As Amended by Senate Committee
Session of 1998
SENATE BILL No. 591
By Committee on Education
2-4
10
AN ACT revising the special education for exceptional
children act;
11 amending K.S.A.
38-1513a, 72-961, 72-963, 72-963a, 72-963c, 72-964,
12 72-965, 72-966,
72-967, 72-970, 72-971, 72-973, 72-973a, 72-975,
13 72-976, 72-977, 72-979
and 72-981 and K.S.A. 1997 Supp. 72-962, 72-
14 968, 72-974, 72-978,
72-983 and 72-53,109 and repealing the existing
15 sections; also
repealing K.S.A. 72-933, 72-963b, 72-969, 72-972
and,
16 72-980, 72-5392,
72-5393 and 72-5394.
17
18 Be it enacted by the Legislature of the
State of Kansas:
19 Section 1. K.S.A.
72-961 is hereby amended to read as follows: 72-
20 961. This act shall be known and may be
cited as the ``special education
21 for exceptional children act.'' It
is the purpose and intention The purposes
22 of this act are to provide
for educational opportunities which will con-
23 tribute to the development of each
exceptional child in this state in accord
24 with his or her abilities and
capacities assure compliance with the federal
25 law and to provide for an appropriate
public education for exceptional
26 children. Notwithstanding any
provision of this act to the contrary,
27 nothing in this act, except for the
provision of special education for
28 gifted children and the requirement
for parental consent, is in-
29 tended to create, nor shall any
provision of this act be construed in
30 any manner to create, rights in
addition to or in excess of those
31 created by federal law.
32 Sec. 2. K.S.A. 1997
Supp. 72-962 is hereby amended to read as fol-
33 lows: 72-962. As used in this act:
34 (a) ``School district''
means any public school district.
35 (b) ``Board'' means the
board of education of any school district.
36 (c) ``State board''
means the state board of education.
37 (d) ``Department'' means
the state department of education.
38 (e) ``State
institution'' means Topeka state hospital,
Osawatomie state
39 hospital, Rainbow mental health facility,
Larned state hospital, Parsons
40 state hospital and training center,
Winfield state hospital and training
41 center, Kansas
neurological institute and, any juvenile
correctional facility
42 as defined by K.S.A. 38-1602, and
amendments thereto, and any correc-
43 tional institution as defined by K.S.A.
75-5202, and amendments thereto.
SB 591--Am.
2
1 (f) ``Exceptional
children'' means persons who:
2 (1) Are school
age, to be determined in accordance with rules and
3 regulations adopted by the state
board, which age may differ from the
4 ages of children required to attend
school under the provisions of K.S.A.
5 72-1111, and amendments thereto;
and
6 (2) differ
in physical, mental, social, emotional or educational
char-
7 acteristics to the extent
that special education and related
services are
8 necessary to enable them to
receive educational benefits in
accordance
9 with their abilities or
capacities. The term
exceptional children includes
10 children with disabilities
and or gifted
children.
11 (g) ``Gifted children''
means exceptional children who are determined
12 to be within the gifted category of
exceptionality as such category is de-
13 fined in by the
state plan board.
14 (h) ``Special education
services'' means programs for which
special-
15 ized training, instruction,
programming techniques, facilities and equip-
16 ment may be needed for the
education of exceptional children. specially
17 designed instruction provided at no cost
to parents to meet the unique
18 needs of an exceptional child,
including:
19 (1) Instruction
conducted in the classroom, in the home, in hospitals
20 and institutions, and in other settings;
and
21 (2) instruction in
physical education.
22 (i) ``Special teacher''
means a person, employed by or under contract
23 with a school district or a state
institution for to provide special
education
24 or related services, who
is:
25 (1) A
teacher person qualified to
instruct provide special education
26 or related services to exceptional
children as determined by standards
27 established by the state board and
who is so certified by the state board;
28 or
29 (2) a
paraprofessional person qualified to assist
certificated teachers
30 in the instruction
provision of special education or related services
to
31 exceptional children as determined by
standards established by the state
32 board and who is so approved by the
state board.
33 (j) ``State plan'' means
the state plan for special education and related
34 services authorized by this act.
35 (k) ``Agency'' means
boards and, the secretary of social and
rehabili-
36 tation services, the commissioner of the
juvenile justice authority, and the
37 secretary of corrections.
38 (l) ``Lawful
custodian'' means a parent or a person acting as
parent.
39 If none of the above is known or
can be found, an agency shall cause
40 proper proceedings to be instituted
pursuant to the Kansas code for care
41 of children to determine whether a
child is a child in need of care. For a
42 child whose custodian is the
secretary of social and rehabilitation services,
43 the term lawful custodian means the
secretary except, when used in
SB 591--Am.
3
1 K.S.A. 72-972 through 72-975,
and amendments to such sections, the
2 term means an education
advocate.
3
(m) ``Parent'' means a natural parent, an adoptive
parent, or a step-
4 parent.
For purposes of rights conferred upon parents by this
act, the
5 term parent includes
persons acting as parents and a legal guardian
or
6 an education
advocates
advocate.
7 (n)
(m) ``Person acting as
parent'' means: (1) A guardian or conser-
8 vator; or
9 (2) a
person, other than a parent, who:
(A) Is liable by law to maintain,
10 care for, or support
the a
child, or who;
(B) has actual care and control
11 of the
a child and is contributing the
major portion of the cost of support
12 of the child, or
who; (C) has actual care
and control of the
a child with
13 the written consent of a person who
has legal custody of the
child,;
or
14 who
(D) has been granted custody of the
child by a court of competent
15 jurisdiction.
16
(o) (n)
(m) ``Education advocate'' means a person
appointed by the
17 state board in accordance with the
provisions of K.S.A. 38-1513a, and
18 amendments thereto. A person appointed as
an education advocate for a
19 child shall not be:
20 (1) An employee of the
agency which is required by law to provide
21 special education services for the
child, or;
22 (2) an employee of the
state board, the department, or any agency
23 which is directly involved in providing
educational services for the child,;
24 or
25 (3) any person having a
professional or personal interest which would
26 conflict with the interests of the
child.
27 (o)
(n) ``Appropriate
Free appropriate public education'' means
spe-
28 cial education and related services
that:
29 (1) Are provided at
public expenses
expense, under public supervi-
30 sion and direction, and without
charge;
31 (2) meet the
standards of the state board;
32 (3) include an
appropriate preschool, elementary, or secondary school
33 education; and
34 (4) are provided in
conformity with an individualized education pro-
35 gram.
36
(p) (o) ``Federal
law'' means the individuals with disabilities educa-
37 tion act, as amended.
38
(q)
(p) ``Individualized education program'' or
``IEP'' means a written
39 statement for each exceptional child
that is developed, reviewed, and re-
40 vised in accordance with the provisions
of section 12, and amendments
41 thereto.
42
(r) (q) ``Related
services'' means transportation, and such develop-
43 mental, corrective, and other supportive
services, including speech-lan-
SB 591--Am.
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1 guage pathology and audiology
services, psychological services, physical
2 and occupational therapy,
recreation, including therapeutic recreation,
3 social work services, counseling
services, including rehabilitation coun-
4 seling, orientation and mobility
services, and medical services, except that
5 such medical services shall be for
diagnostic and evaluation purposes only,
6 as may be required to assist an
exceptional child to benefit from special
7 education, and includes the early
identification and assessment of disa-
8 bling conditions in
children.
9
(s)
(r) ``Supplementary aids and services'' means
aids, services, and
10 other supports that are provided in
regular education classes or other
11 educational-related
education-related settings to enable children
with
12 disabilities to be educated with
nondisabled children to the maximum
13 extent appropriate.
14
(t)
(s) ``Individualized education program team''
or ``IEP team''
15 means a group of individuals composed
of:
16 (1) The parents of a
child:
17 (2) at least one
regular education teacher of the child, if the child is,
18 or may be, participating in the regular
education environment;
19 (3) at least one
special education teacher or, where appropriate, at
20 least one special education provider of
the child;
21 (4) a representative
of the local educational agency who: (A) Is qual-
22 ified to provide, or supervise the
provision of, specially designed instruc-
23 tion to meet the unique needs of
exceptional children; (B) is knowledgeable
24 about the general curriculum; and (C) is
knowledgeable about the avail-
25 ability of resources of the local
educational agency;
26 (5) an individual who
can interpret the instructional implications of
27 evaluation results;
28 (6) at the discretion
of the parent or the agency, other individuals
29 who have knowledge or special expertise
regarding the child, including
30 related services personnel as
appropriate; and
31 (7) whenever
appropriate, the child.
