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| To amend section 3323.05 of the Revised Code to | 1 |
| specify that the school district of residence | 2 |
| bears the burden of persuasion and the burden of | 3 |
| production in an administrative hearing regarding | 4 |
| the provision of special education and related | 5 |
| services to a child with a disability. | 6 |
| Section 1. That section 3323.05 of the Revised Code be | 7 |
| amended to read as follows: | 8 |
| Sec. 3323.05. The state board of education shall establish | 9 |
| procedures to ensure that children with disabilities and their | 10 |
| parents are guaranteed procedural safeguards under this chapter | 11 |
| with respect to a free appropriate public education. | 12 |
| The procedures shall include, but need not be limited to: | 13 |
| (A) An opportunity for the parents of a child with a | 14 |
| disability to examine all records related to the child and to | 15 |
| participate in meetings with respect to identification, | 16 |
| evaluation, and educational placement of the child, and to | 17 |
| obtain an independent educational evaluation of the child; | 18 |
| (B) Procedures to protect the rights of the child whenever | 19 |
| the parents of the child are not known, an agency after making | 20 |
| reasonable efforts cannot find the parents, or the child is a | 21 |
| ward of the state, including the assignment, in accordance with | 22 |
| section 3323.051 of the Revised Code, of an individual to act as | 23 |
| a surrogate for the parents; | 24 |
| (C) Prior written notice to the child's parents of a school | 25 |
| district's proposal or refusal to initiate or change the | 26 |
| identification, evaluation, or educational placement of the child | 27 |
| or the provision of a free appropriate education for the child. | 28 |
| The procedures established under this division shall: | 29 |
| (1) Be designed to ensure that the written prior notice is in | 30 |
| the native language of the parents, unless it clearly is not | 31 |
| feasible to do so. | 32 |
| (2) Specify that the prior written notice shall include: | 33 |
| (a) A description of the action proposed or refused by the | 34 |
| district; | 35 |
| (b) An explanation of why the district proposes or refuses to | 36 |
| take the action and a description of each evaluation procedure, | 37 |
| assessment, record, or report the district used as a basis for the | 38 |
| proposed or refused action; | 39 |
| (c) A statement that the parents of a child with a disability | 40 |
| have protection under the procedural safeguards and, if the notice | 41 |
| is not in regard to an initial referral for evaluation, the means | 42 |
| by which a copy of a description of the procedural safeguards can | 43 |
| be obtained; | 44 |
| (d) Sources for parents to contact to obtain assistance in | 45 |
| understanding the provisions of Part B of the "Individuals with | 46 |
| Disabilities Education Improvement Act of 2004"; | 47 |
| (e) A description of other options considered by the IEP team | 48 |
| and the reason why those options were rejected; | 49 |
| (f) A description of the factors that are relevant to the | 50 |
| agency's proposal or refusal. | 51 |
| (D) An opportunity for the child's parents to present | 52 |
| complaints to the superintendent of the child's school district | 53 |
| of residence with respect to any matter relating to the | 54 |
| identification, evaluation, or educational placement of the child, | 55 |
| or the provision of a free appropriate public education under | 56 |
| this chapter. | 57 |
| Within twenty school days after receipt of a complaint, the | 58 |
| district superintendent or the superintendent's designee, without | 59 |
| undue delay and at a time and place convenient to all parties, | 60 |
| shall review the case, may conduct an administrative review, and | 61 |
| shall notify all parties in writing of the superintendent's or | 62 |
| designee's decision. Where the child is placed in a program | 63 |
| operated by a county MR/DD board or other educational agency, the | 64 |
| superintendent shall consult with the administrator of that county | 65 |
| MR/DD board or agency. | 66 |
| Any party aggrieved by the decision of the district | 67 |
| superintendent or the superintendent's designee may file a | 68 |
| complaint with the state board as provided under division (E) of | 69 |
| this section, request mediation as provided under division (F) of | 70 |
| this section, or present a due process complaint notice and | 71 |
| request for a due process hearing in writing to the superintendent | 72 |
| of the district, with a copy to the state board, as provided under | 73 |
| division (G) of this section. | 74 |
