California Senate Bill SB462 Latest Draft

 BILL NUMBER: SB 462AMENDED BILL TEXT AMENDED IN SENATE MAY 31, 2011 AMENDED IN SENATE MAY 4, 2011 AMENDED IN SENATE APRIL 25, 2011 AMENDED IN SENATE MARCH 25, 2011 INTRODUCED BY Senator Blakeslee (Coauthor: Senator Runner) FEBRUARY 16, 2011 An act to amend Section 56502 of, and to add Chapter 4.2 (commencing with Section 56395) to Part 30 of Division 4 of Title 2 of, the Education Code, relating to special education. LEGISLATIVE COUNSEL'S DIGEST SB 462, as amended, Blakeslee. Special education: special education advocates: certification. Existing law requires local educational agencies to initiate, and individualized education program teams to conduct, meetings for the purposes of developing, reviewing, and revising the individualized education program of each individual with exceptional needs, as specified. Existing law also provides that it is the intent of the Legislature that parties to special education disputes be encouraged to seek resolution through mediation in a nonadversarial atmosphere, which may not be attended by attorneys or other independent contractors used to provide legal advocacy services, prior to filing a request for a due process hearing. Existing law provides, however, that this does not preclude the parent or public agency from being accompanied and advised by nonattorney representatives in mediation conferences. This bill would  require   authorize a  special education local plan  areas   area  ,  collectively, and  in collaboration with the State Department of Education, to develop a voluntary special education advocate certification program for persons who would participate, upon the invitation of a parent, as a member of a pupil' s individualized education program team, or, upon the invitation of a parent, in a mediation conference, as specified. The bill would authorize  a  special education local plan  areas   area  to provide alternative dispute resolution training, and require the  Office of Administrative Hearings   Board of Behavioral Sciences  to administer a test, to persons seeking certification, as specified. The bill would also require the  Office of Administrative Hearings   Board of Behavioral Sciences  to certify  , and maintain a registry of,  persons who have successfully passed the test and completed the training. The bill would require a certified special education advocate to disclose his or her relationship to the pupil or his or her parents, as specified.  Because the bill would require local educational agencies to perform additional duties, the bill would impose a state-mandated local program.  Existing law provides that upon receipt by the Superintendent of Public Instruction of a written request for a due process hearing regarding a proposal or refusal to initiate or change the identification, assessment, or educational placement of a child with exceptional needs, the provision of a free appropriate public education to the child, or the availability of a program appropriate for the child, including the question of financial responsibility, from the parent or guardian or public agency, the Superintendent or his or her designee or designees immediately shall notify, in writing, all parties and provide them 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. Existing law provides that the Superintendent or his or her designee shall have complete discretion in determining which individuals or groups shall be included on the list. This bill would require the Superintendent or his or her designee to certify that the listed persons, including  certified  special education advocates, or organizations provide services for free or at a reduced cost.  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   no  . THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Chapter 4.2 (commencing with Section 56395) is added to Part 30 of Division 4 of Title 2 of the Education Code, to read: CHAPTER 4.2. SPECIAL EDUCATION ADVOCATES 56395. It is the intent of the Legislature to protect families of individuals with exceptional needs and to improve the relationship between special education advocates and school districts by providing a voluntary special education advocate certification program. 56395.1. For the purpose of this chapter: (a) "Alternative dispute resolution" means nonadversarial techniques used to reduce conflict and to come to a mutually beneficial agreement. (b) "Certified special education advocate" means any nonattorney person, paid or unpaid, who speaks, writes, or works on behalf of a pupil who qualifies as an individual with exceptional needs, as defined in Section 56026, and who has been certified pursuant to the provisions of this chapter. 