BILL NUMBER: SB 121 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 14, 2012
AMENDED IN SENATE MAY 17, 2011
AMENDED IN SENATE APRIL 26, 2011
AMENDED IN SENATE MARCH 17, 2011
INTRODUCED BY Senator Liu
JANUARY 24, 2011
An act to amend Sections 48853, 48854, 56155.7,
56157, 56342.1, 56366, 56366.1, 56366.4, and
56366.9 , and 56366.10 of the Education
Code, to amend Section 7579.5 of the Government Code, and
to amend Sections 361 and 726 of the Welfare and Institutions Code,
relating to pupils.
LEGISLATIVE COUNSEL'S DIGEST
SB 121, as amended, Liu. Pupils: foster children: special
education.
Existing law requires a pupil who is placed in a licensed children'
s institution or foster family home to attend programs operated by
the local educational agency unless the pupil is entitled to remain
in his or her school of origin, the pupil has an individualized
education program requiring placement elsewhere, or the pupil's
parent or guardian, or other person holding the right to make
educational decisions for the pupil, determines that it is in the
best interests of the pupil to be placed in another educational
program.
This bill would require that, if the pupil's parent or guardian,
or other person holding the right to make educational decisions for
the pupil, makes that determination, he or she shall provide a
written statement to that effect to the local educational agency
and the juvenile court , as specified.
Existing law prohibits a licensed children's institution or
nonpublic, nonsectarian school or agency from requiring as a
condition of placement that educational authority for a child be
designated to that institution, school, or agency.
This bill would also prohibit a licensed institution or nonpublic,
nonsectarian school or agency from soliciting or in any way
requesting that a parent or person holding the right to make
educational decisions for a pupil transfer or delegate that authority
to an employee or person associated with a licensed children's
institution or nonpublic, nonsectarian school or agency.
Existing law provides that no local educational agency shall refer
an individual with exceptional needs residing in a licensed children'
s institution or foster family home to a nonpublic, nonsectarian
school unless the services required by the individualized education
program of the pupil can be ensured assured
, and that before a local educational agency places an
individual with exceptional needs in, or refers such an individual
to, a nonpublic, nonsectarian school, the school district, special
education local plan area, or county office of education shall
initiate and conduct a meeting to develop an individualized education
program for the pupil.
This bill would specify that these pupils shall not be referred
to, or placed in, a nonpublic, nonsectarian school unless their
individualized education programs specify that the placement is
appropriate. The bill would provide that, if the parent,
guardian, or person holding the right to make educational decisions
for the pupil decides to remove the pupil from public school and to
place the pupil in a nonpublic, nonsectarian school without the
required individualized education program, that person shall provide
a written statement that he or she has made that decision to the
local educational agency and the juvenile court, as specified.
This bill would also specify that the meeting that is
required to take place to develop an individualized education program
shall be conducted pursuant to specified provisions. To the extent
this bill would require local educational agencies to perform
additional duties, this bill would impose a state-mandated local
program.
Existing law requires that the master contract for nonpublic,
nonsectarian school or agency services, in the case of a nonpublic,
nonsectarian school that is owned by, operated by, or associated
with, a licensed children's institution, include a method for
evaluating whether the school is in compliance with specified
statutory mandates.
This bill would expand those statutory mandates to include those
prohibiting a licensed children's institution or nonpublic,
nonsectarian school or agency from requiring as a condition of
placement that educational authority for a child be designated to
that institution, school, or agency; prohibiting a licensed
institution or nonpublic, nonsectarian school or agency from
soliciting or in any way requesting that a parent or person holding
the right to make educational decisions for a pupil transfer or
delegate that authority to an employee or person associated with a
licensed children's institution or nonpublic, nonsectarian school or
agency; and prohibiting a licensed children's institution from
requiring that a child be identified as an individual with
exceptional needs as a condition of admission or residency.
Existing law requires the Superintendent of Public Instruction to
conduct an investigation of a nonpublic, nonsectarian school or
agency if he or she receives evidence of a significant deficiency in
the quality of educational services provided, a violation of law, or
noncompliance with policies, as specified.
This bill would add to the violations of law that the
Superintendent is required to investigate provisions prohibiting a
licensed children's institution or nonpublic, nonsectarian school or
agency from requiring as a condition of placement that educational
authority for a child be designated to it; prohibiting a licensed
institution or nonpublic, nonsectarian school or agency from
soliciting or in any way requesting that a parent or person holding
the right to make educational decisions for a pupil transfer or
delegate that authority to an employee or person associated with it;
requiring a licensed children's institution or nonpublic,
nonsectarian school or agency to report to the local educational
agency the educational progress demonstrated by an individual with
exceptional needs placed there by the local educational agency;
prohibiting an individual who is an employee of, or who is associated
with, a licensed children's institution or an agency owned by,
operated by, or associated with, a licensed children's institution or
who is an employee of, or who is associated with, a nonpublic,
nonsectarian school, from serving as a surrogate parent, or a
surrogate parent from transferring or delegating his or her authority
to such an individual; and prohibiting an individual who is an
employee of, or who is associated with, a licensed children's
institution or an agency owned by, operated by, or associated with, a
licensed children's institution or who is an employee of, or who is
associated with, a nonpublic, nonsectarian school, from representing
the interests of a child residing in a licensed children's
institution, as specified.
Existing law requires the Superintendent to monitor the
facilities, the educational environment, and the quality of the
educational program of an existing certified nonpublic, nonsectarian
school or agency on a three-year cycle, as specified.
This bill would also require the Superintendent to monitor the
certified nonpublic, nonsectarian school's or agency's compliance
with all provisions of the master contract; certified requirements;
provisions prohibiting a licensed children's institution or
nonpublic, nonsectarian school or agency from requiring as a
condition of placement that educational authority for a child be
designated to it; prohibiting a licensed institution or nonpublic,
nonsectarian school or agency from soliciting or in any way
requesting that a parent or person holding the right to make
educational decisions for a pupil transfer or delegate that authority
to an employee or person associated with it; prohibiting a licensed
children's institution from requiring that a child be identified as
an individual with exceptional needs as a condition of admission or
residency; and prohibiting a licensed children's institution form
requiring as condition of residential placement that it provide the
appropriate educational programs to individuals with exceptional
needs residing there through a nonpublic, nonsectarian school or
agency owned, operated by, or associated with it, from referring or
placing a pupil in a nonpublic, nonsectarian school, or from
soliciting or in any way requesting that a parent or person holding
the right to make educational decisions for the pupil transfer or
delegate that authority to an employee or person associated with it.
Existing law provides that the Superintendent may revoke or
suspend the certification of a nonpublic, nonsectarian school for
specified reasons.