| (E) An opportunity for a party to file a complaint with the | 75 |
| state board of education with respect to the identification, | 76 |
| evaluation, or educational placement of the child, or the | 77 |
| provision of a free appropriate public education to such child. | 78 |
| The department of education shall review and, where appropriate, | 79 |
| investigate the complaint and issue findings. | 80 |
| (F) An opportunity for parents and a school district to | 81 |
| resolve through mediation disputes involving any matter. | 82 |
| (1) The procedures established under this section shall | 83 |
| ensure that the mediation process is voluntary on the part of the | 84 |
| parties, is not used to deny or delay a parent's right to a due | 85 |
| process hearing or to deny any other rights afforded under this | 86 |
| chapter, and is conducted by a qualified and impartial mediator | 87 |
| who is trained in effective mediation techniques. | 88 |
| (2) A school district may establish procedures to offer to | 89 |
| parents and schools that choose not to use the mediation process, | 90 |
| an opportunity to meet, at a time and location convenient to the | 91 |
| parents, with a disinterested party to encourage the use, and | 92 |
| explain the benefits, of the mediation process to the parents. The | 93 |
| disinterested party shall be an individual who is under contract | 94 |
| with a parent training and information center or community parent | 95 |
| resource center in the state or is under contract with an | 96 |
| appropriate alternative dispute resolution entity. | 97 |
| (3) The department shall maintain a list of individuals who | 98 |
| are qualified mediators and knowledgeable in laws and regulations | 99 |
| relating to the provision of special education and related | 100 |
| services. | 101 |
| (4) The department shall bear the cost of the mediation | 102 |
| process, including the costs of meetings described in division | 103 |
| (F)(2) of this section. | 104 |
| (5) Each session in the mediation process shall be scheduled | 105 |
| in a timely manner and shall be held in a location that is | 106 |
| convenient to the parties to the dispute. | 107 |
| (6) Discussions that occur during the mediation process shall | 108 |
| be confidential and shall not be used as evidence in any | 109 |
| subsequent due process hearing or civil proceeding. | 110 |
| (7) In the case that a resolution is reached to resolve the | 111 |
| complaint through the mediation process, the parties shall execute | 112 |
| a legally binding agreement that sets forth the resolution and | 113 |
| that: | 114 |
| (a) States that all discussions that occurred during the | 115 |
| mediation process shall be confidential and shall not be used as | 116 |
| evidence in any subsequent due process hearing or civil | 117 |
| proceeding; | 118 |
| (b) Is signed by both the parent and a representative for the | 119 |
| school district who has the authority to bind the district; | 120 |
| (c) Is enforceable in any state court of competent | 121 |
| jurisdiction or in a district court of the United States. | 122 |
| (G)(1) An opportunity for parents or a school district to | 123 |
| present a due process complaint and request for a due process | 124 |
| hearing to the superintendent of the school district of the | 125 |
| child's residence with respect to the identification, evaluation, | 126 |
| or educational placement of the child, or the provision of a free | 127 |
| appropriate public education to the child. The party presenting | 128 |
| the due process complaint and request for a due process hearing | 129 |
| shall provide due process complaint notice to the other party and | 130 |
| forward a copy of the notice to the state board. The due process | 131 |
| complaint notice shall include: | 132 |
| (a) The name of the child, the address of the residence of | 133 |
| the child, or the available contact information in the case of a | 134 |
| homeless child, and the name of the school the child is attending; | 135 |
| (b) A description of the nature of the problem of the child | 136 |
| relating to the proposed initiation or change, including facts | 137 |
| relating to the problem; | 138 |
| (c) A proposed resolution of the problem to the extent known | 139 |
| and available to the party at the time. | 140 |
| A party shall not have a due process hearing until the party, | 141 |
| or the attorney representing the party, files a notice that meets | 142 |
| the requirement for filing a due process complaint notice. | 143 |
| A due process hearing shall be conducted by an impartial | 144 |
| hearing officer in accordance with standards and procedures | 145 |
| adopted by the state board. A hearing officer shall not be an | 146 |
