The online versions of legislation provided on this website are not official. Enrolled bills are the final version passed by the Ohio General Assembly and presented to the Governor for signature. The official version of acts signed by the Governor are available from the Secretary of State's Office in the Continental Plaza, 180 East Broad St., Columbus.
|
H. B. No. 618 As IntroducedAs Introduced
127th General Assembly | Regular Session | 2007-2008 |
| |
A BILL
To amend section 3323.05 of the Revised Code to
specify that the school district of residence
bears the burden of persuasion and the burden of
production in an administrative hearing regarding
the provision of special education and related
services to a child with a disability.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That section 3323.05 of the Revised Code be
amended to read as follows:
Sec. 3323.05. The state board of education shall establish
procedures to ensure that children with
disabilities and their
parents
are guaranteed procedural
safeguards under this
chapter
with respect to a free appropriate
public education.
The procedures shall include, but need not be limited to:
(A) An opportunity for the parents of a child with a
disability to examine all
records related to the child
and to
participate in meetings with respect to identification,
evaluation,
and educational placement of the child, and to
obtain an independent educational evaluation
of the child;
(B) Procedures to protect the rights of the child
whenever
the
parents of the child are not
known, an agency after making
reasonable efforts cannot find the
parents, or the
child is a
ward of the state, including the
assignment, in
accordance with
section 3323.051 of the Revised
Code, of an
individual to act as
a surrogate for the parents;
(C) Prior written notice to the child's parents of
a
school
district's proposal or refusal to initiate or change the
identification,
evaluation, or educational placement of the child
or the provision of a free appropriate education for the
child.
The procedures established under this division shall:
(1) Be designed to ensure that the written prior notice is in
the native language of the parents, unless it clearly is not
feasible to do so.
(2) Specify that the prior written notice shall include:
(a) A description of the action proposed or refused by the
district;
(b) An explanation of why the district proposes or refuses to
take the action and a description of each evaluation procedure,
assessment, record, or report the district used as a basis for the
proposed or refused action;
(c) A statement that the parents of a child with a disability
have protection under the procedural safeguards and, if the notice
is not in regard to an initial referral for evaluation, the means
by which a copy of a description of the procedural safeguards can
be obtained;
(d) Sources for parents to contact to obtain assistance in
understanding the provisions of Part B of the "Individuals with
Disabilities Education Improvement Act of 2004";
(e) A description of other options considered by the IEP team
and the reason why those options were rejected;
(f) A description of the factors that are relevant to the
agency's proposal or refusal.
(D) An opportunity for the child's parents to
present
complaints to the superintendent of the child's school
district
of residence with respect to any matter relating to the
identification, evaluation, or
educational placement of the child,
or the provision of a free appropriate public
education under
this chapter.
Within twenty school days after receipt of a complaint, the
district superintendent or the superintendent's designee, without
undue delay and at a time and place convenient to all parties,
shall review the case, may conduct an administrative review, and
shall notify all parties in writing of the superintendent's or
designee's decision. Where the child is placed in a program
operated by a county MR/DD board or other educational agency, the
superintendent shall consult with the administrator of that county
MR/DD board or agency.
Any party aggrieved by the decision of the district
superintendent or the superintendent's designee may file a
complaint with the state board as provided under division (E) of
this section, request mediation as provided under division (F) of
this section, or present a due process complaint notice and
request for a due process hearing in writing to the superintendent
of the district, with a copy to the state board, as provided under
division (G) of this section.
(E) An opportunity for a party to file a complaint with the
state board of education with respect to the identification,
evaluation, or educational placement of the child, or the
provision of a free appropriate public education to such child.
The department of education shall review and, where appropriate,
investigate the complaint and issue findings.
(F) An opportunity for parents and a school district to
resolve through mediation disputes involving any matter.
(1) The procedures established under this section shall
ensure that the mediation process is voluntary on the part of the
parties, is not used to deny or delay a parent's right to a due
process hearing or to deny any other rights afforded under this
chapter, and is conducted by a qualified and impartial mediator
who is trained in effective mediation techniques.
(2) A school district may establish procedures to offer to
parents and schools that choose not to use the mediation process,
an opportunity to meet, at a time and location convenient to the
parents, with a disinterested party to encourage the use, and
explain the benefits, of the mediation process to the parents. The
disinterested party shall be an individual who is under contract
with a parent training and information center or community parent
resource center in the state or is under contract with an
appropriate alternative dispute resolution entity.
(3) The department shall maintain a list of individuals who
are qualified mediators and knowledgeable in laws and regulations
relating to the provision of special education and related
services.
(4) The department shall bear the cost of the mediation
process, including the costs of meetings described in division
(F)(2) of this section.
