By: Watson, Zaffirini S.B. No. 1489
A BILL TO BE ENTITLED
AN ACT
relating to optional dispute resolution methods for school
districts and parents of students seeking or receiving special
education services.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter A, Chapter 29, Education Code, is
amended by adding Sections 29.020 and 29.021 to read as follows:
Sec. 29.020. OPTIONAL DISPUTE RESOLUTION METHODS. (a) A
school district shall make available and provide information to
parents regarding optional dispute resolution methods that may be
used when a dispute arises between the district and a parent of a
student with a disability regarding:
(1) identification of the student as a student
entitled to special education services;
(2) evaluation or educational placement of the
student; or
(3) the provision of a free appropriate public
education to the student.
(b) A school district's optional dispute resolution
methods:
(1) must include:
(A) requesting mediation through the agency in
accordance with 20 U.S.C. Section 1415(e) and 34 C.F.R. Section
300.506;
(B) requesting independent individualized
education program facilitation, as described by Section 29.021, if
the district is included within the boundaries of a regional
education service center participating in the pilot program
implemented under that section; and
(C) filing a complaint with the agency in
accordance with 34 C.F.R. Section 300.153; and
(2) may include:
(A) convening a meeting of a student's admission,
review, and dismissal committee;
(B) meeting with a student's teachers;
(C) meeting with one or more of the following:
(i) a campus administrator;
(ii) the district special education
director or the director of a shared services arrangement under
Section 29.007 to which the district is a party;
(iii) the district superintendent; or
(iv) the board of trustees of the district;
and
(D) requesting individualized education program
facilitation similar to the facilitation provided under the pilot
program implemented under Section 29.021, except that facilitation
may be provided by either an independent facilitator or a district
employee serving as the facilitator.
(c) The use of an optional dispute resolution method made
available under this section and the availability of those methods
may not in any manner be used to deny or delay the right to a special
education due process hearing in accordance with federal law.
(d) Notwithstanding Subsection (c), on the filing of a
request for a special education due process hearing in accordance
with federal law, the school district and the parent shall be
provided with the opportunity to attempt to resolve the dispute
between the district and the parent through the agency's mediation
process, provided that both the school district and the parent
agree to participate in the mediation.
(e) If a school district and a parent participate in
mediation under this section:
(1) the fact that the mediation occurred is not
admissible into evidence in any subsequent proceeding involving the
subject matter of the mediation;
(2) the mediator may not be subpoenaed to testify
regarding the subject matter of the mediation at any subsequent
special education due process hearing or civil action arising under
federal special education law; and
(3) the school district and parent are not entitled to
access to any records created by the mediator in connection with the
mediation.
(f) Unless specifically provided otherwise by federal or
other state law, the participation of an individualized education
program facilitator in the development of a student's
individualized education program does not violate confidentiality
provisions under federal or state law.
(g) If a school district chooses to offer individualized
education program facilitation under Subsection (b)(2)(D), the
facilitation must be provided at no cost to a parent.
(h) The commissioner shall adopt rules necessary to
implement this section.
Sec. 29.021. PILOT PROGRAM FOR INDEPENDENT INDIVIDUALIZED
EDUCATION PROGRAM FACILITATION. (a) The agency shall develop an
independent individualized education program facilitation process
as a method of alternative dispute resolution.
(b) The agency shall implement the process developed under
Subsection (a) on a pilot program basis within the boundaries of
three regional education service centers selected by the
commissioner for that purpose. Not more than 500 facilitations may
be conducted under the pilot program.
(c) Notwithstanding Subsection (b), if the commissioner
determines that adequate funding is available, the commissioner may
authorize:
(1) the expansion of the pilot program to additional
areas; or
(2) a greater number of facilitations than the limit
specified under that subsection.
(d) The commissioner shall select the participating
regional education service centers based on criteria established by
the commissioner. The selection criteria must include criteria
relating to:
(1) the geographic location of a center;
(2) student enrollment within the boundaries of a
center;
(3) the number of formal complaints regarding special
education issues filed by persons within the boundaries of a
center; and
(4) the number of mediations and special education due
process hearings requested by persons within the boundaries of a
center.
(e) The facilitation process may be used when a school
district located within the boundaries of a participating regional
education service center and the parents of a student with a
disability agree on the value of involving an impartial facilitator
in the procedures used to develop the student's individualized
education program.
(f) The role of a facilitator under the facilitation process
developed under this section is to assist in creating an atmosphere
for fair communication and the successful development of a
student's individualized education program.
(g) Each participating regional education service center
shall develop a network of impartial facilitators to be made
available on request to school districts and parents that choose to
use the facilitation process developed under this section.
Facilitators must be provided at no cost to a school district or
parent.
(h) The commissioner shall adopt rules necessary to
implement this section.
(i) Not later than January 1, 2011, the agency shall submit
a report to the legislature regarding the implementation and
effectiveness of the pilot program. This subsection expires
September 1, 2011.
SECTION 2. This Act applies beginning with the 2009-2010
school year.
SECTION 3. This Act does not make an appropriation. A
provision in this Act that creates a new governmental program,
creates a new entitlement, or imposes a new duty on a governmental
entity is not mandatory during a fiscal period for which the
legislature has not made a specific appropriation to implement the
provision, unless funding is provided from another source such as
federal funds.
SECTION 4. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2009.