BILL ANALYSIS
AB 164
Page 1
Date of Hearing: April 18, 2001
ASSEMBLY COMMITTEE ON EDUCATION
Virginia Strom-Martin, Chair
AB 164 (Harman) - As Amended: April 16, 2001
SUBJECT : Special Education due process.
SUMMARY : Allows local education agencies (LEAs) to establish
procedures, as specified, to require parents involved in special
education disputes 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 us, and explaining the benefits
of the mediation process to the parents.
Specifically, this bill :
1)Allows the LEA to establish procedures, as specified, to
require parents involved in special education disputes 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.
2)Requires that the meeting must be with a disinterested party
who is under contract with either of the following:
a) A parent training and information center or community
parent resource center established as specified, or
b) An appropriate alternative dispute resolution entity.
EXISTING LAW
1)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:
a) 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.
b) 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
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education to the child.
c) The parent refuses to consent to an assessment of the
child.
2)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 Superintendent of
Public Instruction (SPI).
3)Requires the SPI or his or her designee, 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.
4)Allows public education agencies and parents, 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.
5)Allows parties to a hearing 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.
6)Provides that the due process hearing rights include, but are
not limited to, all of the following:
a) The right to a mediation conference, as specified.
b) The right to request a mediation conference at any point
during the hearing process, as specified.
c) The right to examine pupil records, as specified.
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d) 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;
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
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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.
Would the bill put California at risk of becoming noncompliant
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.
However, it appears that the additional meeting requirement
proposed in this bill would not be in conflict with federal due
process law.
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;
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.
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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 Association for Counseling & Development
Opposition
None on file.
Analysis Prepared by : Mavonne Garrity / ED. / (916) 319-2087