This bill would add to the reasons that the Superintendent may
revoke or suspend the certification of a nonpublic, nonsectarian
school failure to comply with provisions prohibiting a licensed
children's institution or nonpublic, nonsectarian school or agency
from requiring as a condition of placement that educational authority
for a child be designated to it; prohibiting a licensed institution
or nonpublic, nonsectarian school or agency from soliciting or in any
way requesting that a parent or person holding the right to make
educational decisions for a pupil transfer or delegate that authority
to an employee or person associated with it; prohibiting a licensed
children's institution from requiring that a child be identified as
an individual with exceptional needs as a condition of admission or
residency; prohibiting a licensed children's institution from
requiring as condition of residential placement that it provide the
appropriate educational programs to individuals with exceptional
needs residing there through a nonpublic, nonsectarian school or
agency owned by, operated by, or associated with it from referring or
placing a pupil in a nonpublic, nonsectarian school; or from
soliciting or in any way requesting that a parent or person holding
the right to make educational decisions for the pupil transfer or
delegate that authority to an employee or person associated with it.
Existing law prohibits a licensed children's institution from
requiring as a condition of residential placement that it
provide the appropriate educational programs to individuals with
exceptional needs residing there through a nonpublic, nonsectarian
school or agency owned, operated by, or associated with ,
it.
This bill would also prohibit a licensed children's institution
from referring or placing a pupil in a nonpublic, nonsectarian school
, and from soliciting or in any way requesting that a
parent or person holding the right to make educational decisions for
a pupil residing there, transfer or delegate that authority to an
employee or person associated with it .
Existing law requires a nonpublic, nonsectarian school that
provides special education and related services to an individual with
exceptional needs to certify in writing to the Superintendent that
it meets specified requirements.
This bill would expand the list of certified requirements to
include existence of and adherence to written policies that state
that it will not require as a condition of placement that educational
authority for a pupil be designated to that institution, school, or
agency and that it will not solicit or in any way request that a
parent or person holding the right to make educational decisions for
the pupil transfer or delegate that authority to one if its employees
or persons associated with it.
Existing law authorizes a local educational agency to appoint a
surrogate parent, as specified, who shall serve as the child's parent
and shall have the rights relative to the child's education of a
parent, may represent the child in matters relating to special
education and related services, and may provide written consent to an
individualized education program including nonemergency medical
services, mental health treatment services, and occupational or
physical therapy services, as specified.
This bill would prohibit an individual who is an employee of or
who is associated with a licensed children's institution or an agency
owned by, operated by, or associated with, a licensed children's
institution or who is an employee of, or who is associated with, a
nonpublic, nonsectarian school from serving as a surrogate parent, or
a surrogate parent from transferring or delegating his or her
authority to such an individual. The bill would also prohibit an
individual who is an employee of, or who is associated with, a
licensed children's institution or an agency owned by, operated by,
or associated with, a licensed children's institution or who is an
employee of, or who is associated with, a nonpublic, nonsectarian
school from representing the interests of a child residing in a
licensed children's institution, as specified.
Existing law authorizes the court to limit the right of the parent
or guardian to make educational decisions for a child and at the
same time appoint a responsible adult to make educational decisions
for the child if a minor is adjudged to be a ward or dependent child
of the court. However, existing law also provides that an individual
who would have a conflict of interest in representing the child may
not be appointed to make educational decisions.
This bill would prohibit a responsible adult appointed by the
court to make educational decisions for the child from delegating or
transferring the right to make educational decisions for the child to
any other individual, organization, agency, or entity. The bill
would also prohibit an individual who is an employee of, or who is
associated with, a licensed children's institution, or an agency
owned by, operated by, or associated with, a licensed children's
institution or who is an employee of, or who is associated with, a
nonpublic, nonsectarian school from being appointed to make
educational decisions for the child.
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, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 48853 of the Education Code is amended to read:
48853. (a) A pupil described in subdivision (a) of Section
48853.5 who is placed in a licensed children's institution or foster
family home shall attend programs operated by the local educational
agency, unless one of the following applies:
(1) The pupil is entitled to remain in his or her school of origin
pursuant to paragraph (1) of subdivision (d) of Section 48853.5.
(2) The pupil has an individualized education program requiring
placement in a nonpublic, nonsectarian school or agency, or in
another local educational agency.
(3) The parent or guardian, or other person holding the right to
make educational decisions for the pupil pursuant to Section 361 or
726 of the Welfare and Institutions Code or Section 56055, determines
that it is in the best interests of the pupil to be placed in
another educational program, in which case the parent or guardian or
other person holding the right to make educational decisions for the
pupil shall provide a written statement that he or she has made that
determination to the local educational agency and the
juvenile court . This statement shall include a declaration
that, prior to before making the
decision, the local educational agency informed the holder
of parent, guardian, or other person holding the
right to make educational decisions for the pupil, in writing, of
all of the following:
(A) The pupil has a right to attend a regular public school in the
least restrictive environment.
(B) The alternate education program is a special education
program, if applicable.
(C) The decision to unilaterally remove the pupil from the regular
public school and to place the pupil in an alternate education
program may not be financed by the local educational agency.
(D) Any attempt to seek reimbursement for the alternate program
will be at the expense of the holder of
parent, guardian, or other person holding the right to make
educational decisions for the pupil.
(b) Before any decision is made to place a pupil in a juvenile
court school as defined by Section 48645.1, a community school as
described in Sections 1981 and 48660, or other alternative
educational setting, the parent or guardian, or person holding the
right to make educational decisions for the pupil pursuant to Section
361 or 726 of the Welfare and Institutions Code or Section 56055,
shall first consider placement in the regular public school.
(c) If any dispute arises as to the school placement of a pupil
subject to this section, the pupil has the right to remain in his or
her school of origin, as defined in subdivision (e) of Section
48853.5, pending resolution of the dispute. The dispute shall be
resolved in accordance with the existing dispute resolution process
available to any pupil served by the local educational agency.
(d) This section does not supersede other laws that govern pupil
expulsion.
(e) This section does not supersede any other law governing the
educational placement in a juvenile court school, as defined by
Section 48645.1, of a pupil detained in a county juvenile hall, or
committed to a county juvenile ranch, camp, forestry camp, or
regional facility.
(f) Foster children living in emergency shelters, as referenced in
the federal McKinney-Vento Homeless Assistance Act (42 U.S.C. Sec.
11301 et seq.), may receive educational services at the emergency
shelter as necessary for short periods of time for either of the
following reasons:
(1) For health and safety emergencies.
(2) To provide temporary, special, and supplementary services to
meet the child's unique needs if a decision regarding whether it is
in the child's best interests to attend the school of origin cannot
be made promptly, it is not practical to transport the child to the
school of origin, and the child would otherwise not receive
educational services.
The educational services may be provided at the shelter pending a
determination by the person holding the right regarding the
educational placement of the child.
(g) All educational and school placement decisions shall be made
to ensure that the child is placed in the least restrictive
educational programs and has access to academic resources, services,
and extracurricular and enrichment activities that are available to
all pupils. In all instances, educational and school placement
decisions shall be based on the best interests of the child.
SEC. 2. Section 48854 of the Education Code is
amended to read:
48854. A licensed children's institution or nonpublic,
nonsectarian school, or agency may not require as a condition of
placement that educational authority for a child, as defined in
subdivision (b) of Section 48859, be designated to that institution,
school, or agency. A licensed children's institution or nonpublic,
nonsectarian school or agency shall not solicit or in any way request
that a parent or person holding the right to make educational
decisions for a pupil pursuant to Section 361 or 726 of the Welfare
and Institutions Code transfer or delegate that authority to an
employee or person associated with a licensed children's institution
or nonpublic, nonsectarian school or agency.
