BILL NUMBER: SB 462 AMENDED
BILL TEXT
AMENDED IN SENATE MARCH 25, 2011
INTRODUCED BY Senator Blakeslee
FEBRUARY 16, 2011
An act relating to special education. An
act to amend Section 56502 of, and to add Chapter 4.2 (commencing
with Section 56395) to Part 30 of Division 4 of Title 2 of, the
Education Code, relating to special education.
LEGISLATIVE COUNSEL'S DIGEST
SB 462, as amended, Blakeslee. Special education:
litigation: costs. special education advocates:
certification.
Existing law requires local educational agencies to initiate, and
individualized education program teams to conduct, meetings for the
purposes of developing, reviewing, and revising the individualized
education program of each individual with exceptional needs, as
specified. Existing law also provides that it is the intent of the
Legislature that parties to special education disputes be encouraged
to seek resolution through mediation in a nonadversarial atmosphere,
which may not be attended by attorneys or other independent
contractors used to provide legal advocacy services, prior to filing
a request for a due process hearing. Existing law provides, however,
that this does not preclude the parent or public agency from being
accompanied and advised by nonattorney representatives in mediation
conferences.
This bill would require special education local plan areas,
collectively, and in collaboration with the State Department of
Education, to develop a voluntary special education advocate
certification program for persons who would participate, upon the
invitation of a parent, as a member of a pupil's individualized
education program team, or, upon the invitation of a parent, in a
mediation conference, as specified. The bill would require special
education local plan areas to provide alternative dispute resolution
training, and the Office of Administrative Hearings to administer a
test, to persons seeking certification, as specified. The bill would
also require the Office of Administrative Hearings to certify, and
maintain a registry of, persons who have successfully passed the test
and completed the training. The bill would require a certified
special education advocate to disclose his or her relationship to the
pupil or his or her parents, as specified. Because the bill would
require local educational agencies to perform additional duties, the
bill would impose a state-mandated local program.
Existing law provides that upon receipt by the Superintendent of
Public Instruction of a written request for a due process hearing
regarding a proposal or refusal to initiate or change the
identification, assessment, or educational placement of a child with
exceptional needs, the provision of a free appropriate public
education to the child, or the availability of a program appropriate
for the child, including the question of financial responsibility,
from the parent or guardian or public agency, the Superintendent or
his or her designee or designees immediately shall notify, in
writing, all parties and provide them 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. Existing law provides that the Superintendent or
his or her designee shall have complete discretion in determining
which individuals or groups shall be included on the list.
This bill would delete the provision providing that the
Superintendent or his or her designee shall have complete discretion
in determining which individuals or groups shall be included on the
list and instead provide that the Superintendent or his or her
designee shall certify that the listed persons or organizations
provide services for free or at a reduced cost.
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.
Existing law requires all children with disabilities residing in
the state, regardless of the severity of their disabilities, and who
are in need of special education and related services, to be
identified, located, and assessed. Existing law requires a local
educational agency to provide for the identification and assessment
of the exceptional needs of an individual, and the planning of an
instructional program to meet the assessed needs.
This bill would state the intent of the Legislature to enact
legislation that would address litigation fees incurred by school
districts, special education local plan areas, and parents concerning
special education disagreements.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Chapter 4.2 (commencing with Section
56395) is added to Part 30 of Division 4 of Title 2 of the
Education Code , to read:
CHAPTER 4.2. SPECIAL EDUCATION ADVOCATES
56395. It is the intent of the Legislature to protect families of
individuals with exceptional needs and to improve the relationship
between special education advocates and school districts by providing
a voluntary special advocate certification program.
56395.1. For the purpose of this chapter:
(a) "Alternative dispute resolution" means nonadversarial
techniques used to reduce conflict and to come to a mutually
beneficial agreement.
(b) "Certified special education advocate" means any nonattorney
person, paid or unpaid, who speaks, writes, or works on behalf of a
pupil who qualifies as an individual with exceptional needs, as
defined in Section 56026, and who has been certified pursuant to the
provisions of this chapter.
56395.2. Special education local plan areas, in collaboration
with the department, shall do all of the following:
(a) Collectively, and in consultation with the Office of
Administrative Hearings, develop a voluntary special education
advocate certification program that includes a test, which shall be
administered by the Office of Administrative Hearings, to certify
that the person has sufficient knowledge and understanding of the
process for resolving special education disputes.
(b) Determine the yearly fee to be charged by a special education
local plan area to a person seeking certification as a special
education advocate that shall not exceed the reasonable costs of
providing training pursuant to subdivision (c).
(c) Provide alternative dispute resolution training at least twice
per year for persons seeking certification as a special education
advocate. This training also may be offered by an entity approved by
a special education local plan area. The training shall consist of
all of the following.
(1) At least four hours of alternative dispute resolution
training.
