Sec. 801 et seq.) as a condition of attending school,
receiving an assessment under subsection (a) or (c) of Section 1414
of Title 20 of the United States Code, or receiving services under
this part.
(b) Subdivision (a) does not create a federal prohibition against
teachers and other school personnel consulting or sharing
classroom-based observations with parents or guardians regarding a
pupil's academic and functional performance, his or her behavior in
the class or school, or the need for assessment for special education
and related services under paragraph (3) of subsection (a) of
Section 1412 of Title 20 of the United States Code.
SEC. 5.5. 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) Once a child has been referred for an initial assessment to
determine whether the child is an individual with exceptional needs
and to determine the educational needs of the child, these
determinations shall be made, and an individualized education program
team meeting shall occur, within 60 days of receiving parental
consent for the assessment, pursuant to subdivision (a) of Section
56302.1, except as specified in subdivision (b) of that section and
pursuant to Section 56344.
(d) The individualized education program team shall review the
pupil's individualized education program periodically, but not less
frequently than annually, pursuant to subdivision (d) of Section
56341.1.
(e) 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. In the case
of an individual with exceptional needs who is 16 years of age or
younger, if appropriate, the meeting notice shall indicate that a
purpose of the meeting will be the consideration of the postsecondary
goals and transition services for the individual with exceptional
needs, and the meeting notice described in this subdivision shall
indicate that the individual with exceptional needs is invited to
attend, pursuant to subdivision (e) of Section 56341.5.
(f) (1) An individualized education program required as a result
of an assessment of a pupil shall be developed within a total time
not to exceed 60 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.
(2) A meeting to develop an initial individualized education
program for the pupil shall be conducted within 30 days of a
determination that the child needs special education and related
services pursuant to paragraph (2) of subsection (b) of Section
300.343 of Title 34 of the Code of Federal Regulations and in
accordance with Section 56344.
(g) (1) Beginning not later than the first individualized
education program to be in effect when the pupil is 16 years of age,
and updated annually thereafter, the individualized education program
shall include appropriate measurable postsecondary goals and
transition services needed to assist the pupil in reaching those
goals, pursuant to paragraph (8) of subdivision (a) of Section 56345.
(2) The individualized education program for pupils in grades 7 to
12, inclusive, shall include any alternative means and modes
necessary for the pupil to complete the district's prescribed course
of study and to meet or exceed proficiency standards for graduation,
pursuant to paragraph (1) of subdivision (b) of Section 56345.
(3) Beginning not later than one year before the pupil reaches the
age of 18 years, the individualized education program shall contain
a statement that the pupil has been informed of the pupil's rights
under this part, if any, that will transfer to the pupil upon
reaching the age of 18, pursuant to subdivision (g) of Section 56345.
(h) 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 Section 56345.1
and subclause (VIII) of clause (i) of subparagraph (A) of paragraph
(1) of subsection (d) of Section 1414 of Title 20 of the United
States Code.
(i) 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.
(j) 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.
The local educational agency shall maintain procedures to ensure that
the individualized education program team reviews the pupil's
individualized education program periodically, but not less
frequently than annually, to determine whether the annual goals for
the pupil are being achieved, and revises the individualized
education program as appropriate to address, among other matters, the
provisions specified in subdivision (d) of Section 56341.1, pursuant
to subdivision (a) of Section 56380.
(k) A reassessment of a pupil shall occur not more frequently than
once a year, unless the parent and the local educational agency
agree otherwise in writing, and shall occur at least once every three
years, unless the parent and the local educational agency agree, in
writing, that a reassessment is unnecessary, pursuant to Section
56381, and in accordance with paragraph (2) of subsection (a) of
Section 1414 of Title 20 of the United States Code.
(l) 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 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 request, pursuant to Section 56343.5.
(m) If an individual with exceptional needs transfers from
district to district within the state, the following are applicable
pursuant to Section 56325:
(1) If the child has an individualized education program and
transfers into a district from a district not operating programs
under the same local plan in which he or she was last enrolled in a
special education program within the same academic year, the local
educational agency shall provide the pupil with a free appropriate
public education, including services comparable to those described in
the previously approved individualized education program, in
consultation with the parents, for a period not to exceed 30 days, by
which time the local educational agency shall adopt the previously
approved individualized education program or shall develop, adopt,
and implement a new individualized education program that is
consistent with federal and state law, pursuant to paragraph (1) of
subdivision (a) of Section 56325.
(2) If the child has an individualized education program and
transfers into a district from a district operating programs under
the same special education local plan area of the district in which
he or she was last enrolled in a special education program within the
same academic year, the new district shall continue, without delay,
to provide services comparable to those described in the existing
approved individualized education program, unless the parent and the
local educational agency agree to develop, adopt, and implement a new
individualized education program that is consistent with state and
federal law, pursuant to paragraph (2) of subdivision (a) of Section
56325.
(3) If the child has an individualized education program and
transfers from an educational agency located outside the state to a
district within the state within the same academic year, the local
educational agency shall provide the pupil with a free appropriate
public education, including services comparable to those described in
the previously approved individualized education program, in
consultation with the parents, until the local educational agency
conducts an assessment as specified in paragraph (3) of subdivision
(a) of Section 56325.
(4) In order to facilitate the transition for an individual with
exceptional needs described in paragraphs (1) to (3), inclusive, the
new school in which the pupil enrolls shall take reasonable steps to
promptly obtain the pupil's records, as specified, pursuant to
subdivision (b) of Section 56325.
(n) 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.
(o) 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, to the new educational agency within five working days,
pursuant to subdivision (a) of Section 3024 of Title 5 of the
California Code of Regulations.
(p) 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.
(q) 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.
(r) 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, except that this timeline
shall not apply to a parent if the parent was prevented from
requesting the due process hearing, pursuant to subdivision (l) of
Section 56505.
(s) 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.
(t) 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.
(u) 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.
(v) 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.
(w) 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.
(x) 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.
(y) 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.
(z) A complaint filed with the department shall allege a violation
of the Individuals with Disabilities Education Act (20 U.S.C. Sec.
1400 et seq.) or a provision of this part that occurred not more than
one year prior to the date that the complaint is received by the
department, pursuant to Section 56500.2 and subsection (c) of Section
300.662 of Title 34 of the Code of Federal Regulations.
SEC. 6. Article 3.9 (commencing with Section 56058) is added to
Chapter 1 of Part 30 of the Education Code, to read:
Article 3.9. Qualifications for Special Education Teachers
56058. Special education teachers providing instruction and
educational services under this part shall meet the same "highly
qualified" requirements, as defined in paragraph (10) of Section 1401
of Title 20 of the United States Code, and qualifications described
in paragraph (14) of subsection (a) of Section 1412 of Title 20 of
the United States Code.
56059. This part does not create a right of action on behalf of
an individual with exceptional needs or class of pupils for failure
of a state or local educational agency employee to be highly
qualified.
SEC. 7. Section 56138 of the Education Code is amended to read:
56138. The Superintendent shall develop, and the state 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 paragraph (15) of
subsection (a) of Section 1412 of Title 20 of the United States Code.
SEC. 8. Section 56171 of the Education Code
is amended to read:
56171. Local educational agencies 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 local educational agencies 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 clause (ii) of subparagraph (A) of paragraph (10) of
subsection (a) of Section 1412 of Title 20 of the United States Code.
SEC. 9. Section 56172 of the Education Code is amended to read:
56172. (a) The local educational agency shall make provision for
the participation of private school children with disabilities in
special education programs under this part by providing them with
special education and related services in accordance with the
provisions of this article and subparagraph (A) of paragraph (10) of
subsection (a) of Section 1412 of Title 20 of the United States Code.
(b) The local educational agency or, where appropriate, the
department, shall ensure timely and meaningful consultation with
private school representatives and representatives of parents of
parentally placed private school children with disabilities during
the design and development of special education and related services
for the children in accordance with clause (iii) of subparagraph (A)
of paragraph (10) of subsection (a) of Section 1412 of Title 20 of
the United States Code.
(c) When timely and meaningful consultation as required in
subdivision (b) has occurred, the local educational agency shall
obtain a written affirmation signed by the representatives of
participating private schools, and if the representatives do not
provide the affirmation within a reasonable period of time, the local
educational agency shall forward the documentation of the
consultation process to the department in accordance with clause (iv)
of subparagraph (A) of paragraph (10) of subsection (a) of Section
1412 of Title 20 of the United States Code.
(d) A private school official shall have the right, pursuant to
clause (v) of subparagraph (A) of paragraph (10) of subsection (a) of
Section 1412 of Title 20 of the United States Code, to submit a
complaint to the department that the local educational agency did not
engage in consultation that was meaningful and timely or did not
give due consideration to the views of the private school official.
(e) The provision of equitable services for children enrolled in
private schools by their parents shall be provided by employees of a
public agency, as defined in Section 56028.5, or through contract by
the public agency with an individual, association, agency,
organization, or other entity.
(f) Special education and related services, including materials
and equipment, provided to a pupil with a disability who has been
parentally placed in a private school shall be secular, neutral, and
nonideological, as required by clause (vi) of subparagraph (A) of
paragraph (10) of subsection (a) of Section 1412 of Title 20 of the
United States Code.
SEC. 10. Section 56173 of the Education Code is amended to read:
56173. To meet the requirements of Section 56172, each local
educational agency shall provide special education and related
services to pupils with disabilities enrolled by a parent in private
elementary and secondary schools, described in Section 56171, by
expending an amount of federal state grant funds allocated to the
state under Part B of the federal Individuals with Disabilities
Education Act (20 U.S.C. Sec. 1400 et seq.) equal to a proportionate
amount of federal funds made available under the Part B grant program
for local assistance, in accordance with clause (i) of subparagraph
(A) of paragraph (10) of subsection (a) of Section 1412 of Title 20
of the United States Code and Section 300.453 of Title 34 of the Code
of Federal Regulations.
The control of public funds used to provide special education and
related services under subparagraph (A) of paragraph (10) of
subsection (a) of Section 1412 of Title 20 of the United States Code,
and title to materials, equipment, and property purchased with those
funds, shall be in a public agency for the uses and purposes
provided in the federal Individuals with Disabilities Education Act
(20 U.S.C. Sec. 1400 et seq.). A public agency shall administer the
funds and property.
SEC. 11. 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 local educational agency, enrolls the
child in a private elementary or secondary school without the consent
of or referral by the local educational agency, a court or a due
process hearing officer may require the local educational agency to
reimburse the parent or guardian for the cost of that enrollment if
the court or due process hearing officer finds that the local
educational agency 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 clause (ii) of
subparagraph (C) of paragraph (10) of subsection (a) of Section 1412
of Title 20 of the United States Code and subsection (c) of Section
300.403 of Title 34 of the Code of Federal Regulations.
SEC. 12. 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 pursuant to clause (iii) of subparagraph (C)
of paragraph (10) of subsection (a) of Section 1412 of Title 20 of
the United States Code 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 local educational agency 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
local educational agency 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 or guardian's removal of the child from
the public school, the local educational agency informed the parent,
through the notice requirements described in paragraph (3) of
subsection (b) of Section 1415 of Title 20 of the United States Code,
of its intent to assess the child, including a statement of the
purpose of the assessment that was appropriate and reasonable, but
the parent or guardian did not make the child available for the
assessment.
(d) Upon a judicial finding of unreasonableness with respect to
actions taken by a parent or guardian.
SEC. 13. Section 56177 of the Education Code is amended to read:
56177. (a) Notwithstanding the notice requirement in subclause
(I) of clause (iii) of subparagraph (C) of paragraph (10) of
subsection (a) of Section 1412 of Title 20 of the United States Code,
the cost of reimbursement shall not be reduced or denied, in
accordance with clause (iv) of subparagraph (C) of paragraph (10) of
subsection (a) of Section 1412 of Title 20 of the United States Code,
for failure to provide the notice in the event of any of the
following:
(1) The school prevented the parent or guardian from providing the
notice.
(2) The parents had not received notice, pursuant to Section 1415
of Title 20 of the United States Code, of the notice requirement in
subclause (I) of clause (iii) of subparagraph (C) of paragraph (10)
of subsection (a) of Section 1412 of Title 20 of the United States
Code.
(3) Compliance with the federal provision cited in paragraph (2)
would likely result in physical harm to the child.
(b) In the discretion of a court or a hearing officer, the cost of
reimbursement may not be reduced or denied for failure to provide
the notice in either of the following circumstances:
(1) The parent or guardian is illiterate or cannot write in
English.
(2) Providing the notice described in subclause (I) of clause
(iii) of subparagraph (C) of paragraph (10) of subsection (a) of
Section 1412 of Title 20 of the United States Code would likely
result in serious emotional harm to the child.
SEC. 14. Section 56205 of the Education Code is amended to read:
56205. (a) Each special education local plan area submitting a
local plan to the Superintendent under this part shall assure, in
conformity with subsection (a) of Section 1412 of, and paragraph (1)
of subsection (a) of Section 1413 of Title 20 of the United States
Code, that it has in effect policies, procedures, and programs that
are consistent with state laws, regulations, and policies governing
the following:
(1) Free appropriate public education.
(2) Full educational opportunity.
(3) Child find and referral.
(4) Individualized education programs, including development,
implementation, review, and revision.
(5) Least restrictive environment.
(6) Procedural safeguards.
(7) Annual and triennial assessments.
(8) Confidentiality.
(9) Transition from Subchapter III (commencing with Section 1431)
of Title 20 of the United States Code to the preschool program.
(10) Children in private schools.
(11) Compliance assurances, including general compliance with the
federal Individuals with Disabilities Education Act (20 U.S.C. Sec.
1400 et seq.), Section 504 of the Rehabilitation Act of 1973 (29
U.S.C. Sec. 794), the federal Americans with Disabilities Act of 1990
(42 U.S.C. Sec. 12101 et seq.), federal regulations relating
thereto, and this part.
(12) (A) A description of the governance and administration of the
plan, including identification of the governing body of a
multidistrict plan or the individual responsible for administration
in a single district plan, and of the elected officials to whom the
governing body or individual is responsible.
(B) A description of the regionalized operations and services
listed in Section 56836.23 and the direct instructional support
provided by program specialists in accordance with Section 56368 to
be provided through the plan.
(C) Verification that a community advisory committee has been
established pursuant to Section 56190.