SEC. 3. SEC. 2. Section 56155.7 of
the Education Code is amended to read:
56155.7. A licensed children's institution shall not require that
a child be identified as an individual with exceptional needs as a
condition of admission or residency.
SEC. 4. SEC. 3. Section 56157 of the
Education Code is amended to read:
56157. (a) In providing appropriate programs to individuals with
exceptional needs residing in licensed children's institutions or
foster family homes, the local educational agency shall first
consider services in programs operated by public education agencies
for individuals with exceptional needs. If those programs are not
appropriate, special education and related services shall be provided
by contract with a nonpublic, nonsectarian school.
(b) (1) An individual with exceptional needs residing in a
licensed children's institution or foster family home shall not be
referred to, or placed in, a nonpublic, nonsectarian school unless
his or her individualized education program specifies that the
placement is appropriate. If the parent, guardian, or person
holding the right to make educational decisions for the pupil
decides to remove the pupil from public school and to place the pupil
in a nonpublic, nonsectarian school without the required
individualized education program, that person shall provide a written
statement that he or she has made that decision to the local
educational agency and the juvenile court. This statement shall
include a declaration that, prior to making the decision, the local
educational agency informed the holder of the right to make
educational decisions for the pupil, in writing, of all of the
following:
(A) The pupil has a right to attend a regular public school in the
least restrictive environment.
(B) The alternate education program is a special education
program, if applicable.
(C) The decision to unilaterally remove the pupil from the regular
public school and to place the pupil in an alternate education
program may not be financed by the local educational agency.
(D) Any attempt to seek reimbursement for the alternate program
will be at the expense of the holder of the right to make educational
decisions for the pupil.
(2) If special education and related services are provided by
contract with a nonpublic, nonsectarian school, or with a licensed
children's institution under this article, the terms of the contract
shall be developed in accordance with the provisions of Section
56366.
(c) If an individual with exceptional needs residing in a licensed
children's institution or foster family home is placed in a
nonpublic, nonsectarian school, the local educational agency that
made the placement shall conduct an annual evaluation, in accordance
with federal law as part of the annual individualized education
program process, of whether the placement is the least restrictive
environment that is appropriate to meet the pupil's needs.
(d) If an individual with exceptional needs residing in a licensed
children's institution or foster family home is placed in a
nonpublic, nonsectarian school, the nonpublic, nonsectarian school
shall report to the local educational agency that made the placement,
on a quarterly or trimester basis, as appropriate, the educational
progress demonstrated by the individual with exceptional needs
towards the attainment of the goals and objectives specified in the
individual's individualized education program. Pursuant to federal
law, no local educational agency shall refer a pupil to a nonpublic,
nonsectarian school unless the services required by the
individualized education program of the pupil can be ensured.
SEC. 5. SEC. 4. Section 56342.1 of
the Education Code is amended to read:
56342.1. Before a local educational agency places an individual
with exceptional needs in, or refers an individual to, a nonpublic,
nonsectarian school, the district, special education local plan area,
or county office of education shall initiate and conduct a meeting
pursuant to this chapter to develop an individualized education
program in accordance with Sections 56341.1 and 56345 and in
accordance with Section 300.325(a) of Title 34 of the Code of Federal
Regulations. An individual with exceptional needs shall not be
referred to, or placed in, a nonpublic, nonsectarian school unless
his or her individualized education program specifies that the
placement is appropriate. If the parent, guardian, or person
holding the right to make educational decisions for the pupil
decides to remove the pupil from public school and to place the pupil
in a nonpublic, nonsectarian school without the required
individualized education program, that person shall provide a written
statement that he or she has made that determination to the local
educational agency and the juvenile court. This statement shall
include a declaration that, prior to making the decision, the local
educational agency informed the holder of the right to make
educational decisions for the pupil, in writing, of all of the
following:
(a) The pupil has a right to attend a regular public school in the
least restrictive environment.
(b) The alternate education program is a special education
program, if applicable.
(c) The decision to unilaterally remove the pupil from the regular
public school and to place the pupil in an alternate education
program may not be financed by the local educational agency.
(d) Any attempt to seek reimbursement for the alternate program
will be at the expense of the holder of the right to make educational
decisions for the pupil.
SEC. 6. Section 56366 of the Education Code is
amended to read:
56366. It is the intent of the Legislature that the role of a
nonpublic, nonsectarian school or agency shall be maintained and
continued as an alternative special education service available to a
local educational agency and parents.
(a) The master contract for nonpublic, nonsectarian school or
agency services shall be developed in accordance with the following
provisions:
(1) The master contract shall specify the general administrative
and financial agreements, including teacher-to-pupil ratios, between
the nonpublic, nonsectarian school or agency and the local
educational agency to provide the special education and designated
instruction and services, as well as transportation specified in each
pupil's individualized education program. The administrative
provisions of the contract also shall include procedures for
recordkeeping and documentation, and the maintenance of school
records by the contracting local educational agency to ensure that
appropriate high school graduation credit is received by each pupil.
The contract may allow for partial or full-time attendance at the
nonpublic, nonsectarian school.
(2) (A) The master contract shall include an individual services
agreement for each pupil placed by a local educational agency that
will be negotiated for the length of time for which nonpublic,
nonsectarian school or agency special education and designated
instruction and services are specified in the pupil's individualized
education program.
(B) The master contract shall include a description of the process
being utilized by the local educational agency to oversee and
evaluate placements in nonpublic, nonsectarian schools, as required
by federal law. This description shall include a method for
evaluating whether each pupil is making appropriate educational
progress. At least once every year, the local educational agency
shall do all of the following and, to the extent possible, the
following shall be conducted as part of the development and provision
of an individualized education program:
(i) Evaluate the educational progress of each pupil placed in a
nonpublic, nonsectarian school, including evaluation of all state
assessment results pursuant to the requirements of Section 52052.
(ii) Consider whether or not the needs of the pupil continue to be
best met at the nonpublic, nonsectarian school and whether changes
to the individualized education program of the pupil are necessary,
including whether the pupil may be transitioned to a public school
setting. This consideration shall be made at the meeting required by
subdivision (d) of Section 56343.
(C) In the case of a nonpublic, nonsectarian school that is owned
by, operated by, or associated with, a licensed children's
institution, the master contract shall include a method for
evaluating whether the nonpublic, nonsectarian school is in
compliance with the mandates set forth in Sections 48854, 56155.7,
and 56366.9 of this code and subdivision (b) of Section 1501.1 of the
Health and Safety Code.
(3) (A) Changes in educational instruction, services, or placement
provided under contract may only be made on the basis of revisions
to a pupil's individualized education program.
(B) At any time during the term of the contract or individual
services agreement, the parent, the nonpublic, nonsectarian school or
agency, or the local educational agency may request a review of a
pupil's individualized education program by the individualized
education program team. Changes in the administrative or financial
agreements of the master contract that do not alter the individual
services agreement that outlines each pupil's educational
instruction, services, or placement may be made at any time during
the term of the contract as mutually agreed by the nonpublic,
nonsectarian school or agency and the local educational agency.
