BILL ANALYSIS
AB 164
Page 1
Date of Hearing: March 21, 2001
ASSEMBLY COMMITTEE ON EDUCATION
Virginia Strom-Martin, Chair
AB 164 (Harman) - As Amended: March 19, 2001
SUBJECT : Special Education due process.
SUMMARY : Requires the party initiating a request for a due
process hearing in a special education dispute to prepare and
file a written notice with the school district superintendent 30
days prior to filing a request for the due process hearing.
Specifically, this bill :
1)Requires that at least 30 days prior to filing a request for a
due process hearing with the Superintendent of Public
Instruction (SPI) in a special education dispute, the party
initiating the request must prepare and file, by certified
mail, return receipt requested, with the 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, and
c) The relief requested.
2)Determines that the superintendent may, within 10 days of
receipt of the notice, 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)Requires that the aforementioned preparation and filing of
notice is a condition precedent to the right of the initiating
party to a due process hearing. However, technical
deficiencies in the manner of filing will not deprive the
initiating party of the right to a due process hearing where
the superintendent had actual notice.
4)Allows that the filing of the notice shall not be required if
the parties have met and discussed the issues in an attempt to
reach resolution.
AB 164
Page 2
EXISTING LAW authorizes the parent and the public education
agency involved in a special education dispute to initiate due
process hearing procedures under any of the following
circumstances:
1)There is a proposal to initiate or change the identification,
assessment, or educational placement of the child or the
provision of a free, appropriate public education to the
child.
2)There is a refusal to initiate or change the identification,
assessment, or educational placement of the child or the
provision of a free, appropriate public education to the
child.
3)The parent refuses to consent to an assessment of the child.
Current law requires all requests for a due process hearing to
be filed with the Superintendent of Public Instruction (SPI) and
requires the party initiating a due process hearing to provide
the other party to the hearing with a copy of the request at the
time the request is filed with the SPI. The SPI is required to
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, and a final administrative decision
is rendered, unless a continuance has been granted, as
specified.
The SPI or his or her designee is required, upon receipt of the
written request by the parent or public education agency, to
immediately notify, in writing, all parties of the request for
the hearing and the scheduled date for the hearing. The notice
is required to advise all parties of all their rights relating
to procedural safeguards. The SPI or his or her designee is
required to provide both parties with a list of people and
organizations within the geographical area that can provide free
or reduced cost representation or other assistance in preparing
for the due process hearing.
Current federal regulations require the parents filing a request
for a due process hearing to include, among other things, a
description of the nature of the problem of the child relating
to the proposed or refused initiation or change, including facts
relating to the problem, and a proposed resolution of the
AB 164
Page 3
program to the extend known and available to the parents at the
time.
Public education agencies and parents are authorized, if the
party initiating the hearing so chooses, to meet informally to
resolve any issue of 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 must be conducted by the district
superintendent, county superintendent, or director of the public
education agency or his or her designee.
Parties to a hearing are not precluded from agreeing to use a
mediation conference or resolving their dispute in an informal,
non-adversarial manner, even though a request for a state level
hearing has been filed or even if the due process hearing has
commenced.
Current law provides that the due process hearing rights
include, but are not limited to, all of the following:
1)The right to a mediation conference, as specified.
2)The right to request a mediation conference at any point
during the hearing process, as specified.
3)The right to examine pupil records, as specified.
4)The right to a fair and impartial administrative hearing at
the state level, before a person knowledgeable in the laws
governing special education and administrative hearings, under
contract with the State Department of Education.