(D) Multidistrict plans, submitted pursuant to subdivision (b) or
(c) of Section 56195.1, shall do the following:
(i) Specify the responsibilities of each participating county
office and district governing board in the policymaking process, the
responsibilities of the superintendents of each participating
district and county in the implementation of the plan, and the
responsibilities of district and county administrators of special
education in coordinating the administration of the local plan.
(ii) Identify the respective roles of the administrative unit and
the administrator of the special education local plan area and the
individual local educational agencies within the special education
local plan area in relation to the following:
(I) The hiring, supervision, evaluation, and discipline of the
administrator of the special education local plan area and staff
employed by the administrative unit in support of the local plan.
(II) The allocation from the state of federal and state funds to
the special education local plan area administrative unit or to local
educational agencies within the special education local plan area.
(III) The operation of special education programs.
(IV) Monitoring the appropriate use of federal, state, and local
funds allocated for special education programs.
(V) The preparation of program and fiscal reports required of the
special education local plan area by the state.
(iii) Include copies of joint powers agreements or contractual
agreements, as appropriate, for districts and counties that elect to
enter into those agreements pursuant to subdivision (b) or (c) of
Section 56195.1.
(E) The description of the governance and administration of the
plan, and the policymaking process, shall be consistent with
subdivision (f) of Section 56001, subdivision (a) of Section 56195.3,
and Section 56195.9, and shall reflect a schedule of regular
consultations regarding policy and budget development with
representatives of special education and regular education teachers
and administrators selected by the groups they represent and parent
members of the community advisory committee established pursuant to
Article 7 (commencing with Section 56190) of Chapter 2.
(13) Personnel qualifications to ensure that personnel, including
special education teachers and personnel and paraprofessionals
providing related services, necessary to implement this part are
appropriately and adequately prepared and trained in accordance with
paragraph (14) of subsection (a) of Section 1412, and paragraph (3)
of subsection (a) of Section 1413, of Title 20 of the United States
Code.
(14) Performance goals and indicators.
(15) Participation in state and districtwide assessments,
including assessments described under Section 1111 of the federal
Elementary and Secondary Education Act of 1965 (20 U.S.C. Sec. 6301
et seq.) and alternate assessments in accordance with paragraph (16)
of subsection (a) of Section 1412 of Title 20 of the United States
Code, and reports relating to assessments.
(16) Supplementation of state, local, and other federal funds,
including nonsupplantation of funds.
(17) Maintenance of financial effort.
(18) Opportunities for public participation prior to adoption of
policies and procedures.
(19) Suspension and expulsion rates.
(20) Access to instructional materials by blind individuals with
exceptional needs and others with print disabilities in accordance
with paragraph (23) of subsection (a) of Section 1412 of Title 20 of
the United States Code.
(21) Overidentification and disproportionate representation by
race and ethnicity of children as individuals with exceptional needs,
including children with disabilities with a particular impairment
described in Section 1401 of Title 20 of the United States Code and
in accordance with paragraph (24) of subsection (a) of Section 1412
of Title 20 of the United States Code.
(22) Prohibition of mandatory medication use pursuant to Section
56040.5 and in accordance with paragraph (25) of subsection (a) of
Section 1412 of Title 20 of the United States Code.
(b) Each local plan submitted to the Superintendent under this
part shall also contain all the following:
(1) An annual budget plan that shall be adopted at a public
hearing held by the special education local plan area. Notice of this
hearing shall be posted in each school in the local plan area at
least 15 days prior to the hearing. The annual budget plan may be
revised during any fiscal year according to the policymaking process
established pursuant to subparagraphs (D) and (E) of paragraph (12)
of subdivision (a) and consistent with subdivision (f) of Section
56001 and Section 56195.9. The annual budget plan shall identify
expected expenditures for all items required by this part which shall
include, but not be limited to, the following:
(A) Funds received in accordance with Chapter 7.2 (commencing with
Section 56836).
(B) Administrative costs of the plan.
(C) Special education services to pupils with severe disabilities
and low incidence disabilities.
(D) Special education services to pupils with nonsevere
disabilities.
(E) Supplemental aids and services to meet the individual needs of
pupils placed in regular education classrooms and environments.
(F) Regionalized operations and services, and direct instructional
support by program specialists in accordance with Article 6
(commencing with Section 56836.23) of Chapter 7.2.
(G) The use of property taxes allocated to the special education
local plan area pursuant to Section 2572.
(2) An annual service plan shall be adopted at a public hearing
held by the special education local plan area. Notice of this
hearing shall be posted in each district in the special education
local plan area at least 15 days prior to the hearing. The annual
service plan may be revised during any fiscal year according to the
policymaking process established pursuant to subparagraphs (D) and
(E) of paragraph (12) of subdivision (a) and consistent with
subdivision (f) of Section 56001 and with Section 56195.9. The annual
service plan shall include a description of services to be provided
by each district and county office, including the nature of the
services and the physical location at which the services will be
provided, including alternative schools, charter schools, opportunity
schools and classes, community day schools operated by districts,
community schools operated by county offices, and juvenile court
schools, regardless of whether the district or county office is
participating in the local plan. This description shall demonstrate
that all individuals with exceptional needs shall have access to
services and instruction appropriate to meet their needs as specified
in their individualized education programs.
(3) A description of programs for early childhood special
education from birth through five years of age.
(4) A description of the method by which members of the public,
including parents or guardians of individuals with exceptional needs
who are receiving services under the plan, may address questions or
concerns to the governing body or individual identified in
subparagraph (A) of paragraph (12) of subdivision (a).
(5) A description of a dispute resolution process, including
mediation and final and binding arbitration to resolve disputes over
the distribution of funding, the responsibility for service
provision, and the other governance activities specified within the
plan.
(6) Verification that the plan has been reviewed by the community
advisory committee and that the committee had at least 30 days to
conduct this review prior to submission of the plan to the
Superintendent.
(7) A description of the process being utilized to meet the
requirements of Section 56303.
(c) A description of the process being utilized to oversee and
evaluate placements in nonpublic, nonsectarian schools and the method
of ensuring that all requirements of each pupil's individualized
education program are being met. The description shall include a
method for evaluating whether the pupil is making appropriate
educational progress.
(d) The local plan, budget plan, and annual service plan shall be
written in language that is understandable to the general public.
SEC. 15. Section 56301 of the Education Code is amended to read:
56301. (a) All children with disabilities residing in the state,
including children with disabilities who are homeless children or are
wards of the state and children with disabilities attending private,
including religious, elementary and secondary schools, regardless of
the severity of their disabilities, and who are in need of special
education and related services, shall be identified, located, and
assessed and a practical method is developed and implemented to
determine which children with disabilities are currently receiving
needed special education and related services as required by
paragraph (3) of subsection (a), and clause (ii) of subparagraph (A)
of paragraph (10) of subsection (a), of Section 1412 of Title 20 of
the United States Code. A child is not required to be classified by
his or her disability so long as each child who has a disability
listed in paragraph (3) of Section 1401 of Title 20 of the United
States Code and who, by reason of that disability, needs special
education and related services as an individual with exceptional
needs defined in Section 56026.
(b) In accordance with Section 300.125 of Title 34 of the Code of
Federal Regulations, the requirements of this section also apply to
highly mobile individuals with exceptional needs, such as migrant and
homeless children, and children who are suspected of being an
individual with exceptional needs pursuant to Section 56026 and in
need of special education, even though they are advancing from grade
to grade.
(c) (1) The child find process shall ensure the equitable
participation in special education and related services of parentally
placed private schoolchildren with disabilities and an accurate
count of those children. Child find activities conducted by local
educational agencies, or where applicable, the department, shall be
similar to those activities undertaken for pupils in public schools.
(2) In accordance with subclause (IV) of clause (ii) of
subparagraph (A) of paragraph (10) of subsection (a) of Section 1412
of Title 20 of the United States Code, the cost of the child find
activities in private, including religious, elementary and secondary
schools, may not be considered in determining whether a local
educational agency has met its obligations under the proportionate
funding provisions for children enrolled in private, including
religious, elementary and secondary schools.
(3) The child find process described in paragraph (1) shall be
completed in a time period comparable to that for other pupils
attending public schools in the local educational agency.
(d) (1) Each special education local plan area shall establish
written policies and procedures pursuant to Section 56205 for use by
its constituent local agencies for a continuous child find system
that addresses the relationships among identification, screening,
referral, assessment, planning, implementation, review, and the
triennial assessment. The policies and procedures shall include, but
need not be limited to, written notification of all parents of their
rights under this chapter, and the procedure for initiating a
referral for assessment to identify individuals with exceptional
needs.
(2) In accordance with subparagraph (A) of paragraph (1) of
subsection (d) of Section 1415 of Title 20 of the United States Code,
parents shall be given a copy of their rights and procedural
safeguards only one time a year, except that a copy also shall be
given to the parents upon initial referral or parental request for
assessment, upon the first occurrence of the filing for a due process
hearing under Section 56502, and upon request by a parent.
(3) A local educational agency may place a current copy of the
procedural safeguards notice on its Internet Web site, if such Web
site exists, pursuant to subparagraph (B) of paragraph (1) of
subsection (d) of Section 1415 of Title 20 of the United States Code.
(4) The contents of the procedural safeguards notice shall contain
the requirements listed in paragraph (2) of subsection (d) of
Section 1415 of Title 20 of the United States Code.
(e) Child find data collected pursuant to this chapter, or
collected pursuant to a regulation or an interagency agreement, are
subject to the confidentiality requirements of Section 300.125 and
Sections 300.560 to 300.577, inclusive, of Title 34 of the Code of
Federal Regulations.
SEC. 16. Section 56302.1 is added to the Education Code, to read:
56302.1. (a) Once a child has been referred for an initial
assessment to determine whether the child is an individual with
exceptional needs as defined in Section 56026 and to determine the
educational needs of the child, these determinations shall be made,
and an individualized education program meeting shall occur, within
60 days of receiving parental consent for the assessment in
accordance with subparagraph (C) of paragraph (1) of subsection (a)
of Section 1414 of Title 20 of the United States Code.
(b) The 60-day time period does not apply to a local educational
agency if either of the following occurs:
(1) A child enrolls in a school served by the local educational
agency after the relevant time period has commenced but prior to a
determination by his or her previous local educational agency of
whether the child is an individual with exceptional needs. The
exemption of this paragraph applies only if the subsequent local
educational agency is making sufficient progress to ensure a prompt
completion of the assessment, and the parent and subsequent local
educational agency agree to a specific date by which the assessment
shall be completed.
(2) The parent of a child repeatedly fails or refuses to produce
the child for the assessment.
SEC. 17. Section 56304 of the Education Code is amended to read:
56304. (a) The parents or guardians of a pupil who has been
referred for initial assessment, or of a pupil 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 subdivisions (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.
(b) In accordance with subsection (f) of Section 1414 of Title 20
of the United States Code, when conducting individualized education
program meetings and placement meetings pursuant to this part, and
when carrying out administrative matters under Chapter 5 (commencing
with Section 56500), including scheduling exchange of witness lists
and status conferences, the parent of an individual with exceptional
needs and a local educational agency may agree to use alternative
means of meeting participation, such as video conferences and
conference calls.
SEC. 18. 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. Pursuant to subparagraph (B) of paragraph (6) of
subsection (a) of Section 1412 of Title 20 of the United States Code,
the materials and procedures shall be provided in the pupil's native
language or mode of communication, unless it is clearly not feasible
to do so.
(b) Tests and other assessment materials meet all the following
requirements:
(1) Are provided and administered in the language and form most
likely to yield accurate information on what the pupil knows and can
do academically, developmentally, and functionally, unless it is not
feasible to so provide or administer as required by clause (ii) of
subparagraph (A) of paragraph (3) of subsection (b) of Section 1414
of Title 20 of the United States Code.
(2) Are used for purposes for which the assessments or measures
are valid and reliable.
(3) Are administered by trained and knowledgeable personnel and
are administered in accordance with any instructions provided by the
producer of the assessments, 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 subparagraph (B) of paragraph (2) of subsection
(b) of Section 1414 of Title 20 of the United States Code, no single
measure or assessment is used as the sole criterion for determining
whether a pupil is an individual with exceptional needs or
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 shall be obtained, when appropriate. For pupils
with residual vision, a low vision assessment shall be provided in
accordance with guidelines established pursuant to Section 56136. In
assessing each pupil under this article, the assessment shall be
conducted in accordance with subsections (h), (i), and (j) of Section
300.532 of Title 34 of the Code of Federal Regulations.
(g) The assessment of a pupil, including the assessment of a pupil
with a suspected low incidence disability, shall be conducted by
persons knowledgeable of that disability. Special attention shall be
given to the unique educational needs, including, but not limited to,
skills and the need for specialized services, materials, and
equipment consistent with guidelines established pursuant to Section
56136.
(h) As part of an initial assessment, if appropriate, and as part
of any reassessment under Part B of the federal Individuals with
Disabilities Education Act (20 U.S.C. Sec. 1400 et seq.) and this
part, the group that includes members of the individualized education
program team, and other qualified professionals, as appropriate,
shall follow the procedures specified in subsection (c) of Section
1414 of Title 20 of the United States Code. The group may conduct its
review without a meeting.
(i) Each local educational agency shall ensure that assessments of
individuals with exceptional needs who transfer from one district to
another district in the same academic year are coordinated with the
individual's prior and subsequent schools, as necessary and as
expeditiously as possible, in accordance with subparagraph (D) of
paragraph (3) of subsection (b) of Section 1414 of Title 20 of the
United States Code, to ensure prompt completion of full assessment.