(4) The master contract or individual services agreement may be
terminated for cause. The cause shall not be the availability of a
public class initiated during the period of the contract unless the
parent agrees to the transfer of the pupil to a public school
program. To terminate the contract either party shall give 20 days'
notice.
(5) The nonpublic, nonsectarian school or agency shall provide all
services specified in an individualized education program, unless
the nonpublic, nonsectarian school or agency and the local
educational agency agree otherwise in the contract or individual
services agreement.
(6) Related services provided pursuant to a nonpublic,
nonsectarian agency master contract shall only be provided during the
period of a pupil's regular or extended school year program, or
both, unless otherwise specified by the pupil's individualized
education program.
(7) The nonpublic, nonsectarian school or agency shall report
attendance of pupils receiving special education and designated
instruction and services, as defined by Section 46307, for purposes
of submitting a warrant for tuition to each contracting local
educational agency.
(8) (A) A nonpublic, nonsectarian school is subject to the
alternative accountability system developed pursuant to Section 52052
in the same manner as public schools and each pupil placed in the
nonpublic, nonsectarian school by a local educational agency shall be
tested by qualified staff of the nonpublic, nonsectarian school in
accordance with that accountability program. The test results shall
be reported by the nonpublic, nonsectarian school to the department.
(B) Beginning with the 2006-07 school year testing cycle, each
nonpublic, nonsectarian school shall determine its STAR testing
period subject to subdivisions (b) and (c) of Section 60640. The
nonpublic, nonsectarian school shall determine this period based on
completion of 85 percent of the instructional year at that nonpublic,
nonsectarian school, plus and minus 10 days, resulting in a 21-day
period. Each nonpublic, nonsectarian school shall notify the district
of residence of a pupil enrolled in the school of its testing
period. Staff at the nonpublic, nonsectarian school who administer
the assessments shall attend the regular testing training sessions
provided by the district of residence. If staff from a nonpublic,
nonsectarian school have received training from one local educational
agency, that training will be sufficient for all local educational
agencies that send pupils to the nonpublic, nonsectarian school. The
district of residence shall order testing materials for its pupils
that have been placed in the nonpublic, nonsectarian school. The
board shall adopt regulations to facilitate the distribution of and
collection of testing materials.
(9) With respect to a nonpublic, nonsectarian school, the school
shall prepare a school accountability report card in accordance with
Section 33126.
(b) The master contract or individual services agreement shall not
include special education transportation provided through the use of
services or equipment owned, leased, or contracted by a local
educational agency for pupils enrolled in the nonpublic, nonsectarian
school or agency unless provided directly or subcontracted by that
nonpublic, nonsectarian school or agency.
The superintendent shall withhold 20 percent of the amount
apportioned to a local educational agency for costs related to the
provision of nonpublic, nonsectarian school or agency placements if
the superintendent finds that the local educational agency is in
noncompliance with this subdivision. This amount shall be withheld
from the apportionments in the fiscal year following the
superintendent's finding of noncompliance. The superintendent shall
take other appropriate actions to prevent noncompliant practices from
occurring and report to the Legislature on those actions.
(c) (1) If a pupil is enrolled in a nonpublic, nonsectarian school
or agency with the approval of the local educational agency prior to
agreement to a contract or individual services agreement, the local
educational agency shall issue a warrant, upon submission of an
attendance report and claim, for an amount equal to the number of
creditable days of attendance at the per diem tuition rate agreed
upon prior to the enrollment of the pupil. This provision shall be
allowed for 90 days during which time the contract shall be
consummated.
(2) If after 60 days the master contract or individual services
agreement has not been finalized as prescribed in paragraph (1) of
subdivision (a), either party may appeal to the county superintendent
of schools, if the county superintendent is not participating in the
local plan involved in the nonpublic, nonsectarian school or agency
contract, or the superintendent, if the county superintendent is
participating in the local plan involved in the contract, to
negotiate the contract. Within 30 days of receipt of this appeal, the
county superintendent or the superintendent, or his or her designee,
shall mediate the formulation of a contract, which shall be binding
upon both parties.
(d) A master contract for special education and related services
provided by a nonpublic, nonsectarian school or agency may not be
authorized under this part, unless the school or agency has been
certified as meeting those standards relating to the required special
education and specified related services and facilities for
individuals with exceptional needs. The certification shall result in
the school or agency receiving approval to educate pupils under this
part for a period no longer than 18 months from the date of the
initial approval.
(e) By September 30, 1998, the procedures, methods, and
regulations for the purposes of contracting for nonpublic,
nonsectarian school and agency services pursuant to this section and
for reimbursement pursuant to Section 56836.20 shall be developed by
the superintendent in consultation with statewide organizations
representing providers of special education and designated
instruction and services. The regulations shall be established by
rules and regulations issued by the board.
SEC. 7. Section 56366.1 of the Education Code
is amended to read:
56366.1. (a) A nonpublic, nonsectarian school or agency that
seeks certification shall file an application with the Superintendent
on forms provided by the department, and include the following
information on the application:
(1) A description of the special education and designated
instruction and services provided to individuals with exceptional
needs if the application is for nonpublic, nonsectarian school
certification.
(2) A description of the designated instruction and services
provided to individuals with exceptional needs if the application is
for nonpublic, nonsectarian agency certification.
(3) A list of appropriately qualified staff, a description of the
credential, license, or registration that qualifies each staff member
rendering special education or designated instruction and services
to do so, and copies of their credentials, licenses, or certificates
of registration with the appropriate state or national organization
that has established standards for the service rendered.
(4) An annual operating budget.
(5) Affidavits and assurances necessary to comply with all
applicable federal, state, and local laws and regulations that
include criminal record summaries required of all nonpublic,
nonsectarian school or agency personnel having contact with minor
children under Section 44237.
(b) (1) The applicant shall provide the special education local
plan area in which the applicant is located with the written
notification of its intent to seek certification or renewal of its
certification. The applicant shall submit on a form, developed by the
department, a signed verification by local educational agency
representatives that they have been notified of the intent to certify
or renew certification. The verification shall include a statement
that representatives of the local educational agency for the area in
which the applicant is located have had the opportunity to review the
application at least 60 calendar days prior to submission of an
initial application to the Superintendent, or at least 30 calendar
days prior to submission of a renewal application to the
Superintendent. The signed verification shall provide assurances that
local educational agency representatives have had the opportunity to
provide input on all required components of the application.
(2) If the applicant has not received a response from the local
educational agency 60 calendar days from the date of the return
receipt for initial applications or 30 calendar days from the date of
the return receipt for renewal applications, the applicant may file
the application with the Superintendent. A copy of the return receipt
shall be included with the application as verification of
notification efforts to the local educational agency.
(3) The department shall mail renewal application materials to
certified nonpublic, nonsectarian schools and agencies at least 120
days prior to the date their current certification expires.
(c) If the applicant operates a facility or program on more than
one site, each site shall be certified.