56395.2. (a)  Special   A special  education local plan  areas   area  , in collaboration with the department,  shall   may  do all of the following:  (1)    Collectively, and in consultation with the Office of Administrative Hearings, develop a voluntary special education   (1)     Develop a voluntary special education  advocate certification program that includes a test, which shall be administered by the  Office of Administrative Hearings   Board of Behavioral Sciences  , to certify that the person has sufficient knowledge and understanding of the process for resolving special education disputes. (2) Determine the yearly fee to be charged  by a special education local plan area  to a person seeking certification as a special education advocate that shall not exceed the reasonable costs of providing training pursuant to subdivision (b). (3) Notify the  Office of Administrative Hearings   Board of Behavioral Sciences  whether a person seeking certification has completed alternative dispute resolution training. (b)  Special education local plan areas are authorized to   A special education local plan area may  provide alternative dispute resolution training at least twice per year for persons seeking certification as a special education advocate. This training also may be offered by an entity pursuant to a contract with a special education local plan area. The training may consist of all of the following: (1) At least four hours of alternative dispute resolution training. (2) Relevant ethics training. (3) Review of relevant special education laws. 56395.3. The  Office of Administrative Hearings   Board of Behavioral Sciences  shall 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 shall be offered in the native language of the person seeking certification as a special education advocate. (b) Certify a person who has successfully passed the test described in subdivision (a) and who has fulfilled the training requirements listed in subdivision (b) of Section 56395.2. Certification may be granted for a period not to exceed five years.  (c) Post a registry of certified special education advocates on its Internet Web site.   (d)   (c)  Charge a fee to a person seeking certification as a special education advocate that shall not exceed the reasonable costs of administering the test pursuant to subdivision (a)  and maintaining the registry pursuant to subdivision (c)  . 56395.4. (a) A certified special education advocate shall do all of the following: (1) Upon the invitation of a parent, speak, write, or work on behalf of a pupil who qualifies as an individual with exceptional needs pursuant to paragraph (1) of subdivision (b) of Section 56341, or subdivision (b) of Section 56500.3. (2) Register with the  Office of Administrative Hearings   Board of Behavioral Sciences  and renew their certification every five years by successfully passing the test described in subdivision (a) of Section 56395.3. Additional training shall not be required in order to renew certification. Registrants shall indicate whether they are a paid or an unpaid advocate. If a person registers as a paid advocate, and he or she is referred by an attorney, he or she shall be required to report the identity of the person who employs him or her.  (3) Have a report, available upon request by parents, special education local plan area staff, a school district, or the department, regarding the frequency of their advocacy activities, the subject matter of the issues upon which he or she has worked, the fees, if any, he or she has received for his or her advocacy, and the length of time he or she took to resolve each case. (4) Disclose at the beginning of an individualized education program team meeting and at the beginning of a mediation session, in writing, his or her relationship to the pupil or his or her parents and indicate whether he or she is receiving payment of any kind for his or her services. (b) A certified special education advocate shall not be reimbursed by a parent, organization, advocacy group, or school district for the certification fee imposed pursuant to paragraph (2) of subdivision (a) of Section 56395.2 or subdivision  (d)   (c)  of Section 56395.3. (c) Nothing in this section shall be construed to allow fees or costs awarded to a prevailing party pursuant to the federal Individuals with Disabilities Education Act (20 U.S.C. Sec. 1400 et seq.) to be awarded to a special education advocate. 56395.5. (a) A parent, as defined in Section 56028, is not required to be certified pursuant to the provisions of this chapter in order to represent his or her child. (b) A mediator, as described in subdivision (d) of Section 56500.3, shall require nonparent participants in a mediation session to disclose their relationship to the pupil and their status as an advocate. SEC. 2. Section 56502 of the Education Code is amended to read: 56502. (a) All requests for a due process hearing shall be filed with the Superintendent in accordance with Section 300.508(a) and (b) of Title 34 of the Code of Federal Regulations. (b) The Superintendent shall develop a model form to assist parents in filing a request for due process that is in accordance with Section 300.509 of Title 34 of the Code of Federal Regulations. (c) (1) The party, or the attorney representing 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 due process hearing request notice shall remain confidential. In accordance with Section 1415(b)(7)(A) of Title 20 of the United States Code, the request shall include the following: (A) The name of the child, the address of the residence of the child, or available contact information in the case of a homeless child, and the name of the school the child is attending. (B) In the case of a homeless child or