SEC. 19. Section 56321 of the Education Code is amended to read:
56321. (a) If an assessment for the development or revision of
the individualized education program is to be conducted, the parent
or guardian of the pupil shall be given, in writing, a proposed
assessment plan within 15 days of the referral for assessment not
counting days between the pupil's regular school sessions or terms or
days of school vacation in excess of five schooldays from the date
of receipt of the referral, unless the parent or guardian agrees, in
writing, to an extension. However, in any event, the assessment plan
shall be developed within 10 days after the commencement of the
subsequent regular school year or the pupil's regular school term as
determined by each district's school calendar for each pupil for whom
a referral has been made 10 days or less prior to the end of the
regular school year. In the case of pupil school vacations, the
15-day time shall recommence on the date that the pupil's regular
schooldays reconvene. A copy of the notice of a parent's or guardian'
s rights shall be attached to the assessment plan. A written
explanation of all the procedural safeguards under the federal
Individuals with Disabilities Education Act (20 U.S.C. Sec. 1400 et
seq.), 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 native 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) The local educational agency proposing to conduct an initial
assessment to determine if the child qualifies as an individual with
exceptional needs shall obtain informed consent from the parent of
the child before conducting the assessment, in accordance with
subparagraph (D) of paragraph (1) of subsection (a) of Section 1414
of Title 20 of the United States Code. If the parent of the child
does not provide consent for an initial assessment, or the parent
fails to respond to a request to provide the consent, the local
educational agency may pursue the initial assessment utilizing the
procedures described in Section 1415 of Title 20 of the United States
Code and in accordance with paragraph (3) of subdivision (a) of
Section 56501 and 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. The assessment may begin
immediately upon receipt of the consent.
(d) The local educational agency shall not be required to obtain
informed consent from the parent of a child for an initial assessment
to determine whether the child is an individual with exceptional
needs under any of the following circumstances listed in subclause
(II) of clause (iii) of subparagraph (D) of paragraph (1) of
subsection (a) of Section 1414 of Title 20 of the United States Code:
(1) Despite reasonable efforts to do so, the local educational
agency cannot discover the whereabouts of the parent of the child.
(2) The rights of the parent of the child have been terminated in
accordance with state law.
(3) The rights of the parent to make educational decisions have
been subrogated by a judge in accordance with state law and consent
for an initial assessment has been given by an individual appointed
by the judge to represent the child.
(e) 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
subclause (I) of clause (i) of subparagraph (D) of paragraph (1) of
subsection (a) of Section 1414 of Title 20 of the United States Code.
(f) In accordance with paragraph (3) of subsection (a) of Section
300.505 of Title 34 of the Code of Federal Regulations, parental
consent is not required before reviewing existing data as part of an
assessment or reassessment, or before administering a test or other
assessment that is administered to all children, unless before
administration of that test or assessment, consent is required of the
parents of all the children.
(g) Pursuant to subparagraph (E) of paragraph (1) of subsection
(a) of Section 1414 of Title 20 of the United States Code, the
screening of a pupil by a teacher or specialist to determine
appropriate instructional strategies for curriculum implementation
shall not be considered to be an assessment for eligibility for
special education and related services.
SEC. 20. Section 56321.1 is added to the Education Code, to read:
56321.1. If the child is a ward of the state and is not residing
with his or her parent, the agency shall, pursuant to clause (iii) of
subparagraph (D) of paragraph (1) of subsection (a) of Section 1414
of Title 20 of the United States Code, make reasonable efforts to
obtain the informed consent from the parent, as defined in Section
56028, of the child for an initial assessment to determine whether
the child is an individual with exceptional needs.
SEC. 21. Section 56325 of the Education Code is amended to read:
56325. (a) (1) As required by subclause (I) of clause (i) of
subparagraph (C) of paragraph (2) of subsection (d) of Section 1414
of Title 20 of the United States Code, the following shall apply to
special education programs for individuals with exceptional needs who
transfer from district to district within the state. In the case of
an individual with exceptional needs who has an individualized
education program and transfers into a district from a district not
operating programs under the same local plan in which he or she was
last enrolled in a special education program within the same academic
year, the local educational agency shall provide the pupil with a
free appropriate public education, including services comparable to
those described in the previously approved individualized education
program, in consultation with the parents, for a period not to exceed
30 days, by which time the local educational agency shall adopt the
previously approved individualized education program or shall
develop, adopt, and implement a new individualized education program
that is consistent with federal and state law.
(2) In the case of an individual with exceptional needs who has an
individualized education program and transfers into a district from
a district operating programs under the same special education local
plan area of the district in which he or she was last enrolled in a
special education program within the same academic year, the new
district shall continue, without delay, to provide services
comparable to those described in the existing approved individualized
education program, unless the parent and the local educational
agency agree to develop, adopt, and implement a new individualized
education program that is consistent with federal and state law.
(3) As required by subclause (II) of clause (i) of subparagraph
(C) of paragraph (2) of subsection (d) of Section 1414 of Title 20 of
the United States Code, the following shall apply to special
education programs for individuals with exceptional needs who
transfer from an educational agency located outside the State of
California to a district within California. In the case of an
individual with exceptional needs who transfers from district to
district within the same academic year, the local educational agency
shall provide the pupil with a free appropriate public education,
including services comparable to those described in the previously
approved individualized education program, in consultation with the
parents, until the local educational agency conducts an assessment
pursuant to paragraph (1) of subsection (a) of Section 1414 of Title
20 of the United States Code, if determined to be necessary by the
local educational agency, and develops a new individualized education
program, if appropriate, that is consistent with federal and state
law.
(b) (1) To facilitate the transition for an individual with
exceptional needs described in subdivision (a), the new school in
which the individual with exceptional needs enrolls shall take
reasonable steps to promptly obtain the pupil's records, including
the individualized education program and supporting documents and any
other records relating to the provision of special education and
related services to the pupil, from the previous school in which the
pupil was enrolled, pursuant to paragraph (2) of subsection (a) of
Section 99.31 of Title 34 of the Code of Federal Regulations.
(2) The previous school in which the individual with exceptional
needs was enrolled shall take reasonable steps to promptly respond to
the request from the new school.
(c) If whenever a pupil described in subdivision (a) was placed
and residing in a residential nonpublic, nonsectarian school, prior
to transferring to a district in another special education local plan
area, and this placement is not eligible for funding pursuant to
Section 56836.16, the special education local plan area that contains
the district that made the residential nonpublic, nonsectarian
school placement is responsible for the funding of the placement,
including related services, for the remainder of the school year. An
extended year session is included in the school year in which the
session ends. This subdivision also applies to special education and
related services required under Section 7573 of the Government Code
for an individual with exceptional needs who was placed in a
residential placement by an expanded individualized education program
team, pursuant to Section 7572.5 of the Government Code, if the
parent of the individual moves during the course of the year to a
district in another special education local plan area.
SEC. 22. 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) (1) 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.
(2) In making a determination of eligibility under paragraph (1),
a pupil shall not, pursuant to paragraph (5) of subsection (b) of
Section 1414 of Title 20 of the United States Code, be determined to
be an individual with exceptional needs if the determinant factor for
the determination is any of the following:
(A) Lack of appropriate instruction in reading, including the
essential components of reading instruction as defined in paragraph
(3) of Section 6368 of Title 20 of the United States Code.
(B) Lack of instruction in mathematics.
(C) Limited-English proficiency.
(3) A copy of the assessment report and the documentation of
determination of eligibility shall be given to the parent or
guardian.
(b) A parent or guardian has the right to obtain, at public
expense, an independent educational assessment of the pupil from
qualified specialists, as defined by regulations of the board, if the
parent or guardian disagrees with an assessment obtained by the
public education agency, in accordance with Section 300.502 of Title
34 of the Code of Federal Regulations. If a public education agency
observed the pupil in conducting its assessment, or if its assessment
procedures make it permissible to have in-class observation of a
pupil, an equivalent opportunity shall apply to an independent
educational assessment of the pupil in the pupil's current
educational placement and setting, and observation of an educational
placement and setting, if any, proposed by the public education
agency, regardless of whether the independent educational assessment
is initiated before or after the filing of a due process hearing
proceeding.
(c) The public education agency may initiate a due process hearing
pursuant to Chapter 5 (commencing with Section 56500) to 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 maintains 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. If a public
education agency observed the pupil in conducting its assessment, or
if its assessment procedures make it permissible to have in-class
observation of a pupil, an equivalent opportunity shall apply to an
independent educational assessment of the pupil in the pupil's
current educational placement and setting, and observation of an
educational placement and setting, if any, proposed by the public
education agency, regardless of whether the independent educational
assessment is initiated before or after the filing of a due process
hearing proceeding.
(d) If a parent or guardian proposes a publicly financed placement
of the pupil in a nonpublic school, the public education agency
shall have an opportunity to observe the proposed placement and the
pupil in the proposed placement, if the pupil has already been
unilaterally placed in the nonpublic school by the parent or
guardian. Any observation conducted pursuant to this subdivision
shall only be of the pupil who is the subject of the observation and
may not include the observation or assessment of any other pupil in
the proposed placement. The observation or assessment by a public
education agency of a pupil other than the pupil who is the subject
of the observation pursuant to this subdivision may be conducted, if
at all, only with the consent of the parent or guardian pursuant to
this article. The results of any observation or assessment of any
other pupil in violation of this subdivision shall be inadmissible in
any due process or judicial proceeding regarding the free
appropriate public education of that other pupil.
SEC. 23. Section 56337 of the Education Code is repealed.
SEC. 24. Section 56337 is added to the Education Code, to read:
56337. (a) A specific learning disability, as defined in
paragraph (30) of Section 1401 of Title 20 of the United States Code,
means a disorder in one or more of the basic psychological processes
involved in understanding or in using language, spoken or written,
which may manifest itself in the imperfect ability to listen, think,
speak, read, write, spell, or perform mathematical calculations. The
term "specific learning disability" includes conditions such as
perceptual disabilities, brain injury, minimal brain dysfunction,
dyslexia, and developmental aphasia. That term does not include a
learning problem that is primarily the result of visual, hearing, or
motor disabilities, of mental retardation, of emotional disturbance,
or of environmental, cultural, or economic disadvantage.
(b) Notwithstanding any other provision of law and pursuant to
paragraph (6) of subsection (b) of Section 1414 of Title 20 of the
United States Code, in determining whether a pupil has a specific
learning disability as defined in subdivision (a), a local
educational agency is not required to take into consideration whether
a pupil has a severe discrepancy between achievement and
intellectual ability in oral expression, listening comprehension,
written expression, basic reading skill, reading comprehension,
mathematical calculation, or mathematical reasoning.
(c) In determining whether a pupil has a specific learning
disability, a local educational agency may use a process that
determines if the pupil responds to scientific, research-based
intervention as a part of the assessment procedures described in
paragraphs (2) and (3) of subsection (b) of Section 1414 of Title 20
of the United States Code.
SEC. 25. Section 56341 of the Education Code is amended to read:
56341. (a) Each meeting to develop, review, or revise the
individualized education program of an individual with exceptional
needs shall be conducted by an individualized education program team.
(b) The individualized education program team shall include all of
the following:
(1) One or both of the pupil's parents, a representative selected
by a parent, or both, in accordance with the federal Individuals with
Disabilities Education Act (20 U.S.C. Sec. 1400 et seq.).
(2) Not less than one regular education teacher of the pupil, if
the pupil is, or may be, participating in the regular education
environment. If more than one regular education teacher is providing
instructional services to the individual with exceptional needs, one
regular education teacher may be designated by the local educational
agency to represent the others.
The regular education teacher of an individual with exceptional
needs shall, to the extent appropriate, participate in the
development, review, and revision of the pupil's individualized
education program, including assisting in the determination of
appropriate positive behavioral interventions and supports, and other
strategies for the pupil, and the determination of supplementary
aids and services, program modifications, and supports for school
personnel that will be provided for the pupil, consistent with
subclause (IV) of clause (i) of subparagraph (A) of paragraph (1) of
subsection (d) of Section 1414 of Title 20 of the United States Code.
(3) Not less than one special education teacher of the pupil, or
if appropriate, not less than one special education provider of the
pupil.
(4) A representative of the local educational agency who meets all
of the following:
(A) Is qualified to provide, or supervise the provision of,
specially designed instruction to meet the unique needs of
individuals with exceptional needs.
(B) Is knowledgeable about the general curriculum.
(C) Is knowledgeable about the availability of resources of the
local educational agency.
(5) An individual who can interpret the instructional implications
of the assessment results. The individual may be a member of the
team described in paragraphs (2) to (6), inclusive.
(6) At the discretion of the parent, guardian, or the local
educational agency, other individuals who have knowledge or special
expertise regarding the pupil, including related services personnel,
as appropriate. The determination of whether the individual has
knowledge or special expertise regarding the pupil shall be made by
the party who invites the individual to be a member of the
individualized education program team.
(7) Whenever appropriate, the individual with exceptional needs.
(c) In accordance with Sections 300.540 and 300.542 of Title 34 of
the Code of Federal Regulations, for a pupil suspected of having a
specific learning disability, at least one member of the
individualized education program team shall be qualified to conduct
individual diagnostic examinations of children, such as a school
psychologist, speech-language pathologist, or remedial reading
teacher. In accordance with Section 300.542 of Title 34 of the Code
of Federal Regulations, at least one team member other than the pupil'
s regular teacher shall observe the pupil's academic performance in
the regular classroom setting. In the case of a child who is less
than schoolage or out of school, a team member shall observe the
child in an environment appropriate for a child of that age.
(d) (1) In the case of transition services, the local educational
agency shall invite an individual with exceptional needs to attend
his or her individualized education program meeting if a purpose of
the meeting will be the consideration of the needed transition
services for the individual.
(2) If the individual with exceptional needs does not attend the
individualized education program meeting, the local educational
agency shall take steps to ensure that the individual's preferences
and interests are considered.
(3) The local educational agency also shall invite to the
individualized education program team meetings a representative that
is likely to be responsible for providing or paying for transition
services. If an agency invited to send a representative to a meeting
does not do so, the local educational agency shall take other steps
to obtain participation of the other agency in the planning of any
transition services.
(e) A local educational agency may designate another local
educational agency member of the individualized education program
team to serve also as the representative required pursuant to
paragraph (4) of subdivision (b) if the requirements of subparagraphs
(A), (B), and (C) of paragraph (4) of subdivision (b) are met.
(f) A member of the individualized education program team shall
not be required to attend an individualized education program
meeting, in whole or in part, if the parent of the individual with
exceptional needs and the local educational agency agree that the
attendance of the member is not necessary because the member's area
of the curriculum or related services is not being modified or
discussed in the meeting.
(g) A member of the individualized education program team may be
excused from attending an individualized education program meeting,
in whole or in part, when the meeting involves a modification to or
discussion of the member's area of the curriculum or related
services, if both of the following occur:
(1) The parent and the local educational agency consent to the
excusal after conferring with the member.
(2) The member submits in writing to the parent and the
individualized education program team, input into the development of
the individualized education program prior to the meeting.