(2) Relevant ethics training.
(3) Review of relevant special education laws.
(d) Notify the Office of Administrative Hearings whether a person
seeking certification has completed the alternative dispute
resolution training.
56395.3. The Office of Administrative Hearings shall do all of
the following:
(a) Administer a test, either online or in person, to a person
seeking certification as a special education advocate. The test shall
be offered in the native language of the person seeking
certification as a special education advocate.
(b) Certify a person who has successfully passed the test
described in subdivision (a) and who has fulfilled the training
requirements listed in subdivision (c) of Section 56395.2.
Certification may be granted for a period not to exceed five years.
(c) Post a registry of certified special education advocates on
its Internet Web site consistent with subdivision (h) of Section
56502.
(d) Charge a fee to a person seeking certification as a special
education advocate that shall not exceed the reasonable costs of
administering the test pursuant to subdivision (a) and maintaining
the registry pursuant to subdivision (c).
56395.4. (a) A certified special education advocate shall do all
of the following:
(1) Upon the invitation of a parent, speak, write, or work on
behalf of a pupil who qualifies as an individual with exceptional
needs pursuant to paragraph (1) of subdivision (b) of Section 56341,
or subdivision (b) of Section 56500.3.
(2) Register with the Office of Administrative Hearings and renew
their certification every five years. Registrants shall indicate
whether they are a paid or an unpaid advocate. If a person registers
as a paid advocate, and he or she is referred by an attorney, he or
she shall be required to report the identity of the person who
employs him or her.
(3) Have a report, available upon request by parents, special
education local plan area staff, a school district, or the
department, regarding the frequency of their advocacy activities, the
subject matter of the issues upon which he or she has worked, the
fees, if any, he or she has received for his or her advocacy, and the
length of time he or she took to resolve each case.
(4) Disclose at the beginning of a mediation session, in writing,
his or her relationship to the pupil or his or her parents and
indicate whether he or she is receiving payment of any kind for his
or her services.
(b) A certified special education advocate may not be reimbursed
by parents, organizations, advocacy groups, or school districts for
the certification fee imposed pursuant to subdivision (b) of Section
56395.2 or subdivision (d) of Section 56395.3.
56395.5. (a) A parent, as defined in Section 56028, is not
required to be certified pursuant to the provisions of this chapter
in order to represent his or her child.
(b) A mediator, as described in subdivision (d) of Section
56500.3, shall require nonparent participants in a mediation session
to disclose their relationship to the pupil and their status as an
advocate.
SEC. 2. 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 Section 300.508(a) and (b)
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 Section 300.509 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 Section 1415(b)(7)(A) 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 Section
1415(b)(7)(A) 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 Section 1415(b)(7)(A) of Title 20 of the
United States Code, and shall immediately notify the parties in
writing of the determination.
(2) (A) The response to the due process hearing request notice
shall be made within 10 days of receiving the request notice in
accordance with Section 1415(c)(2)(B) of Title 20 of the United
States Code.
(B) In accordance with Section 300.508(e)(1) of Title 34 of the
Code of Federal Regulations, if the local educational agency has not
sent a prior written notice under Section 56500.4 and Section 300.503
of Title 34 of the Code of Federal Regulations to the parent
regarding the subject matter contained in the due process hearing
request of the parent, the response from the local educational agency
to the parent shall include all of the following:
(i) An explanation of why the agency proposed or refused to take
the action raised in the due process hearing request.
(ii) A description of other options that the individualized
education program team considered and the reasons why those options
were rejected.
(iii) A description of each assessment procedure, assessment,
record, or report the agency used as the basis for the proposed or
refused action.
(iv) A description of other factors that are relevant to the
proposed or refused action of the agency.
(C) A response by a local educational agency under subparagraph
(B) shall not be construed to preclude the local educational agency
from asserting that the due process request of the parent was
insufficient, where appropriate.
(D) Except as provided under subparagraph (B), the party receiving
a due process hearing request notice, within 10 days of receiving
the notice, shall send to the other party, in accordance with Section
300.508(f) of Title 34 of the Code of Federal Regulations, a
response that specifically addresses the issues raised in the due
process hearing request notice.
(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 Section 1415(f)(1)(B) 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 Section 1415(f)(1)(B) 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 agency and a parent or guardian , if the
party initiating the hearing so chooses, may meet informally to
resolve an 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 agency or his or her
designee. A 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 agency, the
Superintendent or his or her designee or designees immediately shall
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 certify that the listed
persons or organizations provide services for free or at a reduced
cost .
(i) In accordance with Section 1415(f)(3)(B) 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. 3. 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.
SECTION 1. It is the intent of the Legislature
to enact legislation that would address litigation fees incurred by
school districts, special education local plan areas, and parents
concerning special education disagreements.