(d) If the applicant is part of a larger program or facility on
the same site, the Superintendent shall consider the effect of the
total program on the applicant. A copy of the policies and standards
for the nonpublic,
nonsectarian school or agency and the larger program shall be
available to the Superintendent.
(e) Prior to certification, the Superintendent shall conduct an
onsite review of the facility and program for which the applicant
seeks certification. The Superintendent may be assisted by
representatives of the special education local plan area in which the
applicant is located and a nonpublic, nonsectarian school or agency
representative who does not have a conflict of interest with the
applicant. The Superintendent shall conduct an additional onsite
review of the facility and program within three years of the
effective date of the certification, unless the Superintendent
conditionally certifies the school or agency or unless the
Superintendent receives a formal complaint against the school or
agency. In the latter two cases, the Superintendent shall conduct an
onsite review at least annually.
(f) The Superintendent shall make a determination on an
application within 120 days of receipt of the application and shall
certify, conditionally certify, or deny certification to the
applicant. If the Superintendent fails to take one of these actions
within 120 days, the applicant is automatically granted conditional
certification for a period terminating on August 31 of the current
school year. If certification is denied, the Superintendent shall
provide reasons for the denial. The Superintendent may certify the
school or agency for a period of not longer than one year.
(g) Certification becomes effective on the date the nonpublic,
nonsectarian school or agency meets all the application requirements
and is approved by the Superintendent. Certification may be
retroactive if the school or agency met all the requirements of this
section on the date the retroactive certification is effective.
Certification expires on December 31 of the terminating year.
(h) The Superintendent annually shall review the certification of
each nonpublic, nonsectarian school and agency. For this purpose, a
certified school or agency annually shall update its application
between August 1 and October 31, unless the board grants a waiver
pursuant to Section 56101. The Superintendent may conduct an onsite
review as part of the annual review.
(i) (1) The Superintendent shall conduct an investigation of a
nonpublic, nonsectarian school or agency onsite at any time without
prior notice if there is substantial reason to believe that there is
an immediate danger to the health, safety, or welfare of a child. The
Superintendent shall document the concern, and submit it to the
nonpublic, nonsectarian school or agency at the time of the onsite
investigation. The Superintendent shall require a written response to
any noncompliance or deficiency found.
(2) With respect to a nonpublic, nonsectarian school, the
Superintendent shall conduct an investigation, which may include an
unannounced onsite visit, if the Superintendent receives evidence of
a significant deficiency in the quality of educational services
provided, a violation of Section 48854, Section 56155.7, subdivision
(d) of Section 56157, or Section 56366.9 of this code, or subdivision
(j) or (n) of Section 7579.5 of the Government Code, or
noncompliance with the policies expressed by subdivision (b) of
Section 1501 of the Health and Safety Code by the nonpublic,
nonsectarian school. The Superintendent shall document the complaint
and the results of the investigation, and shall provide copies of the
documentation to the complainant, the nonpublic, nonsectarian
school, and the contracting local educational agency.
(3) Violations or noncompliance documented pursuant to paragraph
(1) or (2) shall be reflected in the status of the certification of
the school, at the discretion of the Superintendent, pending an
approved plan of correction by the nonpublic, nonsectarian school.
The department shall retain for a period of 10 years all violations
pertaining to certification of the nonpublic, nonsectarian school or
agency.
(j) The Superintendent shall monitor the facilities, the
educational environment, and the quality of the educational program,
including the teaching staff, the credentials authorizing service,
the standards-based core curriculum being employed, and the
standard-focused instructional materials used, and compliance with
all provisions of the master contract, the assurances set forth in
Section 56366.10, and Sections 48854, 56155.7, and 56366.9 of an
existing certified nonpublic, nonsectarian school or agency on a
three-year cycle, as follows:
(1) The nonpublic, nonsectarian school or agency shall complete a
self-review in year one.
(2) The Superintendent shall conduct an onsite review of the
nonpublic, nonsectarian school or agency in year two.
(3) The Superintendent shall conduct a followup visit to the
nonpublic, nonsectarian school or agency in year three.
(k) (1) Notwithstanding any other law, the Superintendent shall
not certify a nonpublic, nonsectarian school or agency that proposes
to initiate or expand services to pupils currently educated in the
immediate prior fiscal year in a juvenile court program, community
school pursuant to Section 56150, or other nonspecial education
program, including independent study or adult school, or both, unless
the nonpublic, nonsectarian school or agency notifies the county
superintendent of schools and the special education local plan area
in which the proposed new or expanded nonpublic, nonsectarian school
or agency is located of its intent to seek certification.
(2) The notification shall occur no later than the December 1
prior to the new fiscal year in which the proposed or expanding
school or agency intends to initiate services. The notice shall
include the following:
(A) The specific date upon which the proposed nonpublic,
nonsectarian school or agency is to be established.
(B) The location of the proposed program or facility.
(C) The number of pupils proposed for services, the number of
pupils currently served in the juvenile court, community school, or
other nonspecial education program, the current school services
including special education and related services provided for these
pupils, and the specific program of special education and related
services to be provided under the proposed program.
(D) The reason for the proposed change in services.
(E) The number of staff who will provide special education and
designated instruction and services and hold a current valid
California credential or license in the service rendered.
(3) In addition to the requirements in subdivisions (a) to (f),
inclusive, the Superintendent shall require and consider the
following in determining whether to certify a nonpublic, nonsectarian
school or agency as described in this subdivision:
(A) A complete statement of the information required as part of
the notice under paragraph (1).
(B) Documentation of the steps taken in preparation for the
conversion to a nonpublic, nonsectarian school or agency, including
information related to changes in the population to be served and the
services to be provided pursuant to each pupil's individualized
education program.
(4) Notwithstanding any other law, the certification becomes
effective no earlier than July 1 if the school or agency provided the
notification required pursuant to paragraph (1).
( l ) (1) Notwithstanding any other law, the
Superintendent shall not certify or renew the certification of a
nonpublic, nonsectarian school or agency, unless all of the following
conditions are met:
(A) The entity operating the nonpublic, nonsectarian school or
agency maintains separate financial records for each entity that it
operates, with each nonpublic, nonsectarian school or agency
identified separately from any licensed children's institution that
it operates.
(B) The entity submits an annual budget that identifies the
projected costs and revenues for each entity, and demonstrates that
the rates to be charged are reasonable to support the operation of
the entity.
(C) The entity submits an entitywide annual audit that identifies
its costs and revenues, by entity, in accordance with generally
accepted accounting and auditing principles. The audit shall clearly
document the amount of moneys received and expended on the education
program provided by the nonpublic, nonsectarian school.
(D) The relationship between various entities operated by the same
entity are documented, defining the responsibilities of the
entities. The documentation shall clearly identify the services to be
provided as part of each program: for example, the residential or
medical program, the mental health program, or the educational
program. The entity shall not seek funding from a public agency for a
service, either separately or as part of a package of services, if
the service is funded by another public agency, either separately or
as part of a package of services.
(2) For purposes of this section, "licensed children's institution"
has the same meaning as it is defined by Section 56155.5.