32
(u)
(t) ``Evaluation'' means a multisourced and
multidisciplinary ex-
33 amination, conducted in accordance with
the provisions of section 11, and
34 amendments thereto, to determine whether
a child is an exceptional child.
35
(v) (u) ``Independent
educational evaluation'' means an examination
36 which is obtained by the parent of an
exceptional child and performed by
37 an individual or group of individuals
who meet state and local standards
38 to conduct such an examination.
39
(w) (v) ``Elementary
school'' means any nonprofit institutional day
40 or residential school that offers
instruction in any or all of the grades
41 kindergarten through nine.
42
(x) (w) ``Secondary
school'' means any nonprofit
instructional insti-
43 tutional day or
residential school that offers instruction in any or all of
SB 591--Am.
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1 the grades nine through
12.
2 (x) ``Children with
disabilities'' means children with mental re-
3 tardation, hearing impairments
including deafness, speech or lan-
4 guage impairments, visual
impairments including blindness, serious
5 emotional disturbance,
orthopedic impairments, autism, traumatic
6 brain injury, other health
impairments, or specific learning disa-
7 bilities and who, by reason
thereof, need special education and re-
8 lated services.
9
Sec. 3. K.S.A. 72-963 is hereby amended to read as
follows: 72-963.
10 (a) The state board shall
adopt, from time to time amend, and administer
11 the state plan. The state board may
amend the state plan, as necessary.
12 The state plan, and any amendments
thereto, shall be prepared in con-
13 sultation with the state advisory council
for special education provided
14 for in this act. The state plan
shall include a statement of the objectives
15 of state supervision of special
education services in school districts and
16 state institutions.
17 (b) The state
board may adopt rules and regulations for the admin-
18 istration of the special education
for exceptional children this act and shall
19 adopt rules and regulations necessary to
comply with the federal law and
20 to implement and give effect
to the state plan. Rules and regulations
21 adopted by the state board to
implement and give effect to the state plan
22 shall include the
following:
23 (a) Provisions
for the establishment, maintenance and supervision of
24 special education services in
school districts and state institutions.
25 (b) Prescribed
courses of study and curricula necessary to meet
26 requirements for approval of
special education services.
27 (c) Criteria for
screening, diagnosis and certification of exceptional
28 children including physical,
educational and psychological examinations.
29 No child from a home in which
English is not the principal language may
30 be assigned to special education
services for exceptional children until
31 such time that the child has been
given, in the principal language used
32 in the home of the child,
examinations reasonably related to the child's
33 cultural environment.
34 (d) Definitions
of the various categories of exceptionality.
35
(e) Implementation dates of special education services for the
various
36 categories of
exceptionality.
37 (f) Standards
for special education services to be received by each
of
38 the several categories of
exceptional children.
39 Rules and regulations
adopted by the state board to implement and
40 give effect to the state plan shall
be incorporated by reference in the state
41 plan the provisions of
this act.
42 Sec. 4. K.S.A.
72-963a is hereby amended to read as follows: 72-
43 963a. Within 30 days after the
effective date of this act, The state board
SB 591--Am.
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1 shall:
2 (a) Establish
procedures, which shall be utilized by each agency, to
3 allow parties to disputes
involving any matter described in subsection
4 (b)(4) of section 17, and
amendments thereto, or in section 31, and amend-
5 ments thereto, to resolve such
disputes through a mediation process or
6 through due process hearings which
meet the requirements of the federal
7 law and this act.
8 (a)
(b) Establish, in consultation with the state advisory
council for
9 special education, standards and
requirements for qualification of persons
10 as hearing officers and mediators.
Such standards and requirements shall
11 include, but not be limited to, standards
and requirements relating to the
12 education and training necessary to assure
the competent performance
13 of functions and procedures which hearing
officers and mediators are
14 authorized to perform.
15 (b)
(c) Establish standards and criteria for conducting and
approving
16 training programs for hearing officers
and mediators.
17 (c)
(d) Compile and maintain a list of qualified hearing
officers and
18 mediators.
19 Sec. 5. K.S.A.
72-963c is hereby amended to read as follows: 72-
20 963c. (a) The state board, in consultation
with the state advisory council
21 for special education, shall:
22 (1) Prescribe guidelines
for the selection of persons for appointment
23 as education advocates and for the exercise
of their authorized powers,
24 duties and functions;
25 (2) establish standards
and criteria for qualification of persons for
26 appointment as education advocates; and
27 (3) provide for special
training programs with respect to the powers,
28 duties and functions of lawful
custodians parents.
29 (b) Lawful
custodians Parents who are education advocates
shall, and
30 all other lawful
custodians parents may, participate in the special
training
31 programs provided for under provision (3)
of subsection (a).
32 (c) The state
board shall adopt rules and regulations for
effectuation
33 of the provisions of this section
and shall make such rules and regulations
34 a part of the state
plan.
35 Sec. 6. K.S.A.
72-964 is hereby amended to read as follows: 72-964.
36 (a) The There is
established a state advisory council for special education
37 shall consist of nine
members. Members of the advisory council shall be
38 appointed by the state board of education,
and every such appointment
39 shall be for a fixed term of not to exceed
three years. Whenever a vacancy
40 occurs in the membership of the advisory
council for any reason other
41 than the expiration of the term of a
member, the state board shall appoint
42 a successor for the remainder of the
unexpired term. Members appointed
43
(b) (1) Advisory The
advisory council established under this section
SB 591--Am.
7
1 shall be representative of the
state population and be comprised of per-
2 sons and community
organizations interested in exceptional children, pro-
3 fessions related to the
educational needs of exceptional children, local
4 school districts and boards
of education thereof, state institutions of
5 higher education and state
institutions. involved in, or concerned with,
6 the education of exceptional
children, including: (A) Parents of exceptional
7 children; (B) individuals with
disabilities; (C) teachers; (D) representa-
8 tives of institutions of higher
education that prepare special education
9 and related services personnel;
(E) state and local education officials; (F)
10 administrators of programs for
exceptional children; (G) representatives
11 of other state agencies involved in the
financing or delivery of related
12 services to exceptional children; (H)
representatives of private schools and
13 public charter schools; (I) at least one
representative of a vocational, com-
14 munity, or business organization
concerned with the provision of transi-
15 tion services to children with
disabilities; and (J) representatives from the
16 state juvenile and adult corrections
agencies.
17 (2) A majority of the
members of the advisory council shall be indi-
18 viduals with disabilities or parents of
children with disabilities.
19 (b)
(c) The state advisory council for special education
shall:
20 (1) Advise and
consult with the state board in the preparation
and
21 administration of the state plan
and in the formulation and review of rules
22 and regulations adopted pursuant to
this act; (2) consider any problems
23 presented to it by the state board,
and give advice thereon; and (3) make
24 recommendations to the state board
concerning special education serv-
25 ices. In addition, the advisory
council shall have and perform such powers,
26 functions and duties as are
specified by law. of unmet needs within the
27 state in the education of exceptional
children;
28 (2) comment publicly
on any rules and regulations proposed by the
29 state board regarding the education of
exceptional children;
30 (3) advise the state
board in developing evaluations and reporting on
31 data to the federal government;
32 (4) advise the state
board in developing corrective action plans to
33 address findings identified in federal
monitoring reports; and
34 (5) advise the state
board in developing and implementing policies
35 relating to the coordination of services
for exceptional children.
36 (c)
(d) Members of the state advisory council for special
education
37 attending meetings of such council, or
attending a subcommittee meeting
38 thereof authorized by the state board,
shall be paid subsistence allow-
39 ances, mileage and other expenses as
provided in K.S.A. 75-3223, and
40 amendments thereto.