youth within the meaning of paragraph (2) of Section 725 of the federal McKinney-Vento Homeless Assistance Act (42 U.S.C. Sec. 11434a(2)), available contact information for the child and the name of the school the child is attending. (C) A description of the nature of the problem of the child relating to the proposed initiation or change, including facts relating to the problem. (D) A proposed resolution of the problem to the extent known and available to the party at the time. (2) A party may not have a due process hearing until the party, or the attorney representing the party, files a request that meets the requirements listed in this subdivision. (d) (1) The due process hearing request notice required by Section 1415(b)(7)(A) of Title 20 of the United States Code shall be deemed to be sufficient unless the party receiving the notice notifies the due process hearing officer and the other party in writing that the receiving party believes the due process hearing request notice has not met the notice requirements. The party providing a hearing officer notification shall provide the notification within 15 days of receiving the due process hearing request notice. Within five days of receipt of the notification, the hearing officer shall make a determination on the face of the notice of whether the notification meets the requirements of Section 1415(b)(7)(A) of Title 20 of the United States Code, and shall immediately notify the parties in writing of the determination. (2) (A) The response to the due process hearing request notice shall be made within 10 days of receiving the request notice in accordance with Section 1415(c)(2)(B) of Title 20 of the United States Code. (B) In accordance with Section 300.508(e)(1) of Title 34 of the Code of Federal Regulations, if the local educational agency has not sent a prior written notice under Section 56500.4 and Section 300.503 of Title 34 of the Code of Federal Regulations to the parent regarding the subject matter contained in the due process hearing request of the parent, the response from the local educational agency to the parent shall include all of the following: (i) An explanation of why the agency proposed or refused to take the action raised in the due process hearing request. (ii) A description of other options that the individualized education program team considered and the reasons why those options were rejected. (iii) A description of each assessment procedure, assessment, record, or report the agency used as the basis for the proposed or refused action. (iv) A description of other factors that are relevant to the proposed or refused action of the agency. (C) A response by a local educational agency under subparagraph (B) shall not be construed to preclude the local educational agency from asserting that the due process request of the parent was insufficient, where appropriate. (D) Except as provided under subparagraph (B), the party receiving a due process hearing request notice, within 10 days of receiving the notice, shall send to the other party, in accordance with Section 300.508(f) of Title 34 of the Code of Federal Regulations, a response that specifically addresses the issues raised in the due process hearing request notice. (e) A party may amend a due process hearing request notice only if the other party consents in writing to the amendment and is given the opportunity to resolve the hearing issue through a meeting held pursuant to Section 1415(f)(1)(B) of Title 20 of the United States Code, or the due process hearing officer grants permission, except that the hearing officer may only grant permission at any time not later than five days before a due process hearing occurs. The applicable timeline for a due process hearing under this chapter shall recommence at the time the party files an amended notice, including the timeline under Section 1415(f)(1)(B) of Title 20 of the United States Code. (f) 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. (g) Notwithstanding any procedure set forth in this chapter, a public agency and a parent, if the party initiating the hearing so chooses, may meet informally to resolve an 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 agency or his or her designee. A designee appointed pursuant to this subdivision shall have the authority to resolve the issue or issues. (h) Upon receipt by the Superintendent of a written request by the parent or public agency, the Superintendent or his or her designee or designees immediately shall 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, including  certified  special education advocates, 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 certify that the listed persons or organizations provide services for free or at a reduced cost, but shall otherwise have complete discretion in determining which individuals or groups shall be included on the list. (i) In accordance with Section 1415(f)(3)(B) of Title 20 of the United States Code, the party requesting the due process hearing shall not be allowed to raise issues at the due process hearing that were not raised in the notice filed under this section, unless the other party agrees otherwise.  SEC. 3.   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.