(m) The school or agency shall be charged a reasonable fee for
certification. The Superintendent may adjust the fee annually
commensurate with the statewide average percentage inflation
adjustment computed for revenue limits of unified school districts
with greater than 1,500 units of average daily attendance if the
percentage increase is reflected in the district revenue limit for
inflation purposes. For purposes of this section, the base fee shall
be the following:
(1) 1-5 pupils................ $ 300
(2) 6-10 pupils............... 500
(3) 11-24 pupils.............. 1,000
(4) 25-75 pupils.............. 1,500
(5) 76 pupils and over........ 2,000
The school or agency shall pay this fee when it applies for
certification and when it updates its application for annual renewal
by the Superintendent. The Superintendent shall use these fees to
conduct onsite reviews, which may include field experts. No fee shall
be refunded if the application is withdrawn or is denied by the
Superintendent.
(n) (1) Notwithstanding any other law, only those nonpublic,
nonsectarian schools and agencies that provide special education and
designated instruction and services utilizing staff who hold a
certificate, permit, or other document equivalent to that which staff
in a public school are required to hold in the service rendered are
eligible to receive certification. Only those nonpublic, nonsectarian
schools or agencies located outside of California that employ staff
who hold a current valid credential or license to render special
education and related services as required by that state shall be
eligible to be certified.
(2) The board shall develop regulations to implement this
subdivision.
(o) In addition to meeting the standards adopted by the board, a
nonpublic, nonsectarian school or agency shall provide written
assurances that it meets all applicable standards relating to fire,
health, sanitation, and building safety.
SEC. 8. Section 56366.4 of the Education Code
is amended to read:
56366.4. (a) The Superintendent may revoke or suspend the
certification of a nonpublic, nonsectarian school or agency for any
of the following reasons:
(1) Violation of an applicable state or federal rule or
regulation, or aiding, abetting, or permitting the violation of an
applicable state or federal rule or regulation.
(2) Falsification or intentional misrepresentation of an element
of the application, pupil records, or program presented for
certification purposes.
(3) Conduct in the operation or maintenance of the nonpublic,
nonsectarian school or agency that is harmful to the health, welfare,
or safety of an individual with exceptional needs.
(4) Failure to comply with a provision in the contract with the
local educational entity.
(5) Failure to notify the department in writing of any of the
following within 45 days of the occurrence:
(A) Changes in credentialed, licensed, or registered staff who
render special education and related services, ownership, management,
or control of the nonpublic, nonsectarian school or agency.
(B) Major modification or relocation of facilities.
(C) Significant modification of the nonpublic, nonsectarian school
or agency program.
(6) Failure to implement recommendations and compliance
requirements following an onsite review of the school or agency.
(7) Failure to provide appropriate services, supplies, equipment,
or facilities for a pupil as required in his or her individualized
education program.
(8) Failure to notify the Superintendent in writing within 10 days
of the revocation or suspension of a license or permit, including,
but not limited to, a residential care license, business license, or
other required license or permit.
(9) Failure to implement a pupil's individualized education
program.
(10) Failure to notify the Superintendent in writing within 10
days of the death of a pupil or any other individual of unnatural
causes within the school or agency, including the circumstances
surrounding the death and appropriate preventative measures being
taken or recommended.
(11) Failure to comply with Sections 48854, 56155.7, and 56366.9.
(b) The Superintendent shall notify contracting local educational
agencies and the special education local plan area in which the
nonpublic, nonsectarian school or agency is located of the
determination to suspend or revoke state certification.
(c) If the Superintendent determines that a nonpublic,
nonsectarian school or agency has violated the certification
requirements pursuant to this section and revokes the certification,
the nonpublic, nonsectarian school or agency; the site administrator,
business, organization, or entity involved in the administration of
the nonpublic, nonsectarian school or agency whose certification was
revoked; and the site administrator, business, organization, or
entity whose nonpublic, nonsectarian school or agency certification
was revoked at any time previously, shall not be eligible to apply
for recertification of the school or agency for two full years from
the date of revocation.
SEC. 9. SEC. 5. Section 56366.9 of
the Education Code is amended to read:
56366.9. A licensed children's institution at which individuals
with exceptional needs reside shall not require as a condition of
residential placement that it provide the appropriate educational
programs to those individuals through a nonpublic, nonsectarian
school or agency owned, operated by, or associated with, a licensed
children's institution. Those services may only be provided if the
special education local plan area determines that appropriate public
alternative educational programs are not available. A licensed
children's institution shall not refer a pupil to, or place a pupil
in, a nonpublic, nonsectarian school. A licensed children's
institution or nonpublic, nonsectarian school or agency shall not
solicit or in any way request that a parent or person holding the
right to make educational decisions for the pupil pursuant to Section
361 or 726 of the Welfare and Institutions Code transfer or delegate
that authority to an employee or person associated with either the
licensed children's institution or a nonpublic, nonsectarian school
or agency owned by, operated by, or associated with, a licensed
children's institution.
SEC. 10. Section 56366.10 of the Education Code
is amended to read:
56366.10. In addition to the certification requirements set forth
in Sections 56366 and 56366.1, a nonpublic, nonsectarian school that
provides special education and related services to an individual
with exceptional needs shall certify in writing to the Superintendent
that it meets all of the following requirements:
(a) It will not accept a pupil with exceptional needs if it cannot
provide or ensure the provision of the services outlined in the
pupil's individualized education program.
(b) Pupils have access to the following educational materials,
services, and programs that are consistent with each pupil's
individualized education program:
(1) (A) For kindergarten and grades 1 to 8, inclusive,
state-adopted, standards-based, core curriculum and instructional
materials, including technology-based materials as defined in
subdivision (m) of Section 60010.
(B) For grades 9 to 12, inclusive, standards-based, core
curriculum and instructional materials, including technology-based
materials as defined in subdivision (m) of Section 60010, used by any
local educational agency that contracts with the nonpublic,
nonsectarian school.
(2) College preparation courses.
(3) Extracurricular activities, such as art, sports, music, and
academic clubs.
(4) Career preparation and vocational training, consistent with
transition plans pursuant to state and federal law.
(5) Supplemental assistance, including individual academic
tutoring, psychological counseling, and career and college
counseling.
(c) The teachers and staff provide academic instruction and
support services to pupils with the goal of integrating pupils into
the least restrictive environment pursuant to federal law.
(d) The school has and abides by a written policy for pupil
discipline which is consistent with state and federal law and
regulations.
(e) The school has and abides by a written policy that states that
it will not require as a condition of placement that educational
authority for a pupil, as defined in subdivision (m) of Section
48859, be designated to that institution, school, or agency.
(f) The school has and abides by a written policy that states that
it will not solicit or in any way request that a parent or person
holding the right to make educational decisions for the pupil
pursuant to Section 361 or 726 of the Welfare and Institutions Code
transfer or delegate that authority to one of its employees or
persons associated with it.
SEC. 11. Section 7579.5 of the Government Code
is amended to read:
7579.5. (a) In accordance with Section 1415(b)(2)(B) 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 300.519 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 specifically
has 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, as a first preference, shall 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 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, and 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 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 team
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 the interests of the child entrusted to his or
her care.