41 (d)
(e) The state board shall call the members of the
advisory council
42 to meet at Topeka at least
once each year, at which meeting the council
43 shall organize by electing a chairperson
and a vice-chairperson. The per-
SB 591--Am.
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1 son in the department specified
under direction of the state board to be
2 the principal administrator of
special education and related services shall
3 be the secretary of the advisory
council. The council shall meet upon the
4 call of the chairperson or upon the
call of the state board as often as may
5 be necessary at times and places
designated by the chairperson or by the
6 state board in order to fulfill the
duties prescribed under the provisions
7 of the special education for
exceptional children this act.
8
Sec. 7. K.S.A. 72-965 is hereby amended to read as
follows: 72-965.
9 (a) The state board shall be
responsible for the distribution and allocation
10 of state and federal funds for special
education in accordance with ap-
11 propriation acts and the statutes
of this state. Such moneys shall be ex-
12 pended only in accordance with and for the
purposes specified in federal
13 or state law. Payments under this act may
be made in installments and in
14 advance or by way of reimbursement, with
necessary adjustments on ac-
15 count of for
overpayments or underpayments. Federal funds for special
16 education shall be deposited in the state
treasury.
17 (b) The state board is
hereby authorized to accept from an individual
18 or individuals, the United States
government or any of its agencies or any
19 other public or private body, grants or
contributions of money, funds or
20 property which the state board may
authorize to be used in accordance
21 with appropriation acts, for or in aid of
special education or related serv-
22 ices or any of the purposes authorized by
federal law or this act or the
23 state plan.
24 Sec. 8. K.S.A.
72-966 is hereby amended to read as follows: 72-966.
25 (a) (1) The
Each board of education of every school
district shall provide
26 special education services for all
exceptional children who are residents
27 of the school district.
adopt and implement procedures to assure that all
28 exceptional children residing in the
school district, including children en-
29 rolled in private schools, who are in
need of special eduction and related
30 services, are identified, located and
evaluated.
31 (2) Each board shall
provide an a free
appropriate public education
32 for exceptional children enrolled
full time in the school district,
including
33 and for children with
disabilities who are placed in a private school or
34 facility by the school district as the
means of carrying out the board's
35 obligation to provide
an a free appropriate
public education under this
36 act and for
children with disabilities who have been suspended for
an
37 extended term or expelled from
school.
38 (3) Consistent with
the number of exceptional children who are en-
39 rolled by their parents in private
schools located in the school district,
40 each board shall make provision for the
participation of such children in
41 special education and related services
provided by the school district in
42 accordance with the following
requirements: (A) Amounts expended for
43 the provision of services to such
children shall include an amount equal
SB 591--Am.
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1 to a proportionate amount of
federal funds provided to the school district
2 for the provision of special
education and related services; and (B) such
3 services may be provided to
exceptional children on the premises of pri-
4 vate schools to the extent
consistent with law.
5
(4) (A) Subject to provision (3), a board shall not be
required to pay
6 the costs of education, including
special education and related services,
7 of an exceptional child at a
private school if the school district made
an
8 a free appropriate
public education available to the child and the parents
9 elected to place the child in the
private school.
10 (B) If the parents of
an exceptional child, who previously received
11 special education and related services
from a school district, enroll the
12 child in a private school without the
consent of, or referral by, the school
13 district, a hearing officer or court may
require the school district to re-
14 imburse the parents for the cost of that
enrollment if the hearing officer
15 or court finds that the school district
had not made an a free
appropriate
16 public education available to the child
in a timely manner prior to the
17 enrollment. The amount of reimbursement
may be reduced or denied if:
18 (i) At the most recent IEP meeting
attended by the parents prior to re-
19 moval of the child from the school
district, the parents did not inform the
20 IEP team that they were rejecting the
proposed placement, including stat-
21 ing their concerns and their intent to
enroll their child in a private school
22 at public expense; (ii) the parents, at
least 10 business days, including any
23 holidays that occur on a business day,
prior to the removal of the child
24 from the school district, did not give
written notice to the school district
25 of the information described in clause
(i); or (iii) there is a judicial finding
26 of unreasonableness with respect to
actions taken by the parents.
27 (C) Notwithstanding
the notice requirements in subpart (B)(i) and
28 (ii), the amount of reimbursement may
not be reduced or denied for failure
29 to provide such notice if: (i) The
parent is illiterate and cannot write in
30 English; (ii) compliance with such
notice requirement would likely result
31 in physical or serious emotional harm to
the child; or (iii) the parent had
32 not received notice from the school
district of the parent's obligation to
33 provide the notice described in subpart
(B)(i).
34
(b) When If an exceptional child,
upon referral by a person licensed
35 to practice medicine and surgery, is
admitted to a hospital, treatment
36 center, or other health care institution,
or to a group boarding home or
37 other care facility, and the institution or
facility is located outside the
38 school district in which the child resides,
the district in which the insti-
39 tution or facility is located must
contract with the district in which a parent
40 or person acting as parent of the
child resides, to shall provide special
41 education or related services, if such
services are necessary for the child.
42 Special education and related
services required by this subsection shall
43 may be provided pursuant to
and in accordance with a contract
which
SB 591--Am.
10
1 shall be entered
into between the board of education of the school
district
2 of which the child is a resident and
the board of education of the school
3 district in which the child is
living housed. Each
Any such contract shall
4 be subject to the provisions of
subsection subsections (a)(3) and
subsec-
5 tion (c) of K.S.A.
72-967, and amendments thereto. If a contract is not
6 entered into between the school
districts, the child shall be deemed to be
7 a pupil of the school district
which is providing special education and
8 related services to the child.
Nothing in this subsection shall be construed
9 to limit or supersede or in any
manner affect or diminish the requirements
10 of compliance by each school district with
the provisions of subsection
11 (a), but shall operate as a comity of
school districts in assuring the pro-
12 vision of special education services for
each exceptional child in the state.
13
(c) (1) Special education and related
services required by this section
14 shall meet standards and criteria set by
the state board.
15 (2) The
manner and time for implementation in school districts
of
16 special education services designed
for each of the various categories of
17 exceptionality shall be designated
by the state board in accordance with
18 the state plan. shall
be responsible for assuring that the requirements of
19 the federal law and this act are met and
that all educational programs for
20 exceptional children, including programs
administered by any other state
21 agency: (A) Are under the general
supervision of individuals who are
22 responsible for educational programs for
exceptional children; and (B)
23 meet the educational standards
prescribed by the state board.
24 (3) Provision (2) of
this subsection shall not limit the responsibility of
25 any other state agency to provide, or
pay for some or all of the costs of,
26 an a
free appropriate public education for an exceptional
child.
27 (d) Consistent with
state and federal law, state agencies shall enter
28 into such interagency agreements as are
necessary or advisable in making
29 an a
free appropriate public education available to all
exceptional chil-
30 dren residing in the state.
The state board shall establish procedures
31 for resolving interagency disputes,
including procedures under
32 which local educational agencies may
initiate proceedings to secure
33 reimbursement or otherwise implement
or seek enforcement of the
34 provisions of the interagency
agreement.
35 New Sec. 9. The
state board shall:
36 (1) Establish goals for
the performance of children with disabilities
37 in the state that: (A) Will promote the
purposes of this act; and (B) are
38 consistent, to the maximum extent
appropriate, with other goals and stan-
39 dards for children established by the state
board;
40 (2) establish
performance indicators the state will use to assess pro-
41 gress toward achieving those goals that, at
a minimum, address the per-
42 formance of children with disabilities on
assessments, drop-out rates, and
43 graduation rates;
SB 591--Am.
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1 (3) every two
years, report to the secretary of the U.S. department
2 of education, and to the public, the
progress of the state, and of children
3 with disabilities in the state,
toward meeting the goals established under
4 this section; and
5 (4) based on its
assessment of that progress, revise its state improve-
6 ment plan under subpart 1 or part D
of the federal law as may be needed
7 to improve its performance, if the
state receives assistance under that
8 subpart.
9 New
Sec. 10. (a) The state board and each board shall
include, to
10 the extent required by the federal law and
this act, exceptional children
11 in general state and district-wide
assessment programs, with appropriate
12 accommodations where necessary. As
appropriate, the state board and
13 each board shall:
14 (1) Develop guidelines
for the participation of children with disabil-
15 ities in alternate assessments for those
children who cannot participate in
16 state and district-wide assessment
programs; and
17 (2) develop and,
beginning not later than July 1, 2000, conduct those
18 alternate assessments.