Current federal law, the Individuals with Disabilities Education
Act (IDEA), has the purpose of all of the following:
1)Ensure that all children with disabilities have available to
them a free appropriate public education that emphasizes
special education and related services designed to meet their
unique needs and prepare them for employment and independent
living;
2)Ensure that the rights of children with disabilities and
parents of such children are protected;
AB 164
Page 4
3)Assist states, localities, educational service agencies, and
federal agencies to provide for the education of all children
with disabilities;
4)Assist states in the implementation of a statewide,
comprehensive, coordinated, multidisciplinary, interagency
system of early intervention services for infants and toddlers
with disabilities and their families;
5)Ensure that educators and parents have the necessary tools to
improve educational results for children with disabilities by
supporting systemic-change activities, coordinated research
and personnel preparation, coordinated technical assistance,
dissemination, and support, and technology development and
media services; and
6)Assess, and ensure the effectiveness of, efforts to educate
children with disabilities.
FISCAL EFFECT : Unknown
COMMENTS :
Arguments in support. According to the author, current law does
not require individuals to notify a school that they have filed
for a due process hearing, leaving the school with no
opportunity to satisfy the request for service prior to
incurring the expense of the hearing.
The California Speech/Language Hearing Association contends that
meetings, paperwork and stress associated with due process
hearings place an unreasonable burden on speech-language
pathologists and ultimately take time away from their work with
students.
Arguments in opposition. Protection and Advocacy, Inc., asserts
that, according to federal law, a parent's right to initiate due
process cannot be delayed or made contingent on anything. The
organization states, "Federal law requires that parties are sent
a written decision no later than 45 days after receipt of a
request for a hearing?. If a parent requested a hearing and the
request was not recognized for at least 30 days?it would be
impossible to comply with federal requirement."
AB 164
Page 5
School districts are currently prohibited from making a change
in a student's placement if a petition for due process has been
filed, unless the parent and public agency agree to the change.
The 30-day delay in filing a due process petition would
interfere with the protections afforded the student pending due
process.
Would the bill put California at risk of becoming incompliant
with IDEA ? IDEA and federal regulations govern how states and
local education agencies provide special education and related
services. Any defiance of the controlling federal law may lead
to a withholding of significant federal funding for special
education, while the state would continue to be responsible for
providing these programs and services.
Federal law does not place any limits similar to those proposed
in this bill as a condition for initiating due process.
Therefore, the implementation of a 30-day prerequisite notice
period could leave the state vulnerable to a challenge of
compliance with IDEA.
Is the bill necessary ? The purpose of this bill is to ensure
that local superintendents are aware of disputes and have the
opportunity to resolve any disputes prior to the involvement of
attorneys and the possible liability of attorneys' fees.
However, current law requires notice to be provided to local
superintendents when a request for due process hearing is filed,
and provides that mediation may still be pursued, even though a
request for a due process hearing has been filed. Therefore, it
is currently possible to avoid responsibility for attorneys'
fees.
Related Legislation . AB 2321 (Mazzoni), Chapter 591, Statutes
of 2000, authorizes the Department of Education to select up to
three Special Education Local Plan Areas to pilot test, for up
to three years, alternative due process hearing procedures,
provided that funds are appropriated for that purpose. This
Chapter provides for the pilot programs to implement a
voluntary, simplified alternative hearing process based on
settlement and alternative dispute resolution models, without
the involvement of attorneys, and including the following
features:
1)No legal rules of evidence, except rules regarding privileged
communications and hearsay;
AB 164
Page 6
2)Curtailed presentation of evidence;
3)Parents represent themselves;
4)School site staff represent the district; and
5)Hearings last no more than one day.
Chapter 591 provides that participation in the pilot program
does not waive rights to due process, nor does participation
prejudice future proceedings.
REGISTERED SUPPORT / OPPOSITION :
Support
Orange County Department of Education (sponsor)
Association of California School Administrators
California Speech/Language Hearing Association
County Superintendents of Schools
Kern County Superintendent of Schools
Riverside County Schools Advocacy Association
Riverside County Superintendent of Schools
Opposition
Area XI Developmental Disabilities Board
California Department of Education, State Superintendent of
Public Instruction
Organization of Area Boards on Developmental Disabilities
Protection and Advocacy, Inc.
An individual
Analysis Prepared by : Mavonne Garrity / ED. / (916) 319-2087