(h) A parent's agreement under subdivision (f) and consent under
subdivision (g) shall be in writing.
(i) In the case of a child who was previously served under Chapter
4.4 (commencing with Section 56425), Early Education for Individuals
with Exceptional Needs, or the California Early Intervention
Services Act under Title 14 (commencing with Section 95000) of the
Government Code, an invitation to the initial individualized
education program team meeting shall, at the request of the parent,
be sent to the infants and toddlers with disabilities coordinator or
other representatives of the early education or early intervention
system to assist with the smooth transition of services.
SEC. 26. Section 56341.1 of the Education Code is amended to read:
56341.1. (a) When developing each pupil's individualized
education program, the individualized education program team shall
consider the following:
(1) The strengths of the pupil.
(2) The concerns of the parents or guardians for enhancing the
education of the pupil.
(3) The results of the initial assessment or most recent
assessment of the pupil.
(4) The academic, developmental, and functional needs of the
child.
(b) The individualized education program team shall do the
following:
(1) In the case of a pupil whose behavior impedes his or her
learning or that of others, consider the use of positive behavioral
interventions and supports, and other strategies, to address that
behavior.
(2) In the case of a pupil with limited-English proficiency,
consider the language needs of the pupil as those needs relate to the
pupil's individualized education program.
(3) In the case of a pupil who is blind or visually impaired,
provide for instruction in braille, and the use of braille, unless
the individualized education program team determines, after an
assessment of the pupil's reading and writing skills, needs, and
appropriate reading and writing media, including an assessment of the
pupil's future needs for instruction in braille or the use of
braille, that instruction in braille or the use of braille is not
appropriate for the pupil.
(4) Consider the communication needs of the pupil, and in the case
of a pupil who is deaf or hard of hearing, consider the pupil's
language and communication needs, opportunities for direct
communications with peers and professional personnel in the pupil's
language and communication mode, academic level, and full range of
needs, including opportunities for direct instruction in the pupil's
language and communication mode.
(5) Consider whether the pupil requires assistive technology
devices and services as defined in paragraphs (1) and (2) of Section
1401 of Title 20 of the United States Code.
(c) If, in considering the special factors described in
subdivisions (a) and (b), the individualized education program team
determines that a pupil needs a particular device or service,
including an intervention, accommodation, or other program
modification, in order for the pupil to receive a free appropriate
public education, the individualized education program team shall
include a statement to that effect in the pupil's individualized
education program.
(d) The individualized education program team shall review the
pupil's individualized education program periodically, but not less
frequently than annually, to determine whether the annual goals for
the pupil are being achieved, and revise the individualized education
program, as appropriate, to address among other matters the
following:
(1) Any lack of expected progress toward the annual goals and in
the general curriculum, where appropriate.
(2) The results of any reassessment conducted pursuant to Section
56381.
(3) Information about the pupil provided to, or by, the parents or
guardians, as described in subdivision (b) of Section 56381.
(4) The pupil's anticipated needs.
(5) Any other relevant matter.
(e) A regular education teacher of the pupil, who is a member of
the individualized education program team, shall participate in the
review and revision of the individualized education program of the
pupil consistent with subparagraph (C) of paragraph (1) of subsection
(d) of Section 1414 of Title 20 of the United States Code.
(f) The parent or guardian shall have the right to present
information to the individualized education program team in person or
through a representative and the right to participate in meetings,
relating to eligibility for special education and related services,
recommendations, and program planning.
(g) (1) Notwithstanding Section 632 of the Penal Code, the parent
or guardian, or local educational agency shall have the right to
record electronically the proceedings of individualized education
program team meetings on an audiotape recorder. The parent or
guardian, or local educational agency shall notify the members of the
individualized education program team of their intent to record a
meeting at least 24 hours prior to the meeting. If the local
educational agency initiates the notice of intent to audiotape record
a meeting and the parent or guardian objects or refuses to attend
the meeting because it will be tape recorded, the meeting shall not
be recorded on an audiotape recorder.
(2) The Legislature hereby finds as follows:
(A) Under federal law, audiotape recordings made by a local
educational agency are subject to the federal Family Educational
Rights and Privacy Act (20 U.S.C. Sec. 1232g), and are subject to the
confidentiality requirements of the regulations under Sections
300.560 to 300.575, inclusive, of Part 34 of the Code of Federal
Regulations.
(B) Parents or guardians have the right, pursuant to Sections
99.10 to 99.22, inclusive, of Title 34 of the Code of Federal
Regulations, to do all of the following:
(i) Inspect and review the tape recordings.
(ii) Request that the tape recordings be amended if the parent or
guardian believes that they contain information that is inaccurate,
misleading, or in violation of the rights of privacy or other rights
of the individual with exceptional needs.
(iii) Challenge, in a hearing, information that the parent or
guardian believes is inaccurate, misleading, or in violation of the
individual's rights of privacy or other rights.
(h) It is the intent of the Legislature that the individualized
education program team meetings be nonadversarial and convened solely
for the purpose of making educational decisions for the good of the
individual with exceptional needs.
SEC. 27. Section 56341.5 of the Education Code is amended to read:
56341.5. (a) Each local educational agency convening a meeting of
the individualized education program team shall take steps to ensure
that no less than one of the parents or guardians of the individual
with exceptional needs are present at each individualized education
program meeting or are afforded the opportunity to participate.
(b) Parents or guardians shall be notified of the individualized
education program meeting early enough to ensure an opportunity to
attend.
(c) The individualized education program meeting shall be
scheduled at a mutually agreed-upon time and place. The notice of the
meeting under subdivision (b) shall indicate the purpose, time, and
location of the meeting and who shall be in attendance. Parents or
guardians shall also be informed in the notice of the right, pursuant
to clause (ii) of paragraph (1) of subsection (b) of Section 300.345
of Title 34 of the Code of Federal Regulations, to bring other
people to the meeting who have knowledge or special expertise
regarding the individual with exceptional needs.
(d) As part of the participation of an individual with exceptional
needs in the development of an individualized education program, as
required by federal law, the individual with exceptional needs shall
be allowed to provide confidential input to any representative of his
or her individualized education program team.
(e) For an individual with exceptional needs, beginning no later
than the effective date of the individualized education program in
effect when the individual reaches the age of 16 years, or younger if
determined appropriate by the individualized education program team,
the meeting notice shall also indicate that a purpose of the meeting
will be the consideration of the postsecondary goals and transition
services for the individual, pursuant to Section 56345.1 and
subclause (VIII) of clause (i) of subparagraph (A) of paragraph (1)
of subsection (d) of Section 1414 of Title 20 of the United States
Code, and the meeting notice shall indicate that the individual with
exceptional needs is invited to attend. If the pupil does not attend
the individualized education program meeting, the local educational
agency 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.
(f) The meeting notice shall also identify any other local agency
in accordance with paragraph (3) of subsection (b) of Section 300.344
of Title 34 of the Code of Federal Regulations.
(g) If no parent or guardian can attend the meeting, the local
educational agency shall use other methods to ensure parent or
guardian participation, including individual or conference telephone
calls.
(h) A meeting may be conducted without a parent or guardian in
attendance if the local educational agency is unable to convince the
parent or guardian that he or she should attend. In this event, the
local educational agency 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.
(i) The local educational agency shall take any action necessary
to ensure that the parent or guardian understands the proceedings at
a meeting, including arranging for an interpreter for parents or
guardians with deafness or whose native language is a language other
than English.
(j) The local educational agency shall give the parent or guardian
a copy of the individualized education program, at no cost to the
parent or guardian.
SEC. 27.5. 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 60 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
60-day time shall recommence on the date that pupil schooldays
reconvene. A meeting to develop an initial individualized education
program for the pupil shall be conducted within 30 days of a
determination that the pupil needs special education and related
services pursuant to paragraph (2) of subsection (b) of Section
300.343 of Title 34 of the Code of Federal Regulations.
(b) Each district, special education local plan area, or county
office shall have an individualized education program in effect for
each individual with exceptional needs within its jurisdiction at the
beginning of each school year in accordance with subdivision (a) and
pursuant to subsections (a) and (b) of Section 300.342 of Title 34
of the Code of Federal Regulations.
SEC. 28. Section 56345 of the Education Code is repealed.
SEC. 29. Section 56345 is added to the Education Code, to read:
56345. (a) The individualized education program is a written
statement for each individual with exceptional needs that is
developed, reviewed, and revised in accordance with this section, as
required by subsection (d) of Section 1414 of Title 20 of the United
States Code, and that includes the following:
(1) A statement of the individual's present levels of academic
achievement and functional performance, including the following:
(A) The manner in which the disability of the individual affects
his or her involvement and progress in the general education
curriculum.
(B) For preschool children, as appropriate, the manner in which
the disability affects his or her participation in appropriate
activities.
(C) For individuals with exceptional needs who take alternate
assessments aligned to alternate achievement standards, a description
of benchmarks or short-term objectives.
(2) A statement of measurable annual goals, including academic and
functional goals, designed to do the following:
(A) Meet the individual's needs that result from the individual's
disability to enable the pupil to be involved in and make progress in
the general curriculum.
(B) Meet each of the pupil's other educational needs that result
from the individual's disability.
(3) A description of the manner in which the progress of the pupil
toward meeting the annual goals described in paragraph (2) will be
measured and when periodic reports on the progress the pupil is
making toward meeting the annual goals, such as through the use of
quarterly or other periodic reports, concurrent with the issuance of
report cards, will be provided.
(4) A statement of the special education and related services and
supplementary aids and services, based on peer-reviewed research to
the extent practicable, to be provided to the pupil, or on behalf of
the pupil, and a statement of the program modifications or supports
for school personnel that will be provided to the pupil to do the
following:
(A) To advance appropriately toward attaining the annual goals.
(B) To be involved in and make progress in the general education
curriculum in accordance with paragraph (1) and to participate in
extracurricular and other nonacademic activities.
(C) To be educated and participate with other individuals with
exceptional needs and nondisabled pupils in the activities described
in this subdivision.
(5) An explanation of the extent, if any, to which the pupil will
not participate with nondisabled pupils in the regular class and in
the activities described in subparagraph (C) of paragraph (4).
(6) (A) A statement of any individual appropriate accommodations
that are necessary to measure the academic achievement and functional
performance of the pupil on state and districtwide assessments
consistent with subparagraph (A) of paragraph (16) of subsection (a)
of Section 1412 of Title 20 of the United States Code.
(B) If the individualized education program team determines that
the pupil shall take an alternate assessment on a particular state or
districtwide assessment of pupil achievement, a statement of the
following:
(i) The reason why the pupil cannot participate in the regular
assessment.
(ii) The reason why the particular alternate assessment selected
is appropriate for the pupil.
(7) The projected date for the beginning of the services and
modifications described in paragraph (4), and the anticipated
frequency, location, and duration of those services and
modifications.
(8) Beginning not later than the first individualized education
program to be in effect when the pupil is 16 years of age, and
updated annually thereafter, the following shall be included:
(A) Appropriate measurable postsecondary goals based upon
age-appropriate transition assessments related to training,
education, employment, and where appropriate, independent living
skills.
(B) The transition services, as defined in Section 56345.1,
including courses of study, needed to assist the pupil in reaching
those goals.
(b) If appropriate, the individualized education program shall
also include, but not be limited to, all of the following:
(1) For pupils in grades 7 to 12, inclusive, any alternative means
and modes necessary for the pupil to complete the district's
prescribed course of study and to meet or exceed proficiency
standards for graduation.
(2) For individuals whose native language is other than English,
linguistically appropriate goals, objectives, programs, and services.
(3) Pursuant to Section 300.309 of Title 34 of the Code of Federal
Regulations, extended school year services shall be included in the
individualized education program and provided to the pupil if the
pupil's individualized education program team determines, on an
individual basis, that the services are necessary for the provision
of a free appropriate public education to the pupil.
(4) Provision for the transition into the regular class program if
the pupil is to be transferred from a special class or nonpublic,
nonsectarian school into a regular class in a public school for any
part of the schoolday, including the following:
(A) A description of activities provided to integrate the pupil
into the regular education program. The description shall indicate
the nature of each activity, and the time spent on the activity each
day or week.
(B) A description of the activities provided to support the
transition of pupils from the special education program into the
regular education program.
(5) For pupils with low-incidence disabilities, specialized
services, materials, and equipment, consistent with guidelines
established pursuant to Section 56136.
(c) It is the intent of the Legislature in requiring
individualized education programs, that the local educational agency
is responsible for providing the services delineated in the
individualized education program. However, the Legislature
recognizes that some pupils may not meet or exceed the growth
projected in the annual goals and objectives of the pupil's
individualized education program. Pursuant to paragraph (2) of
subsection (a) of Section 300.350 of Title 34 of the Code of Federal
Regulations, public education agencies shall make a good faith effort
to assist each individual with exceptional needs to achieve the
goals and objectives or benchmarks listed in the individualized
education program of the pupil.
(d) Consistent with Section 56000.5 and clause (iv) of
subparagraph (B) of paragraph (3) of subsection (d) of Section 1414
of Title 20 of the United States Code, it is the intent of the
Legislature that, in making a determination of the services that
constitute an appropriate education to meet the unique needs of a
deaf or hard-of-hearing pupil in the least restrictive environment,
the individualized education program team shall consider the related
services and program options that provide the pupil with an equal
opportunity for communication access. The individualized education
program team shall specifically discuss the communication needs of
the pupil, consistent with "Deaf Students Education Services Policy
Guidance" (57 Fed. Reg. 49274 (October 1992)), including all of the
following:
(1) The pupil's primary language mode and language, which may
include the use of spoken language with or without visual cues, or
the use of sign language, or a combination of both.
(2) The availability of a sufficient number of age, cognitive, and
language peers of similar abilities, which may be met by
consolidating services into a local plan areawide program or
providing placement pursuant to Section 56361.
(3) Appropriate, direct, and ongoing language access to special
education teachers and other specialists who are proficient in the
pupil's primary language mode and language consistent with existing
law regarding teacher training requirements.
(4) Services necessary to ensure communication-accessible academic
instructions, school services, and extracurricular activities
consistent with the federal Vocational Rehabilitation Act of 1973 (29
U.S.C. Sec. 794 et seq.) and the federal Americans with Disabilities
Act of 1990 (42 U.S.C. Sec. 12101 et seq.).