19 (b) The state board
shall make available to the public, and report to
20 the public with the same frequency and in
the same detail as it reports
21 on the assessment of nondisabled children,
the following:
22 (1) The number of
children with disabilities participating in regular
23 assessments;
24 (2) the number of those
children participating in alternate assess-
25 ments; and
26 (3) the performance of
those children on regular assessments begin-
27 ning not later than July of 1998, and on
alternate assessments not later
28 than July 1, 2000, if doing so would be
statistically sound and would not
29 result in the disclosure of performance
results identifiable of individual
30 children.
31 (c) Data
relating to the performance of children with disabilities
shall
32 be disaggregated:
33 (1) For
assessments conducted after July 1, 1998; and
34 (2) for
assessments conducted before July 1, 1998, if the state is
re-
35 quired to disaggregate such
data.
36 (c) Data relating to the
performance of children with disabili-
37 ties shall be disaggregated for
assessments conducted after the ef-
38 fective date of this act.
39 New Sec. 11. (a)(1)
An agency shall conduct a full and individual
40 initial evaluation in accordance with this
section before the initial provi-
41 sion of special education and related
services to an exceptional child. Such
42 initial evaluation shall consist of
procedures to determine whether a child
43 is an exceptional child and the educational
needs of such child.
SB 591--Am.
12
1 (2) An agency
proposing to conduct an initial evaluation of a child
2 shall obtain informed consent from
the parent of such child before the
3 evaluation is conducted. Parental
consent for evaluation shall not be con-
4 strued as consent for placement for
receipt of special education and re-
5 lated services.
6 (3) If the parents
of a child refuse consent for evaluation of the child,
7 the agency may, but shall not
be required to, continue to pursue an
8 evaluation by utilizing the mediation
or due process procedures pre-
9 scribed in this act.
10 (b) Each agency shall
ensure that a reevaluation of each exceptional
11 child is conducted:
12 (1) If conditions
warrant a reevaluation or if the child's parent or
13 teacher requests a reevaluation, but at
least once every 3 years; and
14 (2) in accordance with
subsections (c), (d) and (e).
15 (c) An agency shall
provide notice to the parents of a child that de-
16 scribes any evaluation procedures such
agency proposes to conduct. In
17 conducting the evaluation, the agency
shall:
18 (1) Use a variety of
assessment tools and strategies to gather relevant
19 functional and developmental information,
including information pro-
20 vided by the parent, that may assist in
determining whether the child is
21 an exceptional child and the content of the
child's individualized educa-
22 tion program, including information related
to enabling the child to be
23 involved, and progress, in the general
curriculum or, for preschool chil-
24 dren, to participate in appropriate
activities;
25 (2) not use any single
procedure as the sole criterion for determining
26 whether a child is an exceptional child or
determining an appropriate
27 educational program for the child; and
28 (3) use technically
sound instruments that may assess the relative con-
29 tribution of cognitive and behavioral
factors, in addition to physical or
30 developmental factors.
31 (d) An agency shall
ensure that:
32 (1) Tests and other
evaluation materials used to assess a child under
33 this section: (A) Are selected and
administered so as not to be discrimi-
34 natory on a racial or cultural basis; and
(B) are provided and administered
35 in the child's native language or other
mode of communication, unless it
36 is clearly not feasible to do so; and
37 (2) any
standardize standardized tests that
are given to the child:
38 (A) Have been validated for the specific
purpose for which they are used;
39 (B) are administered by trained and
knowledgeable personnel; and (C)
40 are administered in accordance with any
instructions provided by the
41 producer of such tests;
42 (3) the child is
assessed in all areas of suspected disability; and
43 (4) assessment tools and
strategies that provide relevant information
SB 591--Am.
13
1 that directly assists persons in
determining the educational needs of the
2 child are provided.
3 (e) Upon
completion of administration of tests and other evaluation
4 materials:
5 (1) The
determination of whether the child is an exceptional child
6 shall be made by a team of qualified
professionals and the parent of the
7 child in accordance with this
section; and
8 (2) a copy of the
evaluation report and the documentation of deter-
9 mination of eligibility shall be
given to the parent.
10 (f) In making a
determination of eligibility under this section, a child
11 shall not be determined to be an
exceptional child if the determinant
12 factor for such determination is lack of
instruction in reading or math or
13 limited English proficiency.
14 (g) As part of an
initial evaluation, if appropriate, and as part of any
15 reevaluation under this section, the IEP
team and other qualified pro-
16 fessionals, as appropriate, shall:
17 (1) Review existing
evaluation data on the child, including evaluations
18 and information provided by the parents of
the child, current class-
19 room-based assessments and observations,
and teacher and related serv-
20 ices providers observation; and
21 (2) on the basis of that
review, and input from the child's parents,
22 identify what additional data, if any, are
needed to determine: (A)
23 Whether the child has a particular category
of disability, or in the case of
24 a reevaluation of a child, whether the
child continues to have such a
25 disability; (B) the present levels of
performance and educational needs of
26 the child; (C) whether the child needs
special education and related serv-
27 ices; or in the case of a reevaluation of a
child, whether the child continues
28 to need special education and related
services; and (D) whether any ad-
29 ditions or modifications to the special
education and related services are
30 needed to enable the child to meet the
measurable annual goals set out
31 in the IEP of the child and to participate,
as appropriate, in the general
32 curriculum.
33 (h) Each agency shall
obtain informed parental consent prior to con-
34 ducting any reevaluation of an exceptional
child, except that such in-
35 formed consent need not be obtained if the
agency can demonstrate that
36 it took reasonable measures to obtain such
consent and the child's parent
37 failed to respond.
38 (i) If the IEP team and
other qualified professionals, as appropriate,
39 determine that no additional data are
needed to determine whether the
40 child continues to be an exceptional child,
the agency:
41 (1) Shall notify the
child's parents of: (A) That determination and the
42 reasons for it; and (B) the rights of such
parents to request an assessment
43 to determine whether the child continues to
be a child with a disability;
SB 591--Am.
14
1 and
2 (2) shall not be
required to conduct such an assessment unless re-
3 quested by the child's parents.
4 (j) An agency
shall evaluate a child in accordance with this section
5 before determining that the child is
no longer an exceptional child.
6 New
Sec. 12. (a)(1) Except as provided in provision (2), at
the be-
7 ginning of each school year, each
agency shall have an individualized
8 education program in effect for each
exceptional child.
9 (2) In the case of
a child with a disability aged three through five and
10 for two year-old children with a disability
who will turn age three during
11 the school year, an individualized family
service plan that contains the
12 material described in 20 USC
636 1436, and that is developed in
ac-
13 cordance with this section, may serve as
the IEP of the child if using that
14 plan as the IEP is agreed to by the agency
and the child's parents.
15 (b) The IEP for each
exceptional child shall include:
16 (1) A statement of
the child's present levels of educational per-
17 formance, including: (A) How the
child's disability or giftedness
18 affects the child's involvement and
progress in the general curric-
19 ulum; or (B) for preschool children,
as appropriate, how the disa-
20 bility affects the child's
participation in appropriate activities;
21 (2) a statement of
measurable annual goals, including bench-
22 marks or short-term objectives,
related to: (A) Meeting the child's
23 needs that result from the child's
disability of giftedness to enable
24 the child to be involved in and
progress in the general or advanced
25 curriculum; and (B) meeting each of
the child's other educational
26 needs that result from the child's
disability or giftedness;
27 (3) a statement of
the special education and related services and
28 supplementary aids and services to be
provided to the child, or on
29 behalf of the child, and a statement
of the program modifications
30 or supports for school personnel that
will be provided for the child:
31 (A) To advance appropriately toward
attaining the annual goals;
32 (B) to be involved and progress in
the general curriculum in ac-
33 cordance with provision (1) and to
participate in extracurricular
34 and other nonacademic activities; and
(C) to be educated and par-
35 ticipate with other children with
disabilities and nondisabled chil-
36 dren in the activities described in
this paragraph;
37 (4) an explanation
of the extent, if any, to which the child will
38 not participate with nondisabled
children in the regular class and
39 in the activities described in
provision (3);
40 (5) (A) a
statement of any individual modifications in the ad-
41 ministration of state or districtwide
assessments of student achieve-
42 ment that are needed in order for the
child to participate in such
43 assessment; and (B) if the IEP team
determines that the child will
SB 591--Am.