(5) Each session in the mediation process shall be scheduled
in a timely manner and shall be held in a location that is
convenient to the parties to the dispute.
(6) Discussions that occur during the mediation process shall
be confidential and shall not be used as evidence in any
subsequent due process hearing or civil proceeding.
(7) In the case that a resolution is reached to resolve the
complaint through the mediation process, the parties shall execute
a legally binding agreement that sets forth the resolution and
that:
(a) States that all discussions that occurred during the
mediation process shall be confidential and shall not be used as
evidence in any subsequent due process hearing or civil
proceeding;
(b) Is signed by both the parent and a representative for the
school district who has the authority to bind the district;
(c) Is enforceable in any state court of competent
jurisdiction or in a district court of the United States.
(G)(1) An opportunity for parents or a school district to
present a due process complaint and request for a due process
hearing to the superintendent of the school district of the
child's residence with respect to the identification, evaluation,
or educational placement of the child, or the provision of a free
appropriate public education to the child. The party presenting
the due process complaint and request for a due process hearing
shall provide due process complaint notice to the other party and
forward a copy of the notice to the state board. The due process
complaint notice shall include:
(a) The name of the child, the address of the residence of
the child, or the available contact information in the case of a
homeless child, and the name of the school the child is attending;
(b) A description of the nature of the problem of the child
relating to the proposed initiation or change, including facts
relating to the problem;
(c) A proposed resolution of the problem to the extent known
and available to the party at the time.
A party shall not have a due process hearing until the party,
or the attorney representing the party, files a notice that meets
the requirement for filing a due process complaint notice.
A due process hearing shall be conducted by an impartial
hearing officer in accordance with standards and procedures
adopted by the state board. A hearing officer shall not be an
employee of the state board or any agency involved in the
education or care of the child or a person having a personal or
professional interest that conflicts with the person's objectivity
in the hearing. A hearing officer shall possess knowledge of, and
the ability to understand, the provisions of the "Individuals with
Disabilities Education Improvement Act of 2004," federal and state
regulations pertaining to that act, and legal interpretations of
that act by federal and state courts; possess the knowledge and
ability to conduct hearings in accordance with appropriate
standard legal practice; and possess the knowledge and ability to
render and write decisions in accordance with appropriate standard
legal practice. The due process requirements of section 615 of the
"Individuals with Disabilities Education Improvement Act of 2004,"
20 U.S.C. 1415, apply to due process complaint notices and
requests for due process hearings and to due process hearings held
under division (G) of this section, including, but not limited to,
timelines for requesting hearings, requirements for sufficient
complaint notices, resolution sessions, and sufficiency and
hearing decisions.
(2) Discussions that occur during a resolution session shall
be confidential and shall not be used as evidence in any
subsequent due process hearing or civil proceeding. If a
resolution to the dispute is reached at a resolution session, the
parties must execute a legally binding written settlement
agreement which shall state that all discussions that occurred
during the resolution process shall be confidential and shall not
be used as evidence in any subsequent due process hearing or civil
proceeding.
(3) A party to a hearing under division (G) of this
section
shall be accorded:
(a) The right to be accompanied and advised by counsel and
by
individuals with special knowledge or training with respect to
the
problems of children with disabilities;
(b) The right to present evidence and confront,
cross-examine, and compel the attendance of witnesses;
(c) The right to a written or electronic verbatim record
of
the hearing;
(d) The right to written findings of fact and decisions,
which findings of fact and decisions shall be made available to
the public consistent with the requirements relating to the
confidentiality of personally identifiable data, information, and
records collected and maintained by state educational agencies and
local educational agencies; and shall be transmitted to the
advisory panel established and maintained by the department for
the purpose of providing policy guidance with respect to special
education and related services for children with disabilities in
the state.
(H) An opportunity for any party aggrieved by the findings
and decision rendered in a hearing under division (G) of this
section to appeal within forty-five days of notification of the
decision to the state board, which shall appoint a
state level
officer who shall review the case and issue
a final
order. The
state level officer shall be
appointed and shall review
the case
in accordance with standards
and procedures adopted by
the state
board.
Any party aggrieved by the final order of the
state
level
officer may appeal the final order, in accordance with
Chapter
119. of the Revised Code, within forty-five days
after
notification of the order to the court of common pleas of the
county in which the child's school district of residence is
located, or to a district
court of the United States within
ninety days after the date of
the decision of the state level
review officer, as provided in
section 615(i)(2) of the
"Individuals with Disabilities Education
Improvement Act of
2004," 20 U.S.C. 1415(i)(2).
A child's school district of residence bears the burden of
persuasion and the burden of production with respect to the
provision of a free, appropriate public education to that child in
any hearing conducted under this section.
Section 2. That existing section 3323.05 of the Revised Code
is hereby repealed.
|
|