(e) State moneys appropriated to districts or local agencies may
not be used for any additional responsibilities and services
associated with paragraphs (1) and (2) of subdivision (d), including
the training of special education teachers and other specialists,
even if those additional responsibilities or services are required
pursuant to a judicial or state agency determination. Those
responsibilities and services shall only be funded by a local
educational agency as follows:
(1) The costs of those activities shall be funded from existing
programs and funding sources.
(2) Those activities shall be supported by the resources otherwise
made available to those programs.
(3) Those activities shall be consistent with Sections 56240 to
56243, inclusive.
(f) It is the intent of the Legislature that the communication
skills of teachers who work with hard-of-hearing and deaf children be
improved. This section does not remove the local educational agency'
s discretionary authority in regard to in-service activities.
(g) Beginning not later than one year before the pupil reaches the
age 18, a statement that the pupil has been informed of the pupil's
rights under this part, if any, that will transfer to the pupil upon
reaching the age of 18 pursuant to Section 56041.5.
(h) The individualized education program team is not required to
include information under one component of a pupil's individualized
education program that is already contained under another component
of the individualized education program.
(i) This section does not require that additional information,
beyond that expressly required by Section 1414 of Title 20 of the
United States Code and this part, be included in the individualized
education program of a pupil.
SEC. 30. Section 56345.1 of the Education Code is amended to read:
56345.1. (a) The term "transition services," as defined in
paragraph (34) of Section 1401 of Title 20 of the United States Code
and as used in subparagraph (B) of paragraph (8) of subdivision (a)
of Section 56345, means a coordinated set of activities for an
individual with exceptional needs that does all of the following:
(1) Is designed within an outcome-oriented process, that promotes
movement from school to postschool activities, including
postsecondary education, vocational training, integrated employment,
including supported employment, continuing and adult education, adult
services, independent living, or community participation.
(2) Is based upon the individual pupil's needs, taking into
account the pupil's preferences and interests.
(3) Includes instruction, related services, community experiences,
the development of employment and other postschool adult living
objectives, and, if appropriate, acquisition of daily living skills
and functional vocational evaluation.
(b) If a participating agency, other than the local educational
agency, fails to provide the transition services described in the
pupil's individualized education program in accordance with paragraph
(6) of subsection (d) of Section 1414 of Title 20 of the United
States Code and paragraph (8) of subdivision (a) of Section 56345,
the local educational agency shall reconvene the individualized
education program team to identify alternative strategies to meet the
transition service needs for the pupil set out in the program.
SEC. 31. Section 56346 of the Education Code is repealed.
SEC. 32. Section 56346 is added to the Education Code, to read:
56346. (a) A local educational agency that is responsible for
making a free appropriate public education and related services to
the child with a disability under this part shall seek to obtain
informed consent from the parent of the child before providing
special education and related services to the child pursuant to
subclause (II) of clause (i) of subparagraph (D) of paragraph (1) of
subsection (a) of Section 1414 of Title 20 of the United States Code.
(b) If the parent of the child refuses to consent to the
initiation of services pursuant to subdivision (a), the local
educational agency shall not provide special education and related
services to the child by utilizing the procedures in Section 1415 of
Title 20 of the United States Code or the procedures in subdivision
(e) of Section 56506.
(c) If the parent of the child refuses to consent to the receipt
of special education and related services, or the parent fails to
respond to a request to provide the consent, both of the following
are applicable:
(1) The local educational agency shall not be considered to be in
violation of the requirement to make available a free appropriate
public education to the child for the failure to provide the child
with the special education and related services for which the local
educational agency requests consent.
(2) The local educational agency shall not be required to convene
an individualized education program meeting or develop an
individualized education program under this part for the child for
the special education and related services for which the local
educational agency requests consent.
(d) If the parent or guardian of a child who is an individual with
exceptional needs refuses all services in the individualized
education program after having consented to those services in the
past, the local educational agency shall file a request for due
process pursuant to Chapter 5 (commencing with Section 56500).
(e) If the parent of the child consents in writing to the receipt
of special education and related services for the child but does not
consent to all of the components of the
individualized education program, those
components of the program to which the parent has consented shall be
implemented so as not to delay providing instruction and services to
the child.
(f) If the local educational agency determines that the proposed
special education program component to which the parent does not
consent is necessary to provide a free appropriate public education
to the child, a due process hearing shall be initiated in accordance
with subsection (f) of Section 1415 of Title 20 of the United States
Code. If a due process hearing is held, the hearing decision shall be
the final administrative determination and shall be binding upon the
parties. While a resolution session, mediation conference, or due
process hearing is pending, the child shall remain in his or her
current placement, unless the parent and the local educational agency
agree otherwise.
SEC. 33. Section 56363 of the Education Code is amended to read:
56363. (a) As used in this part, the term "designated instruction
and services" means "related services" as that term is defined in
paragraph (26) of Section 1401 of Title 20 of the United States Code
and Section 300.24 of Title 34 of the Code of Federal Regulations.
The term "related services" means transportation, and such
developmental, corrective, and other supportive services (including
speech-language pathology and audiology services, interpreting
services, psychological services, physical and occupational therapy,
recreation, including therapeutic recreation, social work services,
school nurse services designed to enable an individual with
exceptional needs to receive a free appropriate public education as
described in the individualized education program of the child,
counseling services, including rehabilitation counseling, orientation
and mobility services, and medical services, except that such
medical services shall be for diagnostic and evaluation purposes
only) as may be required to assist an individual with exceptional
needs to benefit from special education, and includes the early
identification and assessment of disabling conditions in children.
(b) These services may include, but are not limited to, the
following:
(1) Language and speech development and remediation. The language
and speech development and remediation services may be provided by a
speech-language pathology assistant as defined in subdivision (f) of
Section 2530.2 of the Business and Professions Code.
(2) Audiological services.
(3) Orientation and mobility services.
(4) Instruction in the home or hospital.
(5) Adapted physical education.
(6) Physical and occupational therapy.
(7) Vision services.
(8) Specialized driver training instruction.
(9) Counseling and guidance services, including rehabilitation
counseling.
(10) Psychological services other than assessment and development
of the individualized education program.
(11) Parent counseling and training.
(12) Health and nursing services, including school nurse services
designed to enable an individual with exceptional needs to receive a
free appropriate public education as described in the individualized
education program.
(13) Social worker services.
(14) Specially designed vocational education and career
development.
(15) Recreation services.
(16) Specialized services for low-incidence disabilities, such as
readers, transcribers, and vision and hearing services.
(17) Interpreting services.
(c) The terms "designated instruction and services" and "related
services" do not include a medical device that is surgically
implanted, or the replacement of that device.
SEC. 34. Section 56380 of the Education Code is amended to read:
56380. (a) Pursuant to subparagraphs (A) and (B) of paragraph (4)
of subsection (d) of Section 1414 of Title 20 of the United States
Code, the local educational agency shall maintain procedures to
ensure that the individualized education program team does both of
the following:
(1) Reviews the pupil's individualized education program
periodically, but not less frequently than annually, to determine
whether the annual goals for the pupil are being achieved.
(2) Revises the individualized education program as appropriate to
address, among other matters, the provisions specified in
subdivision (d) of Section 56341.1.
(b) The annual review of an individualized education program shall
be conducted in accordance with the notice and scheduling
requirements for the initial assessment.
(c) This section does not preclude other meetings of the
individualized education program team from occurring as provided in
Section 56343.
SEC. 35. Section 56380.1 is added to the Education Code, to read:
56380.1. (a) In making changes to a pupil's individualized
education program after the annual individualized education program
meeting for a school year, the parent of the individual with
exceptional needs and the local educational agency may agree,
pursuant to subparagraph (D) of paragraph (3) of subsection (d) of
Section 1414 of the United States Code, not to convene an
individualized education program meeting for the purposes of making
those changes, and instead may develop a written document, signed by
the parent and by a representative of the local educational agency,
to amend or modify the pupil's existing individualized education
program.
(b) Changes to the individualized education program may be made,
in accordance with subparagraph (F) of paragraph (3) of subsection
(d) of Section 1414 of the United States Code, either by the entire
individualized education program team, as provided in subdivision
(a), or by amending the individualized education program rather than
by redrafting the entire individualized education program. Upon
request, a parent shall be provided with a revised copy of the
individualized education program with the amendments incorporated.
SEC. 36. Section 56381 of the Education Code is amended to read:
56381. (a) (1) A reassessment of the pupil, based upon procedures
specified in Section 56302.1 and in Article 2 (commencing with
Section 56320), and in accordance with subsections (a), (b), and (c)
of Section 1414 of Title 20 of the United States Code, shall be
conducted if the local educational agency determines that the
educational or related services needs, including improved academic
achievement and functional performance, of the pupil warrant a
reassessment, or if the pupil's parents or teacher requests a
reassessment.
(2) A reassessment shall occur not more frequently than once a
year, unless the parent and the local educational agency agree
otherwise, and shall occur at least once every three years, unless
the parent and the local educational agency agree, in writing, that a
reassessment is unnecessary.
If the reassessment so indicates, a new individualized education
program shall be developed.
(b) As part of any reassessment, the individualized education
program team and other qualified professionals, as appropriate, shall
do the following:
(1) Review existing assessment data on the pupil, including
assessments and information provided by the parents of the pupil, as
specified in clause (i) of paragraph (1) of subsection (a) of Section
300.533 of Title 34 of the Code of Federal Regulations, current
classroom-based assessments and observations, and teacher and related
services providers' observations.
(2) On the basis of the review conducted pursuant to paragraph
(1), and input from the pupil's parents, identify what additional
data, if any, is needed to determine:
(A) Whether the pupil continues to have a disability described in
paragraph (3) of Section 1401 of Title 20 of the United States Code.
(B) The present levels of performance and educational needs of the
pupil.
(C) Whether the pupil continues to need special education and
related services.
(D) Whether any additions or modifications to the special
education and related services are needed to enable the pupil to meet
the measurable annual goals set out in the individualized education
program of the pupil and to participate, as appropriate, in the
general curriculum.
(c) The local educational agency shall administer tests and other
assessment materials needed to produce the data identified by the
individualized education program team.
(d) If the individualized education program team and other
qualified professionals, as appropriate, determine that no additional
data is needed to determine whether the pupil continues to be an
individual with exceptional needs, and to determine the educational
needs of the pupil, the local educational agency shall notify the
pupil's parents of that determination and the reasons for it, and the
right of the parents to request an assessment to determine whether
the pupil continues to be an individual with exceptional needs, and
to determine the educational needs of the pupil. The local
educational agency is not required to conduct an assessment, unless
requested by the pupil's parents.
(e) A local educational agency shall assess an individual with
exceptional needs in accordance with this section and procedures
specified in Article 2 (commencing with Section 56320), as provided
in paragraph (2) of subsection (c) of Section 300.534 of Title 34 of
the Code of Federal Regulations.
(f) A reassessment may not be conducted, unless the written
consent of the parent is obtained prior to reassessment, except
pursuant to subdivision (e) of Section 56506. Pursuant to paragraphs
(1) and (2) of subsection (c) of Section 300.505 of Title 34 of the
Code of Federal Regulations, informed parental consent need not be
obtained for the reassessment of an individual with exceptional needs
if the local educational agency can demonstrate that it has taken
reasonable measures to obtain that consent and the child's parent has
failed to respond. To meet the reasonable measure requirements of
this subdivision, the local educational agency shall use procedures
consistent with those set forth in subsection (d) of Section 300.345
of Title 34 of the Code of Federal Regulations.
(g) The individualized education program team and other qualified
professionals referenced in subdivision (b) may conduct the review
without a meeting, as provided in subsection (b) of Section 300.533
of Title 34 of the Code of Federal Regulations.
(h) Before determining that the individual is no longer an
individual with exceptional needs, a local educational agency shall
assess the individual in accordance with Section 56320 and this
section, as appropriate, and in accordance with Section 1414 of Title
20 of the United States Code.
(i) (1) The assessment described in subdivision (h) shall not be
required before the termination of a pupil's eligibility under this
part due to graduation from secondary school with a regular diploma,
or due to exceeding the age eligibility for a free appropriate public
education under Section 56026.
(2) For a pupil whose eligibility under this part terminates under
circumstances described in paragraph (1), a local educational agency
shall provide the pupil with a summary of the pupil's academic
achievement and functional performance, which shall include
recommendations on the manner in which to assist the pupil in meeting
his or her postsecondary educational goals as required in clause
(ii) of subparagraph (B) of paragraph (5) of subsection (c) of
Section 1414 of Title 20 of the United States Code.
(j) To the extent possible, the local educational agency shall
encourage the consolidation of reassessment meetings for the
individual with exceptional needs and other individualized education
program team meetings for the individual.
SEC. 37. Section 56385 of the Education Code is amended to read:
56385. (a) As provided in paragraph (16) of subsection (a) of
Section 1412 of Title 20 of the United States Code, individuals with
exceptional needs shall be included in general statewide and
districtwide assessment programs, including assessments described
under Section 1111 of the Elementary and Secondary Education Act of
1965 (20 U.S.C. Sec. 6301 et seq.), with appropriate accommodations
and alternate assessments where necessary and as indicated in their
respective individualized education programs.
(b) The Superintendent, or in the case of a districtwide
assessment, the local educational agency, shall develop and implement
guidelines for the participation of individuals with exceptional
needs in alternate assessments for those pupils who cannot
participate in regular assessments described in subdivision (a) with
accommodations as indicated by their respective individualized
education programs. The guidelines shall provide for alternate
assessments that meet the following requirements:
(1) Are aligned with the state's challenging academic content
standards and challenging pupil academic achievement standards.
(2) If the state has adopted alternate academic achievement
standards permitted under the regulations promulgated to carry out
paragraph (1) of subsection (b) of Section 1111 of the Elementary and
Secondary Education Act of 1965, measure the achievement of
individuals with exceptional needs against those standards.
(c) The department, or in the case of a districtwide assessment,
the local educational agency, 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 subparagraph (D) of
paragraph (16) of subsection (a) of Section 1412 of Title 20 of the
United States Code.
(d) The Superintendent, or, in the case of a districtwide
assessment, the local educational agency, shall, to the extent
feasible, pursuant to subparagraph (E) of paragraph (16) of
subsection (a) of Section 1412 of Title 20 of the United States Code,
use universal design principles in developing and administering any
assessments under this section.