15
1 not participate in a particular
state or districtwide assessment of
2 student achievement or part of
such an assessment, a statement of
3 why that assessment is not
appropriate for the child and how the
4 child will be
assessed;
5 (6) the
projected date for the beginning of the services and
mod-
6 ifications described in
provision (3), and the anticipated frequency,
7 location, and duration of those
services and modifications;
8
(7) (A) beginning at age 14, and updated annually, a
statement
9 of the transition service needs
of the child under the applicable
10 components of the child's IEP that
focuses on the child's course of
11 study, such as participation in
advanced-placement courses or a
12 vocational education program; (B)
beginning at age 16 or younger,
13 if determined appropriate by the IEP
team, a statement of needed
14 transition services for the child,
including, when appropriate, a
15 statement of the interagency
responsibilities or any needed link-
16 ages; and (C) beginning at least one
year before the child reaches
17 the age of majority under state law,
a statement that the child has
18 been informed of the child's rights
under this title, if any, that will
19 transfer to the child on reaching the
age of majority under section
20 18 of this act;
21 (8) a statement
of: (A) How the child's progress toward the an-
22 nual goals will be measured; and (B)
how the child's parents will
23 be regularly informed, by such means
as periodic report cards, at
24 least as often as parents of
nondisabled children are informed of
25 their children's progress, of their
child's progress toward the annual
26 goals; and the extent to which that
progress is sufficient to enable
27 the child to achieve the goals by the
end of the year.
28 (b)
(c) In developing each child's IEP, the IEP team
shall consider:
29 (1) The strengths of the
child and the concerns of the parents for
30 enhancing the education of their child;
31 (2) the results of the
initial evaluation or most recent evaluation of
32 the child;
33 (3) in the case of a
child whose behavior impedes the child's learning
34 or that of others, strategies, including
positive behavioral interventions
35 and supports to address that behavior;
36 (4) in the case of a
child with limited English proficiency, the lan-
37 guage needs of the child as such needs
relate to the child's IEP;
38 (5) in the case of a
child who is blind or visually impaired, provide
39 for instruction in Braille and the use of
Braille unless the IEP team de-
40 termines, after an evaluation of the
child's reading and writing skills,
41 needs, and appropriate reading and writing
media, including an evalua-
42 tion of the child's future needs for
instruction in Braille or the use of
43 Braille, that instruction in Braille or the
use of Braille is not appropriate
SB 591--Am.
16
1 for the child;
2 (6) the
communication needs of the child, and in the case of a child
3 who is deaf or hard of hearing,
consider the child's language and com-
4 munication needs, opportunities for
direct communications with peers
5 and professional personnel in the
child's language and communication
6 mode, academic level, and full range
of needs, including opportunities
7 for direct instruction in the child's
language and communication mode;
8 and
9 (7) whether the
child requires assistive technology devices and serv-
10 ices.
11 (c)
(d) The regular education teacher of the child,
as a member of
12 the IEP team, to the extent appropriate,
shall participate in:
13 (1) The development of
the IEP of the child, including the deter-
14 mination of appropriate positive behavioral
interventions and strategies
15 and the determination of supplementary aids
and services, program mod-
16 ifications, and support for school
personnel consistent with this section;
17 and
18 (2) the review and
revision of the child's IEP under subsection (d).
19 (d)
(e) Each agency shall ensure that the IEP
team:
20 (1) Reviews the child's
IEP periodically, but not less than annually to
21 determine whether the annual goals for the
child are being achieved; and
22 (2) revises the IEP as
appropriate to address: (A) Any lack of expected
23 progress toward the annual goals and in the
general curriculum, where
24 appropriate; (B) the results of any
reevaluation conducted under this sec-
25 tion; (C) information about the child
provided to, or by, the parents, as
26 described in subsection (g) of section 11,
and amendments thereto; (D)
27 the child's anticipated needs; or (E) other
matters.
28 Sec. 13. K.S.A.
72-967 is hereby amended to read as follows: 72-967.
29 (a) Each board, in order to comply with the
requirements of K.S.A. 72-
30 933 and 72-966 this
act shall have the authority to:
31 (1) Establish
and organize approvable Provide appropriate
special
32 education and related services for
exceptional children within its schools.
33 (2) Provide for
approvable appropriate special education and
related
34 services in the home, in a hospital
or in other facility facilities.
35 (3) Contract with
any another school district for special
education and
36 related services. Before
entering into any such contract, the special ed-
37 ucation services to be provided by
such school district, and the contract
38 therefor, shall be approved by the
commissioner of education upon au-
39 thorization by the state board,
which approval shall be granted if the
40 special education services provided
for in such contract meet standards
41 and criteria set by the state board
in accordance with the state plan. Any
42 such contract may provide for the payment
of tuition and other costs by
43 the contracting school
district in which the child is enrolled.
SB 591--Am.
17
1 (4) Enter into
cooperative agreements with one or more other school
2 districts for special education
and related services, if such agreements
are
3 approved as provided by this
act.
4 (5) Contract with
any accredited private nonprofit corporation or
any
5 public or private institution within
or without outside the state which has
6 proper special education or
related services for exceptional children.
Prior
7 to the time any school
district enters into a contract with any private
8 nonprofit corporation or any
public or private institution for the education
9 of any exceptional child the
curriculum provided by such corporation or
10 institution and the contract shall
be approved by the commissioner of
11 education upon authorization by the
state board. Whenever an excep-
12 tional child is educated by a private
nonprofit corporation or a public or
13 private institution under the provisions of
this paragraph, such child shall
14 be considered a pupil of the school
district contracting for such education
15 hereunder to the same
extent as other pupils of such school district for
16 the purpose of determining entitlements and
participation in all state,
17 county federal and
other financial assistance or payments to such school
18 district.
19 (6) Provide
transportation for exceptional children, whether such
20 children are residents or nonresidents of
such school district, to and from
21 for the provision of special
education or related services attended. In
lieu
22 of paying for transportation, the board of
the school district in which an
23 exceptional child resides may pay all or
part of the cost of room and board
24 for such exceptional child at the place
where the special education or
25 related services attended are
located provided.
26 (b) Special education
and related services which are provided
by
27 school districts for
exceptional children shall meet standards and criteria
28 set by the state board in
accordance with the state plan and shall be
29 subject to approval by the state board.
30 (c) Any contract entered
into by a board under the provisions of this
31 section shall be subject to change or
termination by the legislature.
32 Sec. 14. K.S.A.
1997 Supp. 72-968 is hereby amended to read as
33 follows: 72-968. (a) The boards of any two
or more school districts within
34 or outside the state may make and enter
into agreements providing for
35 cooperative operation and administration in
providing special education
36 and related services for exceptional
children on a shared-cost basis, sub-
37 ject to the following:
38 (1) An agreement shall
be effective only after approval by the state
39 board, which approval shall be granted if
the special education services
40 provided for in such agreement meet
standards and criteria set by the
41 state board in accordance with the
state plan.
42 (2) (A) The
duration of an agreement shall be perpetual but the
43 agreement may be partially or completely
terminated as hereinafter pro-
SB 591--Am.
18
1 vided.
2 (B) Partial
termination of an agreement made and entered into by
3 the boards of three or more school
districts may be accomplished only
4 upon petition for withdrawal from the
agreement made by a contracting
5 school district to the other
contracting school districts and approval by
6 the state board of written consent to
the petition by such other school
7 districts or upon order of the state
board after appeal to it by a school
8 district from denial of consent to a
petition for withdrawal and hearing
9 thereon conducted by the state board.
The state board shall consider all
10 the testimony and evidence brought forth at
the hearing and issue an
11 order approving or disapproving withdrawal
by the school district from
12 the agreement.
