BILL ANALYSIS �
SENATE COMMITTEE ON EDUCATION
Alan Lowenthal, Chair
2011-2012 Regular Session
BILL NO: SB 462
AUTHOR: Blakeslee
AMENDED: April 25, 2011
FISCAL COMM: Yes HEARING DATE: April 27, 2011
URGENCY: No CONSULTANT:Lynn Lorber
SUBJECT : Special Education Advocates: Certification.
SUMMARY
This bill establishes a voluntary training and
certification program for special education advocates; and,
requires certified advocates to disclose specific
information during a mediation session or upon request by
various parties to a special education complaint.
BACKGROUND
Federal and state laws:
1) Provide both pupils with exceptional needs and their
parents with specific rights, also known as procedural
safeguards. These rights include a request for a due
process hearing, request for mediation before or after
requesting a due process hearing, or request
alternative dispute resolution. Statues do not
require mediation or alternative dispute resolution
prior to a due process hearing. Mediation and
alternative dispute resolution are voluntary, informal
and do not include attorneys. (20 USC 1415 et seq.,
34 CFR 300.500 et seq., Education Code � 56500 et
seq.)
2) Require the local education agency to convene a
resolution meeting within 15 days of receiving notice
of a request for a due process hearing. Attorneys for
the local educational agency are prohibited from
attending unless the parent is accompanied by an
attorney. (20 USC 1415, 34 CFR 300.510, and EC �
56501.5)
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3) Authorize public agencies to establish procedures to
offer parents and schools that choose not to use
mediation, an opportunity to meet with a disinterested
party as follows:
a) Who is under contact with an appropriate
alternative dispute resolution entity, or a
parent training and information center or
community parent resource center established
pursuant to federal law.
b) Who would explain the benefits of, and
encourage the use of, the mediation process to
parents. (34 CFR 300.506(b)(2) and
EC � 56500.3)
State law states legislative intent that parties to special
education disputes be encouraged to seek resolution through
mediation prior to filing a request for a due process
hearing, and prohibits attorneys or other independent
contractors used to provide legal advocacy services from
attending or otherwise participating in the pre-hearing
mediation conferences. However, parents and public
agencies are not precluded from being accompanied and
advised by non-attorney representatives and consulting with
an attorney prior to or following a mediation conference.
(EC � 56500.3)
Twenty special education local plan areas (SELPAs) receive
federal special education funds to develop and test
procedures, materials, and training to support alternative
dispute resolution. Each of these SELPAs receives $15,000
annually.
Current federal and state law require a pupil's
individualized education program (IEP) to be developed,
reviewed or revised by the pupil's IEP team. The team must
include:
a) The pupil's parents, a representative
selected by the parent, or
both.
b) At least one regular education teacher of
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the pupil if participating in
the regular education environment.
c) At least one special education teacher or
provider of the pupil.
d) A representative of the local educational
agency who meets
specified qualifications.
e) At the discretion of the parent or local
educational agency, other
individuals who have knowledge or special
expertise regarding the
pupil.
f) When appropriate, the pupil with exceptional
needs.
g) For pupils with a specific learning
disability, a person qualified to
conduct individual diagnostic exams of children.
h) When appropriate, the infant/toddler service
coordinator.
(20 USC 1400 et seq. and EC 56341)
ANALYSIS
This bill establishes a voluntary training and
certification program for special education advocates and
requires certified advocates to disclose specific
information during a mediation session or upon request by
various parties to a special education complaint.
Specifically, this bill:
1) Requires special education local plan areas (SELPAs),
in collaboration with the California Department of
Education, to do all of the following:
a) Collectively, and in consultation
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with the Office of Administrative Hearings (OAH),
to develop a voluntary special education advocate
certification program that includes a test to
certify that the person has sufficient knowledge
and understanding of the process for resolving
special education disputes. OAH is to administer
this test to advocates seeking certification.
b) Determine the fee to be charged by
a SELPA to a person seeking certification, not to
exceed the reasonable cost of providing training.
c) Provide alternative dispute
resolution training at least twice per year.
This training may be offered by an entity
approved by a SELPA. The training must include
all of the following:
i) At least four hours of
training in alternative dispute resolution.
ii) Relevant ethics training.
iii) Review of relevant special
education laws.
d) Notify OAH whether a person
seeking certification has completed the training.
2) Requires OAH to 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 must
be offered in the native language of the person
seeking certification.
b) Certify a person who has
successfully passed the test and who has
fulfilled the training requirements. The
validity of certification is limited for a period
of five years.
c) Post a registry of certified
special education advocates on its website.
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d) Charge a fee to a person seeking
certification that does not exceed the reasonable
costs of administering the test and maintaining
the registry on its website.
3) Requires a certified special education advocate to do
all of the following:
a) Speak, write, or work on behalf of
a pupil who qualifies as an individual with
exceptional needs.
b) Register with the OAH and renew
certification every five years.
c) Indicate when registering whether
the person is paid or unpaid to serve as an
advocate.
d) If registering as a paid advocate
and is referred by an attorney, report the
identity of the person who employs him or her.
e) Have a report regarding the
frequency of the person's advocacy activities,
the subject matter of the issues upon which he or
she has worked, any fees received for advocacy,
and the length of time he or she took to resolve
each case. This report must be available upon
request by parents, SELPAs, school district of
the California Department of Education.
f) Disclose in writing at the
beginning of a mediation session, the
relationship to the pupil or parents and indicate
whether he or she is receiving payment of any
kind for the advocacy services.