SEC. 37.5. Section 56435 of the Education Code is repealed.
SEC. 38. Section 56449 of the Education Code is repealed.
SEC. 38.5. Section 56500.2 of the Education Code is amended to
read:
56500.2. (a) 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 a 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.
(b) Pursuant to subsection (c) of Section 300.662 of Title 34 of
the Code of Federal Regulations, a complaint filed under subdivision
(a) shall allege a violation that occurred not more than one year
prior to the date that the complaint is received by the department.
SEC. 39. Section 56500.3 of the Education Code is amended to read:
56500.3. (a) It is the intent of the Legislature that parties to
special education disputes be encouraged to seek resolution through
mediation prior to filing a request for a due process hearing. It is
also the intent of the Legislature that these voluntary prehearing
request mediation conferences be an informal process conducted in a
nonadversarial atmosphere to resolve issues relating to the
identification, assessment, or educational placement of the child, or
the provision of a free appropriate public education to the child,
to the satisfaction of both parties. Therefore, attorneys or other
independent contractors used to provide legal advocacy services may
not attend or otherwise participate in the prehearing request
mediation conferences.
(b) This part does not preclude the parent or the public education
agency from being accompanied and advised by nonattorney
representatives in the mediation conferences and consulting with an
attorney prior to or following a mediation conference. For purposes
of this section, "attorney" means an active, practicing member of the
State Bar of California or another independent contractor used to
provide legal advocacy services, but does not mean a parent of the
pupil who is also an attorney.
(c) Requesting or participating in a mediation conference is not a
prerequisite to requesting a due process hearing.
(d) All requests for a mediation conference shall be filed with
the Superintendent. The party initiating a mediation conference by
filing a written request with the Superintendent shall provide the
other party to the mediation with a copy of the request at the same
time the request is filed with the Superintendent. The mediation
conference shall be conducted by a person knowledgeable in the
process of reconciling differences in a nonadversarial manner and
under contract with the department pursuant to Section 56504.5. The
mediator shall be knowledgeable in the laws and regulations governing
special education.
(e) The prehearing mediation conference shall be scheduled within
15 days of receipt by the Superintendent of the request for
mediation. The mediation conference shall be completed within 30 days
after receipt of the request for mediation unless both parties to
the prehearing mediation conference agree to extend the time for
completing the mediation. Pursuant to paragraph (3) of subsection (b)
of Section 300.506 of Title 34 of the Code of Federal Regulations,
and to encourage the use of mediation, the state shall bear the cost
of the mediation process, including any meetings described in
subsection (d) of Section 300.506 of Title 34 of the Code of Federal
Regulations. The costs of mediation shall be included in the contract
described in Section 56504.5.
(f) In accordance with subparagraph (F) of paragraph (2) of
subsection (e) of Section 1415 of Title 20 of the United States Code,
if a resolution is reached that resolves the due process issue
through the mediation process, the parties shall execute a legally
binding written agreement that sets forth the resolution and that
does the following:
(1) States that all discussions that occurred during the mediation
process shall be confidential and may not be used as evidence in any
subsequent due process hearing or civil proceeding.
(2) Is signed by both the parent and the representative of the
public education agency who has the authority to bind the agency.
(3) Is enforceable in any state court of competent jurisdiction or
in a federal district court of the United States.
(g) If the mediation conference fails to resolve the issues to the
satisfaction of all parties, the party who requested the mediation
conference has the option of filing for a state-level hearing
pursuant to Section 56505. The mediator may assist the parties in
specifying any unresolved issues to be included in the hearing
request.
(h) Any mediation conference held pursuant to this section shall
be scheduled in a timely manner and shall be held at a time and place
reasonably convenient to the parties to the dispute in accordance
with paragraph (4) of subsection (b) of Section 300.506 of Title 34
of the Code of Federal Regulations.
(i) The mediation conference shall be conducted in accordance with
regulations adopted by the board.
(j) Notwithstanding any procedure set forth in this chapter, a
public education agency and a parent may, if the party initiating the
mediation conference so chooses, meet informally to resolve any
issue or issues to the satisfaction of both parties prior to the
mediation conference.
(k) The procedures and rights contained in this section shall be
included in the notice of parent rights attached to the pupil's
assessment plan pursuant to Section 56321.
SEC. 40. Section 56500.4 of the Education Code is amended to read:
56500.4. Pursuant to paragraphs (3) and (4) of subsection (b) and
paragraph (1) of subsection (c) 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, prior written notice shall be
given by the public education 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, and when the public
education agency proposes to initiate or change, or refuses 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.
SEC. 41. Section 56501.5 is added to the Education Code, to read:
56501.5. (a) Notwithstanding any other provision of law, prior to
a party invoking his or her right to an impartial due process
hearing under this chapter, the local educational agency shall
convene a resolution session, which is a meeting between the parents
and the relevant member or members of the individualized education
program team who have specific knowledge of the facts identified in
the due process hearing request, in accordance with subparagraph (B)
of paragraph (1) of subsection (f) of Section 1415 of Title 20 of the
United States Code.
(1) The meeting shall be convened within 15 days of receiving
notice of the parents' due process hearing request.
(2) The meeting shall include a representative of the local
educational agency who has decisionmaking authority on behalf of the
agency.
(3) The meeting shall not include an attorney of the local
educational agency, unless the parent is accompanied by an attorney.
(4) At the meeting, the parents of the child may discuss their due
process hearing issue, and the facts that form the basis of the due
process hearing request, and the local educational agency shall be
provided the opportunity to resolve the matter.
(b) The resolution session described in subdivision (a) is not
required if the parents and the local educational agency agree in
writing to waive the meeting, or agree to use mediation as provided
for in this chapter.
(c) If the local educational agency has not resolved the due
process hearing issue to the satisfaction of the parents within 30
days of the receipt of the due process hearing request notice, the
due process hearing may occur, and all of the applicable timelines
for a due process hearing under this chapter shall commence.
(d) In the case that a resolution is reached to resolve the due
process hearing issue at a meeting described in subdivision (a), the
parties shall execute a legally binding agreement that is both of the
following:
(1) Signed by both the parent and a representative of the local
educational agency who has the authority to bind the agency.
(2) Enforceable in any state court of competent jurisdiction or in
a federal district court of the United States.
(e) If the parties execute an agreement pursuant to subdivision
(d), a party may void the agreement within three business days of the
agreement's execution.
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 in accordance with paragraphs (1) and (2) of
subsection (c) of Section 300.507 of Title 34 of the Code of Federal
Regulations.
(b) The Superintendent shall develop a model form to assist
parents and guardians in filing a request for due process that is in
accordance with paragraph (3) of subsection (c) of Section 300.507 of
Title 34 of the Code of Federal Regulations.
(c) (1) The party, or the attorney representing 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. The due process hearing request notice shall remain
confidential. In accordance with subparagraph (A) of paragraph (7) of
subsection (b) of Section 1415 of Title 20 of the United States
Code, the request shall include the following:
(A) The name of the child, the address of the residence of the
child, or available contact information in the case of a homeless
child, and the name of the school the child is attending.
(B) In the case of a homeless child or youth within the meaning of
paragraph (2) of Section 725 of the federal McKinney-Vento Homeless
Assistance Act (42 U.S.C. Sec. 11434a(2)), available contact
information for the child and the name of the school the child is
attending.
(C) A description of the nature of the problem of the child
relating to the proposed initiation or change, including facts
relating to the problem.
(D) A proposed resolution of the problem to the extent known and
available to the party at the time.
(2) A party may not have a due process hearing until the party, or
the attorney representing the party, files a request that meets the
requirements listed in this subdivision.
(d) (1) The due process hearing request notice required by
subparagraph (A) of paragraph (7) of subsection (b) of Section 1415
of Title 20 of the United States Code shall be deemed to be
sufficient unless the party receiving the notice notifies the due
process hearing officer and the other party in writing that the
receiving party believes the due process hearing request notice has
not met the notice requirements. The party providing a hearing
officer notification shall provide the notification within 15 days of
receiving the due process hearing request notice. Within five days
of receipt of the notification, the hearing officer shall make a
determination on the face of the notice of whether the notification
meets the requirements of subparagraph (A) of paragraph (7) of
subsection (b) of Section 1415 of Title 20 of the United States Code,
and shall immediately notify the parties in writing of the
determination.
(2) The response to the due process hearing request notice shall
be made within 10 days of receiving the request notice in accordance
with subparagraph (B) of paragraph (2) of subsection (c) of Section
1415 of Title 20 of the United States Code.
(e) A party may amend a due process hearing request notice only if
the other party consents in writing to the amendment and is given
the opportunity to resolve the hearing issue through a meeting held
pursuant to subparagraph (B) of paragraph (1) of subsection (f) of
Section 1415 of Title 20 of the United States Code, or the due
process hearing officer grants permission, except that the hearing
officer may only grant permission at any time not later than five
days before a due process hearing occurs. The applicable timeline
for a due process hearing
under this chapter shall recommence at the time the party files an
amended notice, including the timeline under subparagraph (B) of
paragraph (1) of subsection (f) of Section 1415 of Title 20 of the
United States Code.
(f) 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.
(g) 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.
(h) 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.
(i) In accordance with subparagraph (B) of paragraph (3) of
subsection (f) of Section 1415 of Title 20 of the United States Code,
the party requesting the due process hearing shall not be allowed to
raise issues at the due process hearing that were not raised in the
notice filed under this section, unless the other party agrees
otherwise.
SEC. 43. 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) (1) The hearing shall be conducted by a person who shall, at a
minimum possess knowledge of, and the ability to understand, the
provisions of this part and related state statutes and implementing
regulations, the federal Individuals with Disabilities Education Act
(20 U.S.C. Sec. 1400 et seq.), federal regulations pertaining to the
act, and legal interpretations of this part and the federal law by
federal and state courts, and who has satisfactorily completed
training pursuant to this subdivision. The Superintendent shall
establish standards for the training of hearing officers, the degree
of specialization of the hearing officers, and the quality control
mechanisms to be used to ensure that the hearings are fair and the
decisions are accurate.
(2) The hearing officer shall possess the knowledge and ability to
conduct hearings in accordance with appropriate, standard legal
practice.
(3) The hearing officer shall possess the knowledge and ability to
render and write decisions in accordance with appropriate, standard
legal practice.
(4) A due process hearing may not be conducted by any individual
listed in clause (i) of subparagraph (A) of paragraph (3) of
subsection (f) of Section 1415 of Title 20 of the United States Code.
Pursuant to subsection (b) of Section 300.508 of Title 34 of the
Code of Federal Regulations, a person who is qualified to conduct a
hearing is not an employee of the agency solely because he or she is
paid by the agency to serve as a hearing officer. The hearing officer
shall encourage the parties to a hearing to consider the option of
mediation as an alternative to a hearing.
(d) Pursuant to subsection (a) of Section 300.514 of Title 34 of
the Code of Federal Regulations, during the pendency of the hearing
proceedings, including the actual state-level hearing, or judicial
proceeding regarding a due process hearing, the pupil shall remain in
his or her present placement, except as provided in Section 300.526
of Title 34 of the Code of Federal Regulations, unless the public
education 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 parent or guardian of the pupil that a change
of placement is appropriate, that placement shall be treated as an
agreement between the state or local agency and the parent or
guardian.
(e) Any party to the hearing held pursuant to this section shall
be afforded the following rights consistent with state and federal
statutes and regulations:
(1) The right to be accompanied and advised by counsel and by
individuals with special knowledge or training relating to the
problems of individuals with exceptional needs.
(2) The right to present evidence, written arguments, and oral
arguments.
(3) The right to confront, cross-examine, and compel the
attendance of, witnesses.
(4) The right to a written, or, at the option of the parents or
guardians, electronic verbatim record of the hearing.
(5) The right to written, or, at the option of the parent or
guardian, electronic findings of fact and decisions. The record of
the hearing and the findings of fact and decisions shall be provided
at no cost to parents or guardians in accordance with paragraph (2)
of subsection (c) of Section 300.509 of Title 34 of the Code of
Federal Regulations. The findings and decisions shall be made
available to the public after any personally identifiable information
has been deleted consistent with the confidentiality requirements of
subsection (c) of Section 1417 of Title 20 of the United States Code
and shall also be transmitted to the Advisory Commission on Special
Education pursuant to paragraph (4) of subsection (h) of Section 1415
of Title 20 of the United States Code.
(6) The right to be informed by the other parties to the hearing,
at least 10 days prior to the hearing, as to what those parties
believe are the issues to be decided at the hearing and their
proposed resolution of those issues. Upon the request of a parent
who is not represented by an attorney, the agency responsible for
conducting hearings shall provide a mediator to assist the parent in
identifying the issues and the proposed resolution of the issues.
(7) The right to receive from other parties to the hearing, at
least five business days prior to the hearing, a copy of all
documents and a list of all witnesses and their general area of
testimony that the parties intend to present at the hearing. Included
in the material to be disclosed to all parties at least five
business days prior to a hearing shall be all assessments completed
by that date and recommendations based on the assessments that the
parties intend to use at the hearing.
(8) The right, pursuant to paragraph (3) of subsection (a) of
Section 300.509 of Title 34 of the Code of Federal Regulations, to
prohibit the introduction of any evidence at the hearing that has not
been disclosed to that party at least five business days before the
hearing.
(f) (1) In accordance with subparagraph (E) of paragraph (3) of
subsection (f) of Section 1415 of Title 20 of the United States Code,
the decision of a due process hearing officer shall be made on
substantive grounds based on a determination of whether the child
received a free appropriate public education.
(2) In matters alleging a procedural violation, a due process
hearing officer may find that a child did not receive a free
appropriate public education only if the procedural violation did any
of the following:
(A) Impeded the child's right to a free appropriate public
education.
(B) Significantly impeded the parents' opportunity to participate
in the decisionmaking process regarding the provision of a free
appropriate public education to the parents' child.
(C) Caused a deprivation of educational benefits.
(3) The hearing conducted pursuant to this section shall be
completed and a written, reasoned decision, including the reasons for
any nonpublic, nonsectarian school placement, the provision of
nonpublic, nonsectarian agency services, or the reimbursement for the
placement or services, taking into account the requirements of
subdivision (a) of Section 56365, shall be 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.