13 (C) Complete termination
of an agreement made and entered into
14 by the boards of two school districts may
be accomplished upon approval
15 by the state board of a joint petition made
to the state board for termi-
16 nation of the agreement by both of the
contracting school districts after
17 adoption of a resolution to that effect by
each of the contracting school
18 districts or upon petition for withdrawal
from the agreement made by a
19 contracting school district to the other
contracting school district and
20 approval by the state board of written
consent to the petition by such
21 other school district or upon order of the
state board after appeal to it by
22 a school district from denial of consent to
a petition for withdrawal and
23 hearing thereon conducted by the state
board. The state board shall con-
24 sider all the testimony and evidence
brought forth at the hearing and
25 issue an order approving or disapproving
withdrawal by the school district
26 from the agreement.
27 (D) Complete termination
of an agreement made and entered into
28 by the boards of three or more school
districts may be accomplished only
29 upon approval by the state board of a joint
petition made to the state
30 board for termination of the agreement by
not less than 2/3 of the con-
31 tracting school districts after adoption of
a resolution to that effect by
32 each of the contracting school districts
seeking termination of the agree-
33 ment. The state board shall consider the
petition and approve or disap-
34 prove termination of the agreement.
35 (E) The state board
shall take such action in approving or disapprov-
36 ing the complete or partial termination of
an agreement as the state board
37 deems to be in the best interests of the
involved school districts and of
38 the state as a whole in the provision of
special education services for
39 exceptional children. Whenever the state
board has disapproved the com-
40 plete or partial termination of an
agreement, no further action with re-
41 spect to such agreement shall be considered
or taken by the state board
42 for a period of not less than three
years.
43 (3) An agreement shall
designate the sponsoring school district and
SB 591--Am.
19
1 shall provide for a separate fund
thereof, to which each contracting dis-
2 trict shall pay the moneys due from
it under the agreement. Any school
3 district which is a party to an
agreement may be designated the sponsoring
4 district.
5 (4) An agreement
shall specify the method or methods to be em-
6 ployed for disposing of property upon
partial or complete termination.
7 (5) Within the
limitations provided by law, an agreement may be
8 changed or modified by mutual consent
of the contracting school districts.
9 (6) An agreement
shall be subject to change or termination by the
10 legislature.
11 (b) The provisions of
this section apply to every agreement entered
12 into under authority of this section after
the effective date of this act and
13 to every agreement entered into under this
section prior to the effective
14 date of this act, and extant on the
effective date of this act, regardless of
15 any provisions in such agreement to the
contrary.
16 Sec. 15. K.S.A.
72-970 is hereby amended to read as follows: 72-970.
17 (a) Except as otherwise provided in
subsection (b), every state institution
18 shall provide special education and
related services for all exceptional
19 children housed and maintained in the state
institution and said special
20 education such
services shall meet standards and criteria set by the state
21 board in accordance with the state
plan and shall be subject to approval
22 by the state board. State institutions may
contract with local school dis-
23 tricts and other appropriate agencies or
individuals for special education
24 or related services. Prior to the
time any state institution enters into a
25 contract with any school
district for such services the special
education
26 or related services to be
provided by such school district shall be
approved
27 by the state board.
28 (b) In providing
special education or related services to incarcerated
29 children with disabilities, a
correctional institution shall be exempt from
30 the requirements of this act to the
extent authorized by the federal law.
31 Sec. 16. K.S.A.
72-971 is hereby amended to read as follows: 72-971.
32 (a) In order to obtain data
necessary for review of the progress or lack
33 thereof made in special education
services for exceptional children and
34 to assess future needs for
providing special education services on a more
35 comprehensive, expert, economic and
efficient basis, it shall be the duty
36 of the department to conduct an
annual survey of the school districts
37 showing the total number of
exceptional children within the various cat-
38 egories of exceptionality in the
state The state board shall prepare and
39 file such reports as are required by the
federal law or this act.
40 (b) The state
crippled children's commission School districts
and
41 other state agencies
having census data on exceptional children shall
from
42 time to time as requested
furnish such data, as requested, to the
depart-
43 ment state
board.
SB 591--Am.
20
1 New
Sec. 17. (a) The rights of parents of exceptional
children shall
2 include, but not be limited to, the
rights specified in this section.
3 (b) The parents of
exceptional children shall have the right to:
4 (1) Examine all
records relating to such child and to participate in
5 meetings with respect to the
identification, evaluation, and educational
6 placement of the child, and the
provision of an a free appropriate
public
7 education to such child, and to
obtain an independent educational eval-
8 uation of the child;
9 (2) written prior
notice whenever an agency: (A) Proposes to initiate
10 or change; or (B) refuses to initiate or
change, the identification, evalu-
11 ation, or educational placement of the
child, in accordance with subsec-
12 tion (c), or the provision of
an a free appropriate public
education to the
13 child;
14 (3) receive the notice
required by provision (2) in their native lan-
15 guage, unless it clearly is not feasible to
do so;
16 (4) present complaints
with respect to any matter relating to the iden-
17 tification, evaluation, or educational
placement of the child, or the pro-
18 vision of an a
free appropriate public education to the child, subject
to
19 the requirements that the parent, or the
attorney representing the parent
20 or child, provides notice to the agency
that includes: (A) The name of the
21 child, the address of the residence of the
child, and the name of the school
22 the child is attending; (B) a description
of the nature of the problem of
23 the child relating to such proposed
initiation or change, including facts
24 relating to such problem; and (C) a
proposed resolution of the problem
25 to the extent known and available to the
parents at the time;
26 (5) request
medication mediation in accordance
with this act;
27 (6) consent, or refuse
to consent, to the evaluation or,
reevaluation
28 or the initial placement of
their child and to any substantial change
29 in services to, or placement of,
their child;
30 (7) be members of any
group that makes decisions on the educational
31 placement of their child;
32 (8) demand that their
child remain in the child's current educational
33 placement pending the outcome of a due
process hearing, except as oth-
34 erwise provided by federal law and this
act;
35 (9) request a due
process hearing in regard to any complaint filed in
36 accordance with provision (4) of this
subsection, or as authorized in sec-
37 tion 31, and amendments thereto;
38 (10) appeal to the state
board any adverse decision rendered by a
39 hearing officer in a local due process
hearing;
40 (11) appeal to state or
federal court any adverse decision rendered
41 by a review officer in a state-level due
process appeal; and
42 (12) recover attorney
fees, in accordance with the federal law, if they
43 are the prevailing parties in a due process
hearing or court action; how-
SB 591--Am.
21
1 ever, only a court shall have
the authority to award attorney fees,
2 and such fees may be reduced or
denied in accordance with federal
3 law.
4 (c) The state
board shall develop a model form to assist parents in
5 filing a complaint in accordance with
subsection (b)(4).
6 (d) The state
board shall develop, and thereafter amend as necessary,
7 and distribute for use by agencies, a
list of the rights available to the
8 parents of exceptional children under
the federal law and this act. The
9 list shall be made available in
various languages and be written so as to
10 be easily understandable by parents.
11 (e) A list of the rights
available to the parents of exceptional children
12 shall be given to the parents, at a
minimum: (A) Upon initial referral for
13 evaluation and upon reevaluation of the
child; (B) upon each notification
14 of an individualized education program
meeting; and (C) upon registra-
15 tion of a complaint under subsection
(b)(4).
16 New Sec. 18. When a
child with a disability reaches the age of 18,
17 except for a child with a disability who
has been determined to be incom-
18 petent under state law:
19 (a) An agency shall
provide to both the individual and to the individ-
20 ual's parents any notice required by this
act;
21 (b) all other rights
accorded to parents under this act transfer to the
22 individual;
23 (c) the agency shall
notify the individual and the parents of the trans-
24 fer of rights; and
25 (d) all rights accorded
to parents under this act transfer to the indi-
26 vidual if incarcerated in an adult or
juvenile federal, state or local correc-
27 tional institution.
