BILL NUMBER: AB 164 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 16, 2001
AMENDED IN ASSEMBLY MARCH 15, 2001
INTRODUCED BY Assembly Member Harman
JANUARY 31, 2001
An act to amend Section 56502 56500.3
of the Education Code, relating to special education.
LEGISLATIVE COUNSEL'S DIGEST
AB 164, as amended, Harman. Special education: due process
hearings.
Existing law provides procedural safeguards, including due process
hearings for the resolution of complaints regarding alleged
violations of the Individuals with Disabilities Act. Existing
law also authorizes parties to special education disputes to seek
resolution through mediation prior to filing a request for a due
process hearing.
This bill would authorize the local education agency to
establish procedures to require parents who choose not to use the
mediation process to meet, at a time and location convenient to the
parents, for the purpose of encouraging the use and explaining the
benefits of the mediation process to the parents, as specified.
require, at least 30 days prior to filing a request for a
due process hearing with the Superintendent of Public Instruction,
the party initiating the request to prepare and file, by certified
mail, return receipt requested, with the school district
superintendent, a written notice of intent to file a request for a
due process hearing, as specified.
The bill would authorize, within 10 business days of receipt of
the notice, the district superintendent, at his or her discretion, to
contact the party initiating the request and arrange to meet with
the party, on an informal basis, to make a good faith attempt to
resolve the issues.
The bill would require preparation and filing of the notice as a
condition precedent to the right of the initiating party to a due
process hearing.
Vote: majority. Appropriation: no. Fiscal committee:
yes no . State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 56502 of the Education Code is
SECTION 1. Section 56500.3 of the Education Code is amended to
read:
56500.3. (a) It is the intent of the Legislature that parties to
special education disputes be encouraged to seek resolution through
mediation prior to filing a request for a due process hearing. It is
also the intent of the Legislature that these voluntary prehearing
request mediation conferences be an informal process conducted in a
nonadversarial atmosphere to resolve issues relating to the
identification, assessment, or educational placement of the child, or
the provision of a free, appropriate public education to the child,
to the satisfaction of both parties. Therefore, attorneys or other
independent contractors used to provide legal advocacy services shall
not attend or otherwise participate in the prehearing request
mediation conferences.
(b) Nothing in this part shall preclude the parent or the public
education agency from being accompanied and advised by nonattorney
representatives in the mediation conferences and consulting with an
attorney prior to or following a mediation conference. For purposes
of this section, "attorney" means an active, practicing member of the
State Bar of California or another independent contractor used to
provide legal advocacy services, but does not mean a parent of the
pupil who is also an attorney.
(c) Requesting or participating in a mediation conference is not a
prerequisite to requesting a due process hearing.
(d) The local education agency may, pursuant to subparagraph
(B) of paragraph (2) of subsection (e) of Section 1415 of Title 20 of
the United States Code, establish procedures to require parents who
choose not to use the mediation process to meet, at a time and
location convenient to the parents, for the purpose of encouraging
the use and explaining the benefits of the mediation process to the
parents. A meeting pursuant to this subdivision shall be with a
disinterested party who is under contract with either of the
following:
(1) A parent training and information center or community parent
resource center established pursuant to Section 1482 or 1483 of Title
20 of the United States Code.
(2) An appropriate alternative dispute resolution entity.
(e) All requests for a mediation conference shall be filed
with the superintendent. The party initiating a mediation conference
by filing a written request with the superintendent shall provide
the other party to the mediation with a copy of the request at the
same time the request is filed with the superintendent. The
mediation conference shall be conducted by a person knowledgeable in
the process of reconciling differences in a nonadversarial manner and
under contract with the department pursuant to Section 56504.5. The
mediator shall be knowledgeable in the laws and regulations
governing special education.
(e)
(f) The prehearing mediation conference shall be scheduled
within 15 days of receipt by the superintendent of the request for
mediation. The mediation conference shall be completed within 30
days after receipt of the request for mediation unless both parties
to the prehearing mediation conference agree to extend the time for
completing the mediation.
(f)
(g) Based upon the mediation conference, the district
superintendent, the county superintendent, or the director of the
public education agency, or his or her designee, may resolve the
issue or issues. However, this resolution shall not conflict with
state or federal law and shall be to the satisfaction of both
parties. A copy of the written resolution shall be mailed to each
party within 10 days following the mediation conference.
(g)
(h) If the mediation conference fails to resolve the issues
to the satisfaction of all parties, the party who requested the
mediation conference has the option of filing for a state-level
hearing pursuant to Section 56505. The mediator may assist the
parties in specifying any unresolved issues to be included in the
hearing request.
(h)
(i) Any mediation conference held pursuant to this section
shall be held at a time and place reasonably convenient to the parent
and pupil.
(i)
(j) The mediation conference shall be conducted in
accordance with regulations adopted by the board.
(j)
(k) Notwithstanding any procedure set forth in this chapter,
a public education agency and a parent may, if the party initiating
the mediation conference so chooses, meet informally to resolve any
issue or issues to the satisfaction of both parties prior to the
mediation conference.
(k)
(l) The procedures and rights contained in this section
shall be included in the notice of parent rights attached to the
pupil's assessment plan pursuant to Section 56321. amended
to read:
56502. (a) (1) At least 30 days prior to filing a request for a
due process hearing with the superintendent, the party initiating the
request shall prepare and file, by certified mail, return receipt
requested, with the district superintendent, a written notice stating
all of the following:
(A) The intention of the initiating party to file a request for a
due process hearing.
(B) A brief description of the issues in dispute.
(C) The relief requested.
(2) Within 10 business days of receipt of the notice prepared and
filed pursuant to paragraph (1), the district superintendent may, at
his or her discretion, contact the party initiating the request and
arrange to meet with the party, on an informal basis, to make a good
faith attempt to resolve the issues.
(3) The preparation and filing of the notice required pursuant to
paragraph (1) shall be a condition precedent to the right of the
initiating party to a due process hearing. However, technical
deficiencies in the manner of filing shall not deprive the initiating
party of the right to a due process hearing where the district
superintendent had actual notice.
(b) Notwithstanding subdivision (a), filing of the written notice
shall not be required if the parties have met and discussed the
issues in an attempt to reach resolution.
(c) All requests for a due process hearing shall be filed with the
superintendent. 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
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.
(d) Notwithstanding any procedure set forth in this chapter, a
public education agency and a parent may, if the party initiating the
hearing so chooses, meet informally to resolve any issue or issues
relating to the identification, assessment, or education and
placement of the child, or the provision of a free, appropriate
public education to the child, to the satisfaction of both parties
prior to the hearing. The informal meeting shall be conducted by the
district superintendent, county superintendent, or director of the
public education agency or his or her designee. Any designee
appointed pursuant to this subdivision shall have the authority to
resolve the issue or issues.
(e) Upon receipt by the superintendent of a written request by the
parent or public education agency, the superintendent or his or her
designee or designees shall immediately notify, in writing, all
parties of the request for the hearing and the scheduled date for the
hearing. The notice shall advise all parties of all their rights
relating to procedural safeguards. The superintendent or his or her
designee shall provide both parties with a list of persons and
organizations within the geographical area that can provide free or
reduced cost representation or other assistance in preparing for the
due process hearing. This list shall include a brief description of
the requirement to qualify for the services. The superintendent or
his or her designee shall have complete discretion in determining
which individuals or groups shall be included on the list.