BILL NUMBER: AB 1124	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  APRIL 22, 2009
	AMENDED IN ASSEMBLY  APRIL 13, 2009

INTRODUCED BY   Assembly Member Yamada

                        FEBRUARY 27, 2009

   An act to amend Section 56505 of the Education Code, relating to
special education.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 1124, as amended, Yamada. Special education: due process
hearings.
   Existing law establishes the right of individuals with exceptional
needs to a free appropriate public education and ensures the right
to special education and related services, including, for individuals
under 3 years of age, specified services under the California Early
Intervention Services Act. Existing state and federal law prescribe
specified rights and procedural requirements relating to
administrative hearings involving an application for initial services
from an individual with exceptional needs who is no longer eligible
for early intervention services under the California Early
Intervention Services Act because he or she has reached 3 years of
age.
   This bill, subject to receipt of federal funding, would require
local educational agencies, during the pendency of a hearing
involving an application of a pupil for initial services under a
preschool program serving individuals with exceptional needs between
3 to 5 years of age, inclusive, who is no longer eligible for early
intervention services under the California Early Intervention
Services Act because he or she has reached 3 years of age, to
continue to provide the same services that were provided under the
California Early Intervention Services Act.
   Because this bill would require local educational agencies to
provide a pupil with certain services beyond the age at which he or
she was qualified to receive those services, it would impose a
state-mandated local program.
   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 56505 of the Education Code is amended to read:

   56505.  (a) The state hearing shall be conducted in accordance
with regulations adopted by the board.
   (b) The hearing shall be held at a time and place reasonably
convenient to the parent or guardian and the pupil.
   (c) (1) The hearing shall be conducted by a person who, at a
minimum, shall possess knowledge of, and the ability to understand,
the provisions of this part and related state statutes and
implementing regulations, the federal Individuals with Disabilities
Education Act (20 U.S.C. Sec. 1400 et seq.), federal regulations
pertaining to the act, and legal interpretations of this part and the
federal law by federal and state courts, and who has satisfactorily
completed training pursuant to this subdivision. The Superintendent
shall establish standards for the training of hearing officers, the
degree of specialization of the hearing officers, and the quality
control mechanisms to be used to ensure that the hearings are fair
and the decisions are accurate.
   (2) The hearing officer shall possess the knowledge and ability to
conduct hearings in accordance with appropriate, standard legal
practice.
   (3) The hearing officer shall possess the knowledge and ability to
render and write decisions in accordance with appropriate, standard
legal practice.
   (4) A due process hearing shall not be conducted by an individual
listed in Section 1415(f)(3)(A)(i) of Title 20 of the United States
Code. Pursuant to Section 300.511(c)(2) of Title 34 of the Code of
Federal Regulations, a person who is qualified to conduct a hearing
is not an employee of the agency solely because he or she is paid by
the agency to serve as a hearing officer. The hearing officer shall
encourage the parties to a hearing to consider the option of
mediation as an alternative to a hearing.
   (d) (1) Pursuant to Section 300.518(a) of Title 34 of the Code of
Federal Regulations, during the pendency of the hearing proceedings,
including the actual state-level hearing, or judicial proceeding
regarding a due process hearing, the pupil shall remain in his or her
present placement, except as provided in Section 300.533 of Title 34
of the Code of Federal Regulations, unless the public agency and the
parent or guardian agree otherwise. A pupil who is applying for
initial admission to a public school, with the consent of his or her
parent or guardian, shall be placed in the public school program
until all proceedings have been completed. As provided in Section
300.518(d) of Title 34 of the Code of Federal Regulations, if the
decision of a hearing officer in a due process hearing or a state
review official in an administrative appeal agrees with the parent or
guardian of the pupil that a change of placement is appropriate,
that placement shall be treated as an agreement between the state or
local educational agency and the parent or guardian.
   (2) (A) If a due process hearing request involves an application
of a child for initial services under a preschool program servicing
individuals with exceptional needs between three and five years of
age, inclusive, under Chapter 4.45 (commencing with Section 56440),
and the child is no longer eligible for early intervention services
under the California Early Intervention Services Act (Title 14
(commencing with Section 95000) of the Government Code) and its
implementing regulations, because he or she has reached three years
of age, the local educational agency shall continue to provide the
same services that had previously been provided under the California
Early Intervention Services Act, during the pendency of the hearing
proceedings.
   (B) This paragraph shall be implemented only to the extent that
the Legislature appropriates funds made available to it by the
federal government pursuant to the American Recovery and Reinvestment
Act of 2009 or other federal legislation similarly intended to
provide higher levels of federal special education funding  for
this purpose  .
   (3) If the child is found eligible for special education and
related services for children three years of age and older, and the
parent or guardian consents to the initial provision of special
education and related services under Section 300.300(b) of Title 34
of the Code of Federal Regulations, the local educational agency
shall provide those special education and related services that are
not in dispute between the parent or guardian and the local
educational agency.
   (e) A party to the hearing held pursuant to this section shall be
afforded the following rights consistent with state and federal
statutes and regulations:
   (1) The right to be accompanied and advised by counsel and by
individuals with special knowledge or training relating to the
problems of individuals with exceptional needs.
   (2) The right to present evidence, written arguments, and oral
arguments.
   (3) The right to confront, cross-examine, and compel the
attendance of, witnesses.
   (4) The right to a written, or, at the option of the parents or
guardians, electronic verbatim record of the hearing.
   (5) The right to written, or, at the option of the parent or
guardian, electronic findings of fact and decisions. The record of
the hearing and the findings of fact and decisions shall be provided
at no cost to parents or guardians in accordance with Section 300.512
(c)(3) of Title 34 of the Code of Federal Regulations. The findings
and decisions shall be made available to the public after any
personally identifiable information has been deleted consistent with
the confidentiality requirements of Section 1417(c) of Title 20 of
the United States Code and shall also be transmitted to the Advisory
Commission on Special Education pursuant to Section 1415(h)(4) of
Title 20 of the United States Code.
   (6) The right to be informed by the other parties to the hearing,
at least 10 days prior to the hearing, as to what those parties
believe are the issues to be decided at the hearing and their
proposed resolution of those issues. Upon the request of a parent who
is not represented by an attorney, the agency responsible for
conducting hearings shall provide a mediator to assist the parent in
identifying the issues and the proposed resolution of the issues.
   (7) The right to receive from other parties to the hearing, at
least five business days prior to the hearing, a copy of all
documents and a list of all witnesses and their general area of
testimony that the parties intend to present at the hearing. Included
in the material to be disclosed to all parties at least five
business days prior to a hearing shall be all assessments completed
by that date and recommendations based on the assessments that the
parties intend to use at the hearing.
   (8) The right, pursuant to Section 300.512(a)(3) of Title 34 of
the Code of Federal Regulations, to prohibit the introduction of any
evidence at the hearing that has not been disclosed to that party at
least five business days before the hearing.
   (f) (1) In accordance with Section 1415(f)(3)(E) of Title 20 of
the United States Code, the decision of a due process hearing officer
shall be made on substantive grounds based on a determination of
whether the child received a free appropriate public education.
   (2) In matters alleging a procedural violation, a due process
hearing officer may find that a child did not receive a free
appropriate public education only if the procedural violation did any
of the following:
   (A) Impeded the right of the child to a free appropriate public
education.
   (B) Significantly impeded the opportunity of the parents of the
child to participate in the decisionmaking process regarding the
provision of a free appropriate public education to the child.
   (C) Caused a deprivation of educational benefits.
   (3) The hearing conducted pursuant to this section shall be
completed and a written, reasoned decision, including the reasons for
a nonpublic, nonsectarian school placement, the provision of
nonpublic, nonsectarian agency services, or the reimbursement for the
placement or services, taking into account the requirements of
subdivision (a) of Section 56365, shall be mailed to all parties to
the hearing not later than 45 days after the expiration of the 30-day
period pursuant to subdivision (c) of Section 56501.5. Either party
to the hearing may request the hearing officer to grant an extension.
The extension shall be granted upon a showing of good cause. An
extension shall extend the time for rendering a final administrative
decision for a period only equal to the length of the extension.
   (4) This subdivision does not preclude a due process hearing
officer from ordering a local educational agency to comply with
procedural requirements under this chapter.
   (g) Subdivision (f) does not alter the burden of proof required in
a due process hearing, or prevent a hearing officer from ordering a
compensatory remedy for an individual with exceptional needs.
   (h) The hearing conducted pursuant to this section shall be the
final administrative determination and binding on all parties.
   (i) In decisions relating to the placement of individuals with
exceptional needs, the person conducting the state hearing shall
consider cost, in addition to all other factors that are considered.
   (j) In a hearing conducted pursuant to this section, the hearing
officer shall not base a decision solely on nonsubstantive procedural
errors, unless the hearing officer finds that the nonsubstantive
procedural errors resulted in the loss of an educational opportunity
to the pupil or interfered with the opportunity of the parent or
guardian of the pupil to participate in the formulation process of
the individualized education program.
   (k) This chapter does not preclude a party aggrieved by the
findings and decisions in a hearing under this section from
exercising the right to appeal the decision to a state court of
competent jurisdiction. An aggrieved party also may exercise the
right to bring a civil action in a district court of the United
States without regard to the amount in controversy, pursuant to
Section 300.516 of Title 34 of the Code of Federal Regulations. An
appeal shall be made within 90 days of receipt of the hearing
decision. During the pendency of an administrative or judicial
proceeding conducted pursuant to Chapter 5 (commencing with Section
56500), the child involved in the hearing shall remain in his or her
present educational placement, unless the public agency and the
parent or guardian of the child agree otherwise. An action brought
under this subdivision shall adhere to Section 300.516(c) of Title 34
of the Code of Federal Regulations.
   (l) A request for a due process hearing arising under subdivision
(a) of Section 56501 shall be filed within two years from the date
the party initiating the request knew or had reason to know of the
facts underlying the basis for the request. In accordance with
Section 1415(f)(3)(D) of Title 20 of the United States Code, the time
period specified in this subdivision does not apply to a parent if
the parent was prevented from requesting the due process hearing due
to either of the following:
   (1) Specific misrepresentations by the local educational agency
that it had solved the problem forming the basis of the due process
hearing request.
   (2) The withholding of information by the local educational agency
from the parent that was required under this part to be provided to
the parent.
   (m) Pursuant to Section 300.511(c) of Title 34 of the Code of
Federal Regulations, each public agency shall keep a list of the
persons who serve as due process hearing officers, in accordance with
Section 56504.5, and the list shall include a statement of the
qualifications of each of those persons. The list of hearing officers
shall be provided to the public agencies by the organization or
entity under contract with the department to conduct due process
hearings.
   (n) A party who filed for a due process hearing prior to the
effective date of this section is not bound by the two-year statute
of limitations time period in subdivision (l) if the party filed a
request within the three-year statute of limitations provision
pursuant to subdivision (l) as it read prior to October 9, 2006.
   (o) This section shall become operative October 9, 2006.
  SEC. 2.  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.