28 New Sec. 19. The
notice required by subsection (b)(2) of section 17,
29 and amendments thereto, shall include:
30 (a) A description of the
action proposed or refused by the agency;
31 (b) an explanation of
why the agency proposes or refuses to take the
32 action;
33 (c) a description of any
other options that the agency considered and
34 the reasons those options were
rejected;
35 (d) a description of
each evaluation procedure, test, record, or report
36 the agency used as a basis for the proposed
or refused action;
37 (e) a description of any
other factors that are relevant to the agency's
38 proposal or refusal;
39 (f) a statement that the
parents have protection under the procedural
40 safeguards of this act and, if the notice
is not an initial referral for eval-
41 uation, the means by which a copy of the
procedural safeguards can be
42 obtained; and
43 (g) sources for parents
to contact to obtain assistance in understand-
SB 591--Am.
22
1 ing the provisions of the federal law
and this act.
2
Sec. 20. K.S.A. 72-973 is hereby amended to read as
follows: 72-973.
3 (a) The Any due
process hearing provided for in K.S.A. 72-972,
and
4 amendments thereto,
under this act shall be held at a time and place
5 reasonably convenient to the
lawful custodian parent of the involved
child,
6 shall be a closed hearing unless the
lawful custodian parent requests an
7 open hearing, and shall be conducted
in accordance with rules and reg-
8 ulations relating thereto adopted by
the agency. Such rules and regula-
9 tions shall afford procedural due
process, including the following:
10 (1) The right of the
parties to have counsel or an advisor of their own
11 choice present and to receive the advice of
such counsel or other advisor
12 whom they may select;
13 (2) the right of the
child and the lawful custodian parent of
the child
14 to be present at the hearing;
15 (3) the right of the
child, the lawful custodian parent
of the child
16 and their counsel or advisor to hear or
read a full report of the testimony
17 of witnesses responsible for recommending
the proposed action and of
18 any other material witnesses;
19 (4) the right of
the parties and their counsel or advisor to confront
20 and cross-examine witnesses who appear in
person at the hearing, either
21 voluntarily or as a result of the issuance
of a subpoena;
22 (5) the right of the
parties to present witnesses in person or their
23 testimony by affidavit, including expert
medical, psychological or educa-
24 tional testimony;
25 (6) the right of the
child and the lawful custodian parent, on
behalf
26 of the child, to testify and give reasons
in opposition to the proposed
27 action;
28 (7) the right of the
parties to prohibit the presentation of any evi-
29 dence at the hearing which has not been
disclosed to the opposite party
30 at least five days prior to the hearing,
including any evaluations completed
31 by that date and any recommendations
based on such evaluations;
32 (8) the right of the
parties to have an orderly hearing;
33 (9) the right of the
child to a fair and impartial decision based on
34 substantial evidence; and
35 (10) the right of the
parties to have a record of the hearing made
by
36 mechanical or electronic recording
or by an official court reporter written
37 or, at the option of the parent, an
electronic, verbatim record of the hear-
38 ing.
39 (b) The
Each due process hearing, other than an expedited
hearing
40 under section 31 or
section 32, and amendments thereto, shall be
held
41 not later than 30 days from the date on
which the request therefor is
42 received or, if no request is
received, not later than 30 days from the date
43 by which the request should have
been made, or on which objection, or
SB 591--Am.
23
1 revocation of consent, to the
proposed action is received by the agency.
2 The child and the lawful
custodian parent of the child shall be notified
3 in writing of the time and place of
the hearing at least five days prior
4 thereto. At any reasonable time prior
to the hearing, the lawful custodian
5 parent and the counsel or
advisor of the involved child shall be given
6 access to all records, tests, reports
or clinical evaluations relating to the
7 proposed action.
8
(c) (1) Except as otherwise provided in section
30 32, and amend-
9 ments thereto, during the pendency
of any proceedings conducted under
10 this act, unless the agency and parent
otherwise agree, the child shall
11 remain in the then-current educational
placement of such child.
12 (2) If proceedings
arise in connection with the initial admission of the
13 child to school, the child shall be
placed in the appropriate regular edu-
14 cation classroom or program in
compliance with K.S.A. 72-1111, and
15 amendments thereto, unless otherwise
directed pursuant to section 30,
16 and amendments thereto.
17 (c)
(d) Subject to the provisions of K.S.A. 72-973a,
and amendments
18 thereto, the agency shall appoint a hearing
officer for the purpose of
19 conducting the hearing. Members of the
state board, the secretary of
20 social and rehabilitation services, the
commissioner of the juvenile justice
21 authority, and members of any board
or agency involved in the education
22 of the child shall not serve as hearing
officers. No hearing officer shall be
23 any person (1) responsible
for recommending the proposed action upon
24 which the hearing is based,
(2) any person having a personal or
profes-
25 sional interest which would conflict with
objectivity in the hearing, or (3)
26 any person who is an employee of the
state board or any agency involved
27 in the education of the child. A person
shall not be considered an em-
28 ployee of the agency solely because the
person is paid by the agency to
29 serve as a hearing officer. Each agency
shall maintain a list of hearing
30 officers. Such list shall include a
statement of the qualifications of each
31 hearing officer. Each hearing officer
and each state review officer shall
32 be qualified in accordance with standards
and requirements established
33 by the state board and shall have
satisfactorily completed a training pro-
34 gram conducted or approved by the state
board. Whenever a hearing
35 officer conducts any hearing, such hearing
officer shall render a decision
36 on the matter not later than 10 days after
the conclusion of the hearing
37 and shall prepare a written report
thereon to the agency providing for
38 the hearing, or at the
option of the parent, an electronic decision, includ-
39 ing findings of fact and
conclusions. Any action of the hearing officer in
40 accordance with this subsection shall be
final, subject to appeal and review
41 in accordance with K.S.A. 72-974,
and amendments thereto this act.
42 Sec. 21. K.S.A.
72-973a is hereby amended to read as follows: 72-
43 973a. Prior to appointing any hearing
officer to conduct a due process
SB 591--Am.
24
1 hearing provided for in
K.S.A. 72-972, and amendments thereto under
2 this act, the agency shall
make its list of hearing officers available to the
3 lawful custodian
parent of the involved child and shall inform the
lawful
4 custodian
parent of the right to request disqualification of any or
all of
5 the hearing officers on the list and
to request the state board to appoint
6 a hearing officer in accordance with
the procedure provided in this sub-
7 section. If the lawful
custodian parent does not request
disqualification
8 of all of the hearing
officers give written notice of disqualification
to
9 the agency within five days
after the list is received by the parent,
10 the agency may appoint from its list any
hearing officer whom the lawful
11 custodian parent
has not requested to be disqualified. If the lawful
cus-
12 todian parent
requests disqualification of all of the hearing officers and
13 requests the appointment of a hearing
officer by the state board, the
14 agency shall immediately notify the state
board and shall request the state
15 board to provide a list of the
names and qualifications of five prospective
16 hearing officers. The agency and
the lawful custodian
parent of the in-
17 volved child may each remove two
names from the list. The agency
may
18 remove any name or names it
wishes to remove and then allow the parent
19 the opportunity to remove names
from the list. The agency shall
inform
20 the state board of the name or
names remaining on the list and the state
21 board shall appoint a hearing
officer therefrom appoint a hearing
offi-
22 cer.
23 Sec. 22. K.S.A.
1997 Supp. 72-974 is hereby amended to read as
24 follows: 72-974. (a) Written notice of the
result of any hearing provided
25 for under K.S.A. 72-972, and
amendments thereto, this act shall be given
26 to the agency providing for the hearing and
shall be sent by restricted
27 certified mail to the affected child
or the lawful custodian parent, counsel
28 or advisor of the child within 24 hours
after the result is determined. Such
29 decision, after deletion of any personally
identifiable information con-
30 tained therein, shall also
be transmitted to the state board which shall
31 make the decision available to the
state advisory council for special edu-
32 cation and to the public upon
request.
33 (b) (1) Any party
to a due process hearing provided for under
K.S.A.
34 72-972, and amendments
thereto, this act may appeal the decision to
the
35 state board by filing a written notice of
appeal with the commissioner of
36 education not later than 30 calendar days
after receiving the date of the
37 postmark on the written notice
specified in subsection (a). Any such hear-
38 ing and decision therein shall be
reviewed by a reviewing A review officer
39 appointed by the state
board, shall conduct an impartial review of
such
40 decision. Except in the
case of a review of an expedited hearing under
41 sections 31 or 32, and
amendments thereto, the The review
officer shall
42 render a decision not later than 20
calendar days after the notice of appeal
43 is filed. The reviewing
review officer shall: (A) Examine the record of the
SB 591--Am.