4) Prohibits a certified special education advocate from
being reimbursed by a parent, organization, advocacy
group, or school district for the fees for training
and certification.
5) Prohibits this bill from being construed to allow fees
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and costs awarded to a prevailing party, pursuant to
federal law, to be awarded to a special education
advocate.
6) Provides that a parent is not required to be certified
in order to represent his or her child.
7) Requires a mediator to require non-parent participants
in a mediation session (prior to a due process
hearing) to disclose the relationship to the pupil and
the person's status as an advocate.
8) Requires the Superintendent of Public Instruction
(SPI) to certify that the list currently compiled of
people and organizations that can provide free or
reduced cost representation or other assistance in
preparing for a due process hearing, actually provide
services for free or at a reduced cost. This bill also
deletes the complete discretion of the SPI to
determine which individuals or groups will be included
on the list.
9) Defines "certified special education advocate" as any
non-attorney, paid or unpaid, who speaks, writes, or
works on behalf of a pupil who qualifies as an
individual with exceptional needs and who has been
certified pursuant to this bill.
STAFF COMMENTS
1) Purpose of the bill . According to the author, "The
purpose of this bill is to protect families against
predatory advocates while reducing administrative and
legal costs borne by school districts resulting from
disputes and litigation over the adequacy and
administration of special education Individual
Education Programs (IEPs). Currently, many parents of
children with special needs are being taken advantage
of by advocates pushing them to engage their school or
school district into due process litigation. This
incurs great cost to both the parents and the school
district. This bill would make sure that individuals
who claim to be 'advocates' have adequate training in
alternative dispute resolution and are familiar with
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the legal and fiscal implications of due process
litigation."
2) Good Housekeeping Seal of Approval . The certification
process established by this bill is voluntary.
Advocates who chose not to become certified may
continue to advocate and are not required to meet any
requirements of this bill, such as training or
disclosure of certain information. A certified
advocate could be considered by parents or others to
be of a higher quality or the only advocates permitted
to assist with special education disputes.
3) Existing advocates . This bill requires every person
who seeks certification to receive training, pass a
test, and be recertified every five years. Is it
reasonable to allow a person who currently serves as
an advocate to take the test without first receiving
training for initial certification?
4) Applicability . This bill applies to advocates who may
provide assistance during individualized education
program (IEP) team meetings and mediation. This bill
requires a certified special education advocate to
disclose certain information at the beginning of a
mediation session but does not clearly require this
information to be disclosed at the beginning of an IEP
team meeting. Staff recommends an amendment to make
this clarifying change (page 5, line 1).
5) Paid or unpaid . This bill requires a certified
special education advocate to indicate whether he or
she is paid or unpaid, and the identity of the
employer if the advocate is paid and referred by an
attorney, each time the advocate registers with the
Office of Administrative Hearings (upon initial
certification and every five years thereafter).
Should an advocate who is receiving payment for his or
her advocacy be required to disclose the identity of
the employer whether or not the advocate was referred
by an attorney?
6) Training . This bill requires special education local
plan areas (SELPAs) to provide alternative dispute
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resolution training for people seeking to become a
certified special education advocate. The OAH
currently provides training for its mediators and may
have greater capacity to provide alternative dispute
resolution training. Staff recommends an amendment to
delete the requirement that SELPAs provide training
and instead authorize SELPAs and OAH to offer the
training or contract for the provision of training.
This would allow individuals seeking certification to
receive training from another public or private
provider, yet still be eligible to take the
certification test.
7) Recertification . This bill requires a certified
special education advocate to renew his or her
registration with OAH every five years. This bill
appears to require an advocate to receive the training
and take the test prior to renewal of certification.
Would it be more reasonable to require the advocate to
take the test but without the requirement to also
receive training?
8) List of certified advocates . This bill requires OAH
to post a registry of certified advocates on its
website consistent with current law relative to a list
of people or organizations that provide free or
reduced cost representation or assistance with due
process hearings. This bill also requires the
Superintendent of Public Instruction (SPI) to certify
that the people and organizations on the list provide
services for free at a reduced cost. This implies
that the SPI will be required to certify that
certified special education advocates are either
unpaid or paid a low fee prior to those advocates
being listed on OAH's website.
This bill does not clearly require the SPI to include
certified special education advocates that are unpaid
or paid a low fee on the SPI's list, which appears to
relate to representation or assistance with due
process hearings. Staff recommend amendments to
clarify whether certified special education advocates
are to be included on the SPI's list, whether the
SPI's list is to be broadened to include other
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advocates for mediation and IEP team meetings, and
reinstate current provisions that give the SPI
complete discretion over which individuals and
organizations are included on the list (page 8, lines
16-19).
9) Technical amendment . This bill provides that a
certified special education advocate may not be
reimbursed for any training or certification fees.
Staff recommends an amendment to more specifically
prohibit a certified advocate from being reimbursed
for these fees (page 5, line 5).
10) Prior legislation . AB 1517 (Berryhill, 2009) would
have required the California Department of Education
(CDE) to establish and administer grants to establish
alternative dispute resolution programs for special
education. AB 1517 was held on the Assembly
Appropriations Committee's suspense file.
SUPPORT
San Luis Obispo County Office of Education
OPPOSITION
Disability Rights California