(4) This subdivision does not preclude a due process hearing
officer from ordering a local educational agency to comply with
procedural requirements under this chapter.
(g) Subdivision (f) does not alter the burden of proof required in
a due process hearing, or prevent a hearing officer from ordering a
compensatory remedy for an individual with exceptional needs.
(h) The hearing conducted pursuant to this section shall be the
final administrative determination and binding on all parties.
(i) 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.
(j) In a hearing conducted pursuant to this section, the hearing
officer may not base a decision solely on nonsubstantive procedural
errors, unless the hearing officer finds that the nonsubstantive
procedural errors resulted in the loss of an educational opportunity
to the pupil or interfered with the opportunity of the parent or
guardian of the pupil to participate in the formulation process of
the individualized education program.
(k) This chapter does not preclude a party aggrieved by the
findings and decisions in a hearing under this section from
exercising the right to appeal the decision to a state court of
competent jurisdiction. An aggrieved party may also exercise the
right to bring a civil action in a district court of the United
States without regard to the amount in controversy, pursuant to
Section 300.512 of Title 34 of the Code of Federal Regulations. An
appeal shall be made within 90 days of receipt of the hearing
decision. During the pendency of any administrative or judicial
proceeding conducted pursuant to Chapter 5 (commencing with Section
56500), the child involved in the hearing shall remain in his or her
present educational placement, unless the public education agency and
the parent or guardian of the child agree otherwise. 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.
(l) 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. A party
initiating a request for a due process hearing on and after the
effective date of the act that amends this subdivision in the 2005-06
Regular Session, may file the request within the two-year statute of
limitations provision in subparagraph (B) of paragraph (6) of
subsection (b) of Section 1415 of the United States Code. A party may
file a request within the three-year statute of limitations
provision of this subdivision until October 9, 2006, but shall, in
accordance with Section 56501.5, participate in a mediation
conference which shall be conducted pursuant to this chapter in an
effort to resolve the due process hearing issue. In accordance with
subparagraph (D) of paragraph (3) of subsection (f) of Section 1415
of Title 20 of the United States Code, the time periods described in
this subdivision shall not apply to a parent if the parent was
prevented from requesting the due process hearing due to either of
the following:
(1) Specific misrepresentations by the local educational agency
that it had solved the problem forming the basis of the due process
hearing request.
(2) The local educational agency's withholding of information from
the parent that was required under this part to be provided to the
parent.
(m) Pursuant to subsection (c) of Section 300.508 of Title 34 of
the Code of Federal Regulations, each public education agency shall
keep a list of the persons who serve as due process hearing officers,
in accordance with Section 56504.5, and the list shall include a
statement of the qualifications of each of those persons. The list of
hearing officers shall be provided to the public education agencies
by the organization or entity under contract with the department to
conduct due process hearings.
(n) This section shall remain in effect only until October 9,
2006, and as of that date is repealed.
SEC. 43.5. Section 56505 is added to the Education Code, 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) (1) The hearing shall be conducted by a person who shall, at a
minimum, possess knowledge of, and the ability to understand, the
provisions of this part and related state statutes and implementing
regulations, the federal Individuals with Disabilities Education Act
(20 U.S.C. Sec. 1400 et seq.), federal regulations pertaining to the
act, and legal interpretations of this part and the federal law by
federal and state courts, and who has satisfactorily completed
training pursuant to this subdivision. The Superintendent shall
establish standards for the training of hearing officers, the degree
of specialization of the hearing officers, and the quality control
mechanisms to be used to ensure that the hearings are fair and the
decisions are accurate.
(2) The hearing officer shall possess the knowledge and ability to
conduct hearings in accordance with appropriate, standard legal
practice.
(3) The hearing officer shall possess the knowledge and ability to
render and write decisions in accordance with appropriate, standard
legal practice.
(4) A due process hearing may not be conducted by any individual
listed in clause (i) of subparagraph (A) of paragraph (3) of
subsection (f) of Section 1415 of Title 20 of the United States Code.
Pursuant to subsection (b) of Section 300.508 of Title 34 of the
Code of Federal Regulations, a person who is qualified to conduct a
hearing is not an employee of the agency solely because he or she is
paid by the agency to serve as a hearing officer. The hearing officer
shall encourage the parties to a hearing to consider the option of
mediation as an alternative to a hearing.
(d) Pursuant to subsection (a) of Section 300.514 of Title 34 of
the Code of Federal Regulations, during the pendency of the hearing
proceedings, including the actual state-level hearing, or judicial
proceeding regarding a due process hearing, the pupil shall remain in
his or her present placement, except as provided in Section 300.526
of Title 34 of the Code of Federal Regulations, unless the public
education 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 parent or guardian of the pupil that a change
of placement is appropriate, that placement shall be treated as an
agreement between the state or local agency and the parent or
guardian.
(e) Any party to the hearing held pursuant to this section shall
be afforded the following rights consistent with state and federal
statutes and regulations:
(1) The right to be accompanied and advised by counsel and by
individuals with special knowledge or training relating to the
problems of individuals with exceptional needs.
(2) The right to present evidence, written arguments, and oral
arguments.
(3) The right to confront, cross-examine, and compel the
attendance of, witnesses.
(4) The right to a written, or, at the option of the parents or
guardians, electronic verbatim record of the hearing.
(5) The right to written, or, at the option of the parent or
guardian, electronic findings of fact and decisions. The record of
the hearing and the findings of fact and decisions shall be provided
at no cost to parents or guardians in accordance with paragraph (2)
of subsection (c) of Section 300.509 of Title 34 of the Code of
Federal Regulations. The findings and decisions shall be made
available to the public after any personally identifiable information
has been deleted consistent with the confidentiality requirements of
subsection (c) of Section 1417 of Title 20 of the United States Code
and shall also be transmitted to the Advisory Commission on Special
Education pursuant to paragraph (4) of subsection (h) of Section 1415
of Title 20 of the United States Code.
(6) The right to be informed by the other parties to the hearing,
at least 10 days prior to the hearing, as to what those parties
believe are the issues to be decided at the hearing and their
proposed resolution of those issues. Upon the request of a parent
who is not represented by an attorney, the agency responsible for
conducting hearings shall provide a mediator to assist the parent in
identifying the issues and the proposed resolution of the issues.
(7) The right to receive from other parties to the hearing, at
least five business days prior to the hearing, a copy of all
documents and a list of all witnesses and their general area of
testimony that the parties intend to present at the hearing. Included
in the material to be disclosed to all parties at least five
business days prior to a hearing shall be all assessments completed
by that date and recommendations based on the assessments that the
parties intend to use at the hearing.
(8) The right, pursuant to paragraph (3) of subsection (a) of
Section 300.509 of Title 34 of the Code of Federal Regulations, to
prohibit the introduction of any evidence at the hearing that has not
been disclosed to that party at least five business days before the
hearing.
(f) (1) In accordance with subparagraph (E) of paragraph (3) of
subsection (f) of Section 1415 of Title 20 of the United States Code,
the decision of a due process hearing officer shall be made on
substantive grounds based on a determination of whether the child
received a free appropriate public education.
(2) In matters alleging a procedural violation, a due process
hearing officer may find that a child did not receive a free
appropriate public education only if the procedural violation did any
of the following:
(A) Impeded the child's right to a free appropriate public
education.
(B) Significantly impeded the parents' opportunity to participate
in the decisionmaking process regarding the provision of a free
appropriate public education to the parents' child.
(C) Caused a deprivation of educational benefits.
(3) The hearing conducted pursuant to this section shall be
completed and a written, reasoned decision, including the reasons for
any nonpublic, nonsectarian school placement, the provision of
nonpublic, nonsectarian agency services, or the reimbursement for the
placement or services, taking into account the requirements of
subdivision (a) of Section 56365, shall be 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.
(4) This subdivision does not preclude a due process hearing
officer from ordering a local educational agency to comply with
procedural requirements under this chapter.
(g) Subdivision (f) does not alter the burden of proof required in
a due process hearing, or prevent a hearing officer from ordering a
compensatory remedy for an individual with exceptional needs.
(h) The hearing conducted pursuant to this section shall be the
final administrative determination and binding on all parties.
(i) 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.
(j) In a hearing conducted pursuant to this section, the hearing
officer may not base a decision solely on nonsubstantive procedural
errors, unless the hearing officer finds that the nonsubstantive
procedural errors resulted in the loss of an educational opportunity
to the pupil or interfered with the opportunity of the parent or
guardian of the pupil to participate in the formulation process of
the individualized education program.
(k) This chapter does not preclude a party aggrieved by the
findings and decisions in a hearing under this section from
exercising the right to appeal the decision to a state court of
competent jurisdiction. An aggrieved party may also exercise the
right to bring a civil action in a district court of the United
States without regard to the amount in controversy, pursuant to
Section 300.512 of Title 34 of the Code of Federal Regulations. An
appeal shall be made within 90 days of receipt of the hearing
decision. During the pendency of any administrative or judicial
proceeding conducted pursuant to Chapter 5 (commencing with Section
56500), the child involved in the hearing shall remain in his or her
present educational placement, unless the public education agency and
the parent or guardian of the child agree otherwise. 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.
(l) Any request for a due process hearing arising under
subdivision (a) of Section 56501 shall be filed within two years from
the date the party initiating the request knew or had reason to know
of the facts underlying the basis for the request. In accordance
with subparagraph (D) of paragraph (3) of subsection (f) of Section
1415 of Title 20 of the United States Code, the time period specified
in this subdivision does not apply to a parent if the parent was
prevented from requesting the due process hearing due to either of
the following:
(1) Specific misrepresentations by the local educational agency
that it had solved the problem forming the basis of the due process
hearing request.
(2) The local educational agency's withholding of information from
the parent that was required under this part to be provided to the
parent.
(m) Pursuant to subsection (c) of Section 300.508 of Title 34 of
the Code of Federal Regulations, each public education agency shall
keep a list of the persons who serve as due process hearing officers,
in accordance with Section 56504.5, and the list shall include a
statement of the qualifications of each of those persons. The list of
hearing officers shall be provided to the public education agencies
by the organization or entity under contract with the department to
conduct due process hearings.
(n) A party who filed for a due process hearing prior to the
effective date of this section is not bound by the two-year statute
of limitations time period in subdivision (l) if the party filed a
request within the three-year statute of limitations provision
pursuant to subdivision (l) as it read prior to October 9, 2006.
(o) This section shall become operative October 9, 2006.
SEC. 44. Section 56506 of the Education Code is amended to read:
56506. In addition to the due process hearing rights enumerated
in subdivision (b) of Section 56501, the following due process rights
extend to the pupil and the parent:
(a) Written notice to the parent of his or her rights in language
easily understood by the general public and in the native language of
the parent, as defined in Section 300.19 of Title 34 of the Code of
Federal Regulations, or other mode of communication used by the
parent, unless to do so is clearly not feasible. The written notice
of rights shall include, but not be limited to, those prescribed by
Section 56341.
(b) The right to initiate a referral of a child for special
education services pursuant to Section 56303.
(c) The right to obtain an independent educational assessment
pursuant to subdivision (b) or (c) of Section 56329.
(d) The right to participate in the development of the
individualized education program and to be informed of the
availability under state and federal law of free appropriate public
education and of all available alternative programs, both public and
nonpublic.
(e) Written parental consent pursuant to Section 56321 shall be
obtained before any assessment of the pupil is conducted, unless the
public education agency prevails in a due process hearing relating to
the assessment. In accordance with subsection (c) of Section 300.505
of Title 34 of the Code of Federal Regulations, informed parental
consent need not be obtained in the case of a reassessment of the
pupil if the local educational agency can
demonstrate that it has taken reasonable measures to
obtain consent and the pupil's parent has failed to respond.
(f) Written parental consent pursuant to Section 56346 shall be
obtained before the pupil is placed in a special education program.
(g) A parent of an individual with exceptional needs may elect to
receive notices required under this chapter by an electronic mail
communication, if the local educational agency makes that option
available, in accordance with subsection (n) of Section 1415 of Title
20 of the United States Code.
SEC. 45. Section 56507 of the Education Code is amended to read:
56507. (a) If either party to a due process hearing intends to be
represented by an attorney in the state hearing, notice of that
intent shall be given to the other party at least 10 days prior to
the hearing. The failure to provide that notice shall constitute good
cause for a continuance.
(b) (1) An award of reasonable attorneys' fees to the prevailing
parent, guardian, or pupil, as the case may be, may only be made
either with the agreement of the parties following the conclusion of
the administrative hearing process or by a court of competent
jurisdiction pursuant to paragraph (3) of subsection (i) of Section
1415 of Title 20 of the United States Code.
(2) In accordance with paragraph (3) of subsection (i) of Section
1415 of Title 20 of the United States Code, the court, in its
discretion, may award reasonable attorneys' fees as part of the costs
to a prevailing party who is a state educational agency or local
educational agency in the following circumstances:
(A) Against the attorney of a parent who files a due process
hearing request or subsequent cause of action that is frivolous,
unreasonable, or without foundation, or against the attorney of a
parent who continued to litigate after the litigation clearly became
frivolous, unreasonable, or without foundation.
(B) Against the attorney of a parent, or against the parent, if
the parent's due process hearing request or subsequent cause of
action was presented for any improper purpose, such as to harass, to
cause unnecessary delay, or to needlessly increase the cost of
litigation.
(c) Public education agencies shall not use federal funds
distributed under Part B of the federal Individuals with Disabilities
Education Act (20 U.S.C. Sec. 1400 et seq.), or other federal
special education funds, for the agency's own legal counsel or other
advocacy costs, that may include, but are not limited to, a private
attorney or employee of an attorney, legal paraprofessional, or other
paid advocate, related to a due process hearing or the appeal of a
hearing decision to the courts. Nor shall the funds be used to
reimburse parents who prevail and are awarded attorneys' fees,
pursuant to subdivision (b), as part of the judgment. Nothing in this
subdivision shall preclude public education agencies from using
these funds for attorney services related to the establishment of
policy and programs, or responsibilities, under Part B of the
Individuals with Disabilities Education Act (20 U.S.C. Sec. 1400 et
seq.) and the program administration of these programs. This
subdivision does not apply to attorneys and others hired under
contract to conduct administrative hearings pursuant to subdivision
(a) of Section 56505.
(d) The hearing decision shall indicate the extent to which each
party has prevailed on each issue heard and decided, including issues
involving other public agencies named as parties to the hearing.