(i) An individual who would have a conflict of interest in
representing the child, as specified in Section 300.519(d) of Title
34 of the Code of Federal Regulations, shall not be appointed as a
surrogate parent. "An individual who would have a conflict of
interest," for purposes of this section, means a person having any
interests that might restrict or bias his or her ability to advocate
for all of the services required to ensure 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 parents, 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. An
individual who is an employee of, or who is associated with, a
licensed children's institution, as defined in Section 56155.5 of the
Education Code, or an agency owned by, operated by, or associated
with, a licensed children's institution shall not serve as a
surrogate parent, nor shall a surrogate parent transfer or delegate
his or her authority to such an individual. An individual who is an
employee of, or who is associated with, a nonpublic, nonsectarian
school, as defined in Section 56034 of the Education Code, shall not
serve as a surrogate parent, nor shall a surrogate parent transfer or
delegate his or her authority to such an individual.
(1) Except as provided above, 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.
(1) If a child is residing in a licensed children's institution,
as defined in Section 56155.5 of the Education Code, an individual
who is an employee of, or who is associated with, a licensed children'
s institution shall not represent the interests of the child.
(2) If a child is residing in a licensed children's institution,
as defined in Section 56155.5 of the Education Code, an individual
who is an employee of, or who is associated with, a nonpublic,
nonsectarian school, as defined in Section 56034 of the Education
Code, shall not represent the interests of the child.
(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. 12. Section 361 of the Welfare and
Institutions Code is amended to read:
361. (a) In all cases in which a minor is adjudged a dependent
child of the court on the ground that the minor is a person described
by Section 300, the court may limit the control to be exercised over
the dependent child by any parent or guardian and shall by its order
clearly and specifically set forth all those limitations. Any
limitation on the right of the parent or guardian to make educational
decisions for the child shall be specifically addressed in the court
order. The limitations may not exceed those necessary to protect the
child. If the court specifically limits the right of the parent or
guardian to make educational decisions for the child, the court shall
at the same time appoint a responsible adult to make educational
decisions for the child until one of the following occurs:
(1) The minor reaches 18 years of age, unless the child chooses
not to make educational decisions for himself or herself, or is
deemed by the court to be incompetent.
(2) Another responsible adult is appointed to make educational
decisions for the minor pursuant to this section.
(3) The right of the parent or guardian to make educational
decisions for the minor is fully restored.
(4) A successor guardian or conservator is appointed.
(5) The child is placed into a planned permanent living
arrangement pursuant to paragraph (3) of subdivision (g) of Section
366.21, Section 366.22, or Section 366.26, at which time the foster
parent, relative caretaker, or nonrelative extended family member as
defined in Section 362.7, has the right to represent the child in
educational matters pursuant to Section 56055 of the Education Code.
(6) (A) Neither a responsible adult appointed by the court to make
educational decisions for the child, nor an individual defined in
paragraph (5), shall delegate or transfer the right to make
educational decisions for the child to any other individual,
organization, agency, or entity.
(B) An individual who would have a conflict of interest in
representing the child may not be appointed to make educational
decisions. For purposes of this section, "an individual who would
have a conflict of interest," means a person having any interests
that might restrict or bias his or her ability to make educational
decisions, including, but not limited to, those conflicts of interest
prohibited by Section 1126 of the Government Code, and the receipt
of compensation or attorneys' fees for the provision of services
pursuant to this section. An individual who is an employee of, or who
is associated with, a licensed children's institution, as defined in
Section 56155.5 of the Education Code, or an agency owned by,
operated by, or associated with, a licensed children's institution,
shall not be appointed to make educational decisions for the child.
An individual who is an employee of, or who is associated with, a
nonpublic, nonsectarian school, as defined in Section 56034 of the
Education Code, shall not be appointed to make educational decisions
for the child. A foster parent may not be deemed to have a conflict
of interest solely because he or she receives compensation for the
provision of services pursuant to this section.
(C) If the court is unable to appoint a responsible adult to make
educational decisions for the child and paragraphs (1) to (5),
inclusive, do not apply, and the child has either been referred to
the local educational agency for special education and related
services, or has a valid individualized education program, the court
shall refer the child to the local educational agency for appointment
of a surrogate parent pursuant to Section 7579.5 of the Government
Code.
(D) If the court cannot identify a responsible adult to make
educational decisions for the child, the appointment of a surrogate
parent as defined in subdivision (a) of Section 56050 of the
Education Code is not warranted, and there is no foster parent to
exercise the authority granted by Section 56055 of the Education
Code, the court may, with the input of any interested person, make
educational decisions for the child.
(E) All educational and school placement decisions shall seek to
ensure that the child is in the least restrictive educational
programs and has access to the academic resources, services, and
extracurricular and enrichment activities that are available to all
pupils. In all instances, educational and school placement decisions
shall be based on the best interests of the child.
(b) Subdivision (a) does not limit the ability of a parent to
voluntarily relinquish his or her child to the State Department of
Social Services or to a licensed county adoption agency at any time
while the child is a dependent child of the juvenile court, if the
department or agency is willing to accept the relinquishment.
(c) A dependent child may not be taken from the physical custody
of his or her parents or guardian or guardians with whom the child
resides at the time the petition was initiated, unless the juvenile
court finds clear and convincing evidence of any of the following
circumstances listed in paragraphs (1) to (5), inclusive, and, in an
Indian child custody proceeding, paragraph (6):
(1) There is or would be a substantial danger to the physical
health, safety, protection, or physical or emotional well-being of
the minor if the minor were returned home, and there are no
reasonable means by which the minor's physical health can be
protected without removing the minor from the minor's parent's or
guardian's physical custody. The fact that a minor has been
adjudicated a dependent child of the court pursuant to subdivision
(e) of Section 300 shall constitute prima facie evidence that the
minor cannot be safely left in the physical custody of the parent or
guardian with whom the minor resided at the time of injury. The court
shall consider, as a reasonable means to protect the minor, the
option of removing an offending parent or guardian from the home. The
court shall also consider, as a reasonable means to protect the
minor, allowing a nonoffending parent or guardian to retain physical
custody as long as that parent or guardian presents a plan acceptable
to the court demonstrating that he or she will be able to protect
the child from future harm.
(2) The parent or guardian of the minor is unwilling to have
physical custody of the minor, and the parent or guardian has been
notified that, if the minor remains out of their physical custody for
the period specified in Section 366.26, the minor may be declared
permanently free from their custody and control.
(3) The minor is suffering severe emotional damage, as indicated
by extreme anxiety, depression, withdrawal, or untoward aggressive
behavior toward himself or herself or others, and there are no
reasonable means by which the minor's emotional health may be
protected without removing the minor from the physical custody of his
or her parent or guardian.
(4) The minor or a sibling of the minor has been sexually abused,
or is deemed to be at substantial risk of being sexually abused, by a
parent, guardian, or member of his or her household, or other person
known to his or her parent, and there are no reasonable means by
which the minor can be protected from further sexual abuse or a
substantial risk of sexual abuse without removing the minor from his
or her parent or guardian, or the minor does not wish to return to
his or her parent or guardian.