| employee of the state board or any agency involved in the | 147 |
| education or care of the child or a person having a personal or | 148 |
| professional interest that conflicts with the person's objectivity | 149 |
| in the hearing. A hearing officer shall possess knowledge of, and | 150 |
| the ability to understand, the provisions of the "Individuals with | 151 |
| Disabilities Education Improvement Act of 2004," federal and state | 152 |
| regulations pertaining to that act, and legal interpretations of | 153 |
| that act by federal and state courts; possess the knowledge and | 154 |
| ability to conduct hearings in accordance with appropriate | 155 |
| standard legal practice; and possess the knowledge and ability to | 156 |
| render and write decisions in accordance with appropriate standard | 157 |
| legal practice. The due process requirements of section 615 of the | 158 |
| "Individuals with Disabilities Education Improvement Act of 2004," | 159 |
| 20 U.S.C. 1415, apply to due process complaint notices and | 160 |
| requests for due process hearings and to due process hearings held | 161 |
| under division (G) of this section, including, but not limited to, | 162 |
| timelines for requesting hearings, requirements for sufficient | 163 |
| complaint notices, resolution sessions, and sufficiency and | 164 |
| hearing decisions. | 165 |
| (2) Discussions that occur during a resolution session shall | 166 |
| be confidential and shall not be used as evidence in any | 167 |
| subsequent due process hearing or civil proceeding. If a | 168 |
| resolution to the dispute is reached at a resolution session, the | 169 |
| parties must execute a legally binding written settlement | 170 |
| agreement which shall state that all discussions that occurred | 171 |
| during the resolution process shall be confidential and shall not | 172 |
| be used as evidence in any subsequent due process hearing or civil | 173 |
| proceeding. | 174 |
| (3) A party to a hearing under division (G) of this section | 175 |
| shall be accorded: | 176 |
| (a) The right to be accompanied and advised by counsel and by | 177 |
| individuals with special knowledge or training with respect to the | 178 |
| problems of children with disabilities; | 179 |
| (b) The right to present evidence and confront, | 180 |
| cross-examine, and compel the attendance of witnesses; | 181 |
| (c) The right to a written or electronic verbatim record of | 182 |
| the hearing; | 183 |
| (d) The right to written findings of fact and decisions, | 184 |
| which findings of fact and decisions shall be made available to | 185 |
| the public consistent with the requirements relating to the | 186 |
| confidentiality of personally identifiable data, information, and | 187 |
| records collected and maintained by state educational agencies and | 188 |
| local educational agencies; and shall be transmitted to the | 189 |
| advisory panel established and maintained by the department for | 190 |
| the purpose of providing policy guidance with respect to special | 191 |
| education and related services for children with disabilities in | 192 |
| the state. | 193 |
| (H) An opportunity for any party aggrieved by the findings | 194 |
| and decision rendered in a hearing under division (G) of this | 195 |
| section to appeal within forty-five days of notification of the | 196 |
| decision to the state board, which shall appoint a state level | 197 |
| officer who shall review the case and issue a final order. The | 198 |
| state level officer shall be appointed and shall review the case | 199 |
| in accordance with standards and procedures adopted by the state | 200 |
| board. | 201 |
| Any party aggrieved by the final order of the state level | 202 |
| officer may appeal the final order, in accordance with Chapter | 203 |
| 119. of the Revised Code, within forty-five days after | 204 |
| notification of the order to the court of common pleas of the | 205 |
| county in which the child's school district of residence is | 206 |
| located, or to a district court of the United States within | 207 |
| ninety days after the date of the decision of the state level | 208 |
| review officer, as provided in section 615(i)(2) of the | 209 |
| "Individuals with Disabilities Education Improvement Act of | 210 |
| 2004," 20 U.S.C. 1415(i)(2). | 211 |
| A child's school district of residence bears the burden of | 212 |
| persuasion and the burden of production with respect to the | 213 |
| provision of a free, appropriate public education to that child in | 214 |
| any hearing conducted under this section. | 215 |
| Section 2. That existing section 3323.05 of the Revised Code | 216 |
| is hereby repealed. | 217 |