SEC. 46. Section 56509 is added to the Education Code, to read:
56509. This chapter, in accordance with subsection (o) of Section
1415 of Title 20 of the United States Code, does not preclude a
parent from filing a separate due process hearing request on an issue
separate from a due process hearing request already filed.
SEC. 47. Section 56515 of the Education Code is amended to read:
56515. (a) In addition to the provisions of Chapter 6.5
(commencing with Section 49060) of Part 27, the confidentiality of
personally identifiable information about individuals with
exceptional needs shall be governed and protected in accordance with
the provisions of Sections 300.560 to 300.577, inclusive, of Title 34
of the Code of Federal Regulations, including, notice to parents,
access rights, records on more than one child, lists and types of
locations of information, parental consent regarding the disclosure
of personally identifiable information, fees for copies of records,
amendment of records at parent's request, opportunity for a hearing,
safeguards, destruction of information, children's privacy rights,
enforcement, and disciplinary information about an individual with
exceptional needs.
(b) Pursuant to paragraph (3) of subsection (b) of Section 300.500
of Title 34 of the Code of Federal Regulations, "personally
identifiable," as used in this part, includes all of the following
information:
(1) The name of the child, the child's parent, or other family
member.
(2) The address of the child.
(3) A personal identifier, including, but not limited to, the
child's social security number, a pupil number, a list of personal
characteristics, or other information that would make it possible to
identify the child with reasonable certainty.
(c) In accordance with subsection (b) of Section 300.571 of Title
34 of the Code of Federal Regulations, an agency or institution
subject to Section 99.1 of Title 34 of the Code of Federal
Regulations shall not release information from the education records
of an individual with exceptional needs to participating agencies
without the consent of the parent or guardian, unless authorized to
do so under Section 99.1 of Title 34 of the Code of Federal
Regulations.
SEC. 48. Section 56837 of the Education Code is repealed.
SEC. 49. Section 56837 is added to the Education Code, to read:
56837. For each fiscal year for which federal funds under Part B
of the federal Individuals with Disabilities Education Act (20 U.S.C.
Sec. 1400 set seq.) are allocated to the state pursuant to
subsection (d) of Section 1411 of Title 20 of the United States Code,
the federal funding for local entitlements shall be allocated
through the annual Budget Act in the following manner:
(a) The state shall first award each local educational agency,
including public charter schools that operate as local educational
agencies, the amount the local educational agency would have received
under Section 1411 for the 1999 fiscal year.
(b) After calculating the allocations under subdivision (a), the
state shall do both of the following:
(1) Allocate 85 percent of any remaining funds to the local
educational agencies described in subdivision (a) on the basis of the
relative numbers of pupils enrolled in public and private elementary
schools and secondary schools within each local educational agency's
territorial jurisdiction.
(2) Allocate 15 percent of the remaining funds to those local
educational agencies described in subdivision (a) in accordance with
the relative numbers of children living in poverty within each local
educational agency's jurisdiction, as determined by the
Superintendent.
SEC. 50. Section 56838 of the Education Code is amended to read:
56838. In each fiscal year for which federal funds are received
by the state pursuant to Section 1419 of Title 20 of the United
States Code for individuals with exceptional needs between the ages
of 3 and 5, inclusive, the portion of funds available for local
entitlements that are not reserved for state activities pursuant to
subsection (d) of Section 1419 of Title 20 of the United States Code
shall be allocated through the annual Budget Act in the following
manner:
(a) The state shall first award to each local educational agency,
including public charter schools that operate as local educational
agencies, the amount the local educational agency would have received
under Section 1419 of Title 20 of the United States Code for the
1997 federal fiscal year.
(b) After calculating the allocations under subdivision (a), the
state shall do both of the following:
(1) Allocate 85 percent of any remaining funds to those local
educational agencies described in subdivision (a) on the basis of the
relative numbers of pupils enrolled in public and private elementary
schools and secondary schools within each local educational agency's
territorial jurisdiction.
(2) Allocate 15 percent of those remaining funds to the local
educational agencies in accordance with the relative number of
children within each local educational agency living in poverty, as
determined by the Superintendent.
SEC. 51. Section 56841 of the Education Code is amended to read:
56841. (a) Federal funds available through Part B of the federal
Individuals with Disabilities Education Act (20 U.S.C. Sec. 1400 et
seq.) and appropriated through the annual Budget Act shall only be
used as follows:
(1) For the excess costs of providing special education and
related services to individuals with exceptional needs.
(2) To supplement state, local, and other federal funds and not to
supplant those funds.
(b) Except as provided in subdivisions (c) and (d), the funds
shall not be used to reduce the level of expenditures for the
education of individuals with exceptional needs made by the local
educational agency from local funds below the level of those
expenditures for the preceding fiscal year.
(c) Notwithstanding subdivision (b), a local educational agency
may reduce the level of expenditures from local funds where the
reduction is attributable to the following:
(1) The voluntary departure, by retirement or otherwise, or
departure for just cause, of special education personnel.
(2) A decrease in the enrollment of individuals with exceptional
needs.
(3) The termination of the obligation of the local educational
agency, consistent with this part, to provide a program of special
education to an individual or individuals with exceptional needs that
is an exceptionally costly program, as determined by the
Superintendent, because any of the following is applicable:
(A) The child has left the jurisdiction of the local educational
agency.
(B) The child has reached the age at which the obligation of the
local educational agency to provide a free appropriate public
education to the child has terminated.
(C) The child no longer needs the program of special education.
(4) The termination of costly expenditures for long-term
purchases, such as the acquisition of equipment or the construction
of facilities.
(d) Notwithstanding the provisions of paragraph (2) of subdivision
(a) and subdivision (b), for any fiscal year in which the allocation
received by a local educational agency under subsection (f) of
Section 1411 of Title 20 of the United States Code exceeds the amount
the local educational agency received for the previous fiscal year,
the local educational agency may reduce the level of expenditures
otherwise required by clause (iii) of subparagraph (A) of paragraph
(2) of subsection (a) of Section 1413 of Title 20 of the United
States Code by not more than 50 percent of the amount of the excess.
If a local educational agency exercises the authority under this
subdivision, the local educational agency shall use an amount of
local funds equal to the reduction in expenditures under this
subdivision to carry out activities authorized under the federal
Elementary and Secondary Education Act of 1965 (20 U.S.C. Sec. 6301
et seq.).
(e) Notwithstanding subdivision (d), if the Superintendent
determines that a local educational agency is unable to establish and
maintain programs of free appropriate public education that meet the
requirements of subsection (a) of Section 1413 of Title 20 of the
United States Code, or if the Superintendent has taken action against
the local educational agency under Section 1416 of Title 20 of the
United States Code, the Superintendent shall prohibit the local
educational agency from reducing the level of expenditures under
subdivision (d) for that fiscal year.
(f) The amount of funds expended by a local educational agency
under subsection (f) of Section 1413 of the United States Code for
early intervention services shall count toward the maximum amount of
expenditures the local educational agency may reduce under
subdivision (d) of this section.
(g) Notwithstanding subparagraph (A) of paragraph (2) of
subsection (a) of Section 1413 of Title 20 of the United States Code
or any other provision of the federal Individuals with Disabilities
Education Act (20 U.S.C. Sec. 1400 et seq.), a local educational
agency may use federal special education funds for any fiscal year to
carry out a schoolwide program under Section 1114 of the federal
Elementary and Secondary Education Act of 1965 (20 U.S.C. Sec. 6301
et seq.), except that the amount so used in any such program shall
not exceed the number of individuals with exceptional needs
participating in the schoolwide program, multiplied by the amount
received by the local educational agency under this article for that
fiscal year, and divided by the number of individuals with
exceptional needs in the jurisdiction of that local educational
agency.
(h) Notwithstanding subdivisions (a) to (g), inclusive, a local
educational agency may also use federal special education funds for
other purposes specified in subsection (a) of Section 1413 of Title
20 of the United States Code.
SEC. 52. Section 56842 of the Education Code is repealed.
SEC. 53. Section 56842 is added to the Education Code, to read:
56842. (a) A local educational agency may not use more than 15
percent of the amount the agency receives under Part B of the federal
Individuals with Disabilities Education Act (20 U.S.C. Sec. 1400 et
seq.) for any fiscal year, less any amount reduced by the local
educational agency pursuant to subparagraph (C) of paragraph (2) of
subsection (a) of Section 1413 of Title 20 of the United States Code,
if any, in combination with other amounts, which may include amounts
other than education funds, to develop and implement, coordinated,
early intervening services, which may include interagency financing
structures, for pupils in kindergarten and in grades 1 to 12,
inclusive, with a particular emphasis on pupils in kindergarten and
in grades 1 to 3, inclusive, who have not been identified as needing
special education or related services but who need additional
academic and behavioral support to succeed in a general education
environment.
(b) The implementation of the coordinated, early intervening
services under this section, including activities, reporting, and
coordination with the federal Elementary and Secondary Education Act
of 1965 (20 U.S.C. Sec. 6301 et seq.), shall be carried out by a
local educational agency as specified in subsection (f) of Section
1413 of Title 20 of the United States Code.
(c) This section does not limit or create a right to a free
appropriate public education under this part.
SEC. 54. Section 56844 is added to the Education Code, to read:
56844. In complying with paragraph (17), regarding the
prohibition against supplantation of federal funds, and paragraph
(18), regarding maintenance of state financial support for special
education and related services, of subsection (a) of Section 1412 of
Title 20 of the United States Code, the state may not use funds paid
to it under Part B of the federal Individuals with Disabilities
Education Act (20 U.S.C. Sec. 1400 et seq.) to satisfy state-mandated
funding obligations to local educational agencies, including funding
based on pupil attendance or enrollment, or on inflation.
SEC. 55. Section 7579.5 of the Government Code is amended to read:
7579.5. (a) In accordance with subparagraph (B) of paragraph (2)
of subsection (b) of Section 1415 of Title 20 of the United States
Code, a local educational agency shall make reasonable efforts to
ensure the appointment of a surrogate parent not more than 30 days
after there is a determination by the local educational agency that a
child needs a surrogate parent. A local educational agency shall
appoint a surrogate parent for a child in accordance with Section
300.515 of Title 34 of the Code of Federal Regulations under one or
more of the following circumstances:
(1) (A) 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 the local educational agency for
special education and related services, or if the child already has a
valid individualized education program, (B) the court has
specifically limited the right of the parent or guardian to make
educational decisions for the child, and (C) the child has no
responsible adult to represent him or her pursuant to Section 361 or
726 of the Welfare and Institutions Code or Section 56055 of the
Education Code.
(2) No parent for the child can be identified.
(3) The local educational agency, after reasonable efforts, cannot
discover the location of a parent.
(b) 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 exists 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 if a
new appointment is necessary to ensure adequate representation of the
child.
(c) 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 special education and related services, including the
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.
(d) The surrogate parent is required to meet with the child at
least one time. He or she may also meet with the child on additional
occasions, attend the child's individualized education program
meetings, review the child's educational records, consult with
persons involved in the child's education, and 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) The surrogate parent shall comply with federal and state law
pertaining to the confidentiality of student records and information
and shall use discretion in the necessary sharing of the information
with appropriate persons for the purpose of furthering the interests
of the child.
(g) The surrogate parent may resign from his or her appointment
only after he or she gives notice to the local educational agency.
(h) The local educational agency shall terminate the appointment
of a surrogate parent if (1) the person is not properly performing
the duties of a surrogate parent or (2) the person has an interest
that conflicts with interests of the child entrusted to his or her
care.
(i) Individuals who would have a conflict of interest in
representing the child, as specified under federal regulations, may
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 that
the child has a free appropriate public education.
(j) 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 the
State Department of Education, the local educational agency, or any
other agency that is involved in the education or care of the child.
(1) A public agency authorized to appoint a surrogate parent under
this section may select a person who is an employee of a nonpublic
agency that only provides noneducational care for the child and who
meets the other standards of this section.
(2) A person who otherwise qualifies to be a surrogate parent
under this section is not an employee of the local educational agency
solely because he or she is paid by the local educational agency to
serve as a surrogate parent.
(k) The surrogate parent may represent the child until (1) the
child is no longer in need of special education, (2) the minor
reaches 18 years of age, unless the child chooses not to make
educational decisions for himself or herself, or is deemed by a court
to be incompetent, (3) another responsible adult is appointed to
make educational decisions for the minor, or (4) the right of the
parent or guardian to make educational decisions for the minor is
fully restored.
(l) 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.
(m) The State Department of Education shall develop a model
surrogate parent training module and manual that shall be made
available to local educational agencies.
(n) Nothing in this section may 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.
(o) If funding for implementation of this section is provided, it
may only be provided from Item 6110-161-0890 of Section 2.00 of the
annual Budget Act.
SEC. 56. Section 7579.6 is added to the Government Code, to read:
7579.6. (a) In accordance with subparagraph (A) of paragraph (2)
of subsection (b) of Section 1415 of Title 20 of the United States
Code, in the case of a child who is a ward of the state, the
surrogate parent described in Section 7579.5 may alternatively be
appointed by the judge overseeing the child's care provided that the
surrogate meets the requirements of Section 7579.5.
(b) In the case of an unaccompanied homeless youth as defined in
paragraph (6) of Section 725 of the federal McKinney-Vento Homeless
Assistance Act (42 U.S.C. Sec. 11434a(6)), the local educational
agency shall appoint a surrogate in accordance with Section 7579.5.
SEC. 57. The Legislature finds and declares that this act, while
protecting the rights of individuals with exceptional needs to
receive a free appropriate public education in the least restrictive
environment, does not set a higher standard of educating individuals
with exceptional needs than that established by federal law under the
Individuals with Disabilities Education Improvement Act of 2004
(P.L. 108-446).
SEC. 58. 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.
SEC. 59. This act is an urgency statute necessary for the
immediate preservation of the public peace, health, or safety within
the meaning of Article IV of the Constitution and shall go into
immediate effect. The facts constituting the necessity are:
In order to ensure that pupils with disabilities receive services,
to ensure that state law is in conformity with the federal
Individuals with Disabilities Education Act (20 U.S.C. Sec. 1400 et
seq.), and to ensure that California continues to receive federal
funding to pay for services provided to pupils with disabilities at
the earliest possible time, it is necessary that this act take effect
immediately.