(5) The minor has been left without any provision for his or her
support, or a parent who has been incarcerated or institutionalized
cannot arrange for the care of the minor, or a relative or other
adult custodian with whom the child has been left by the parent is
unwilling or unable to provide care or support for the child, and the
whereabouts of the parent is unknown and reasonable efforts to
locate him or her have been unsuccessful.
(6) In an Indian child custody proceeding, continued custody of
the child by the parent or Indian custodian is likely to result in
serious emotional or physical damage to the child, and that finding
is supported by testimony of a "qualified expert witness" as
described in Section 224.6.
(A) Stipulation by the parent, Indian custodian, or the Indian
child's tribe, or failure to object, may waive the requirement of
producing evidence of the likelihood of serious damage only if the
court is satisfied that the party has been fully advised of the
requirements of the Indian Child Welfare Act (25 U.S.C. Sec. 1901 et
seq.), and has knowingly, intelligently, and voluntarily waived them.
(B) Failure to meet non-Indian family and child-rearing community
standards, or the existence of other behavior or conditions that meet
the removal standards of this section, will not support an order for
placement in the absence of the finding in this paragraph.
(d) The court shall make a determination as to whether reasonable
efforts were made to prevent or to eliminate the need for removal of
the minor from his or her home or, if the minor is removed for one of
the reasons stated in paragraph (5) of subdivision (c), whether it
was reasonable under the circumstances not to make any of those
efforts, or, in the case of an Indian child custody proceeding,
whether active efforts as required in Section 361.7 were made and
that these efforts have proved unsuccessful. The court shall state
the facts on which the decision to remove the minor is based.
(e) The court shall make all of the findings required by
subdivision (a) of Section 366 in either of the following
circumstances:
(1) The minor has been taken from the custody of his or her parent
or guardian and has been living in an out-of-home placement pursuant
to Section 319.
(2) The minor has been living in a voluntary out-of-home placement
pursuant to Section 16507.4.
SEC. 13. Section 726 of the Welfare and
Institutions Code is amended to read:
726. (a) In all cases in which a minor is adjudged a ward or
dependent child of the court, the court may limit the control to be
exercised over the ward or dependent child by any parent or guardian
and shall in its order, clearly and specifically set forth all those
limitations, but no ward or dependent child shall be taken from the
physical custody of a parent or guardian, unless upon the hearing the
court finds one of the following facts:
(1) That the parent or guardian is incapable of providing or has
failed or neglected to provide proper maintenance, training, and
education for the minor.
(2) That the minor has been tried on probation while in custody
and has failed to reform.
(3) That the welfare of the minor requires that custody be taken
from the minor's parent or guardian.
(b) Whenever the court specifically limits the right of the parent
or guardian to make educational decisions for the minor, the court
shall at the same time appoint a responsible adult to make
educational decisions for the child until one of the following
occurs:
(1) The minor reaches 18 years of age, unless the child chooses
not to make educational decisions for himself or herself, or is
deemed by the court to be incompetent.
(2) Another responsible adult is appointed to make educational
decisions for the minor pursuant to this section.
(3) The right of the parent or guardian to make educational
decisions for the minor is fully restored.
(4) A successor guardian or conservator is appointed.
(5) The child is placed into a planned permanent living
arrangement pursuant to paragraph (5) or (6) of subdivision (b) of
Section 727.3, at which time the foster parent, relative caretaker,
or nonrelative extended family member as defined in Section 362.7 has
the right to represent the child in educational matters pursuant to
Section 56055 of the Education Code.
(6) (A) Neither a responsible adult appointed by the court to make
educational decisions for the child, nor an individual defined in
paragraph (5), shall delegate or transfer the right to make
educational decisions for the child to any other individual,
organization, agency, or entity.
(B) An individual who would have a conflict of interest in
representing the child, as specified under federal regulations, may
not be appointed to make educational decisions. For purposes of this
section, "an individual who would have a conflict of interest," means
a person having any interests that might restrict or bias his or her
ability to make educational decisions, including, but not limited
to, those conflicts of interest prohibited by Section 1126 of the
Government Code, and the receipt of compensation or attorneys' fees
for the provision of services pursuant to this section. An individual
who is an employee of, or who is associated with, a licensed
children's institution, as defined in Section 56155.5 of the
Education Code, or an agency owned by, operated by, or associated
with, a licensed children's institution shall not be appointed to
make educational decisions for the child. An individual who is an
employee of, or who is associated with, a nonpublic, nonsectarian
school, as defined in Section 56034 of the Education Code, shall not
be appointed to make educational decisions for the child. A foster
parent may not be deemed to have a conflict of interest solely
because he or she receives compensation for the provision of services
pursuant to this section.
(C) If the court is unable to appoint a responsible adult to make
educational decisions for the child and paragraphs (1) to (5),
inclusive, do not apply, and the child has either been referred to
the local educational agency for special education and related
services, or has a valid individualized education program, the court
shall refer the child to the local educational agency for appointment
of a surrogate parent pursuant to Section 7579.5 of the Government
Code.
(D) All educational and school placement decisions shall seek to
ensure that the child is in the least restrictive educational
programs and has access to the academic resources, services, and
extracurricular and enrichment activities that are available to all
pupils. In all instances, educational and school placement decisions
shall be based on the best interests of the child.
(c) If the minor is removed from the physical custody of his or
her parent or guardian as the result of an order of wardship made
pursuant to Section 602, the order shall specify that the minor may
not be held in physical confinement for a period in excess of the
maximum term of imprisonment which could be imposed upon an adult
convicted of the offense or offenses which brought or continued the
minor under the jurisdiction of the juvenile court.
As used in this section and in Section 731, "maximum term of
imprisonment" means the longest of the three time periods set forth
in paragraph (2) of subdivision (a) of Section 1170 of the Penal
Code, but without the need to follow the provisions of subdivision
(b) of Section 1170 of the Penal Code or to consider time for good
behavior or participation pursuant to Sections 2930, 2931, and 2932
of the Penal Code, plus enhancements which must be proven if pled.
If the court elects to aggregate the period of physical
confinement on multiple counts or multiple petitions, including
previously sustained petitions adjudging the minor a ward within
Section 602, the "maximum term of imprisonment" shall be the
aggregate term of imprisonment specified in subdivision (a) of
Section 1170.1 of the Penal Code, which includes any additional term
imposed pursuant to Section 667, 667.5, 667.6, or 12022.1 of the
Penal Code, and Section 11370.2 of the Health and Safety Code.
If the charged offense is a misdemeanor or a felony not included
within the scope of Section 1170 of the Penal Code, the "maximum term
of imprisonment" is the longest term of imprisonment prescribed by
law.
"Physical confinement" means placement in a juvenile hall, ranch,
camp, forestry camp or secure juvenile home pursuant to Section 730,
or in any institution operated by the Youth Authority.
This section does not limit the power of the court to retain
jurisdiction over a minor and to make appropriate orders pursuant to
Section 727 for the period permitted by Section 607.
SEC. 14. SEC. 6. If the Commission
on State Mandates determines that this act contains costs mandated by
the state, reimbursement to local agencies and school districts for
those costs shall be made pursuant to Part 7 (commencing with Section
17500) of Division 4 of Title 2 of the Government Code.