25
1 hearing; (B) determine whether the
procedures at the hearing were in
2 accordance with the requirements of
due process; (C) afford the parties
3 an opportunity for oral or written
argument, or both, at the discretion of
4 the reviewing
review officer; (D) seek additional evidence if
necessary;
5 (E) render a an
independent decision on any such appeal not later than
6 five days after completion of the
review; and (F) send written notice of
7 the decision on any such appeal to
the parties and to the state board.
8 (2) For the
purpose of reviewing any hearing and decision under
9 provision (1), the state board may
appoint one or more reviewing review
10 officers. Any such appointment may apply to
a review of a particular
11 hearing or to reviewing a set or class of
hearings as specified by the state
12 board in making the appointment.
Whenever a reviewing officer ap-
13 pointed under authority of this
subsection conducts any review, the re-
14 viewing officer shall decide the
matter by affirming, reversing or modi-
15 fying the decision from which the
appeal was taken and shall prepare a
16 written report thereon to the state
board.
17 (c) Any action of a
reviewing review officer pursuant to this
section
18 is subject to review in accordance with the
act for judicial review and civil
19 enforcement of agency actions or to an
action in federal court as allowed
20 by the federal law.
21 (d) Any action in federal
court shall be filed within 30 days after
22 service of the reviewing officer's
decision.
23 Sec. 23. K.S.A.
72-975 is hereby amended to read as follows: 72-975.
24 (a) Any person conducting a hearing or
review under article 9 of chapter
25 72 of Kansas Statutes
Annotated this act may administer oaths for the
26 purpose of taking testimony therein.
27 (b) Any person
conducting a hearing or review under article 9
of
28 chapter 72 of Kansas Statutes
Annotated this act or any party to any such
29 hearing or review may request the clerk of
the district court to issue
30 subpoenas for the attendance and testimony
of witnesses and the pro-
31 duction of all relevant records, tests,
reports and evaluations in the same
32 manner provided for the issuance of
subpoenas in civil actions pursuant
33 to K.S.A. 60-245, and amendments
thereto.
34 (c) Any person
conducting a hearing or review under article 9
of
35 chapter 72 of Kansas Statutes
Annotated this act, at the request of either
36 party, may grant specific extensions of
time beyond the limitations spec-
37 ified in K.S.A. 72-973 and 72-974,
and amendments thereto this act.
38 (d) Any person conducting
a hearing under this act shall con-
39 sider any request for discovery in
accordance with the provisions
40 of K.S.A. 77-522, and amendments
thereto, except that depositions
41 of witnesses who will be available
for the hearing shall not be al-
42 lowed.
43
(d) (e) Every hearing and
review under article 9 of chapter 72 of
SB 591--Am.
26
1 Kansas Statutes
Annotated this act shall be provided for at no cost
to the
2 child or the lawful
custodian parent of the child. The costs of any
hearing
3 provided for by a board shall be paid
by the school district.
4 (e)
(f) Any reviewing review
officer conducting a review under sub-
5 section (b) of K.S.A. 72-974,
and amendments thereto, this act may hold
6 a hearing to receive additional
evidence. Every such hearing shall be
7 conducted in accordance with
requirements which are consonant with
8 the requirements of
subsection (a) of K.S.A. 72-973, and
amendments
9 thereto this
act.
10 (f) No action
described in subsection (a) of K.S.A. 72-972, and
11 amendments thereto, shall be taken
during the pendency of any pro-
12 ceedings conducted pursuant to the
provisions of K.S.A. 72-972 to 72-
13 975, inclusive, and amendments
thereto, except that the proposed action
14 may be taken before all such
proceedings have been completed if the
15 lawful custodian of the involved
child gives written consent thereto.
16 Sec. 24. K.S.A.
72-976 is hereby amended to read as follows: 72-976.
17 (a) A Each
school district shall not be required, to
keep an exceptional
18 child in regular school programs or
to provide such exceptional child with
19 special education services for
exceptional children when it is determined
20 pursuant to the provisions of
K.S.A. 72-972 to 72-975, inclusive, and
21 amendments thereto, that the
education of such child cannot be satisfac-
22 torily achieved thereby and that
such child requires housing, maintenance
23 and special education services
provided at a state institution the maximum
24 extent appropriate, to educate children
with disabilities with children who
25 are not disabled, and to provide special
classes, separate schooling or for
26 the removal of children with
disabilities from the regular education en-
27 vironment only when the nature or
severity of the disability of the child
28 is such that education in regular
classes with supplementary aids and
29 services cannot be achieved
satisfactorily.
30 (b) Nothing in
this section shall be construed to authorize the state
31 board or any board to function as an
admitting agency to the state insti-
32 tutions or to limit or supersede or in any
manner affect the requirements
33 of each board to comply with the provisions
of K.S.A. 72-933 and 72-966,
34 and amendments thereto, to provide special
education services for each
35 exceptional child in the school district
unless and until such child meets
36 the criteria for admission to a state
institution and is so admitted by the
37 state institution. Each state institution
shall publish annually the criteria
38 for admission to such state institution and
shall furnish such criteria to
39 each board upon request therefor.
40 Sec. 25. K.S.A.
72-977 is hereby amended to read as follows: 72-977.
41 (a) Except as otherwise provided in this
section, when a school district or
42 a state institution provides
special education services for exceptional chil-
43 dren as required by this act, and a
determination has been made as pro-
SB 591--Am.
27
1 vided in K.S.A. 72-972 to
72-975, inclusive, and amendments thereto,
2 that a child is an
exceptional child and special education services are
3 necessary for such
child, it shall be the duty of the lawful
custodian parent
4 of such each
exceptional child to require such child to enroll for
and
5 attend school to receive the
special education and related services which
6 are indicated by such
determination on the child's IEP or
the to provide
7 for such services
privately.
8 (b) The provisions
of subsection (a) do not apply to gifted children
9 or to lawful
custodians parents of gifted children.
10 (c) Failure of a
parent to comply with the provisions of subsection (a)
11 shall cause the child to be deemed a
child in need of care under the code
12 for care of children.
13 Sec. 26. K.S.A.
1997 Supp. 72-978 is hereby amended to read as
14 follows: 72-978. (a) (1) In each school
year, in accordance with appropri-
15 ations for special education and
related services provided under this act,
16 each school district which has provided
special education or related serv-
17 ices in compliance with the
requirements of the state plan and the pro-
18 visions of this act shall be entitled to
receive:
19 (A) Reimbursement for
actual travel allowances paid to special teach-
20 ers at not to exceed the rate specified
under K.S.A. 75-3203, and amend-
21 ments thereto, for each mile actually
traveled during the school year in
22 connection with duties in providing special
education or related services
23 for exceptional children; such
reimbursement shall be computed by the
24 state board by ascertaining the actual
travel allowances paid to special
25 teachers by the school district for the
school year and shall be in an
26 amount equal to 80% of such actual travel
allowances;
27 (B) reimbursement in an
amount equal to 80% of the actual travel
28 expenses incurred for providing
transportation for exceptional children to
29 special education or related
services; such reimbursement shall not be
30 paid if such child has been counted in
determining the transportation
31 weighting of the district under the
provisions of the school district finance
32 and quality performance act;
33 (C) reimbursement in an
amount equal to 80% of the actual expenses
34 incurred for the maintenance of an
exceptional child at some place other
35 than the residence of such child for the
purpose of providing special
36 education or related services; such
reimbursement shall not exceed $600
37 per exceptional child per school year;
and
38 (D) after subtracting
the amounts of reimbursement under (A), (B)
39 and (C) from the total amount appropriated
for special education and
40 related services under this act, an
amount which bears the same propor-
41 tion to the remaining amount appropriated
as the number of full-time
42 equivalent special teachers who are
qualified to provide special education
43 or related services to exceptional
children and are employed by the school
SB 591--Am.
28
1 district for approved special
education or related services bears to the
2 total number of such qualified
full-time equivalent special teachers em-
3 ployed by all school districts for
approved special education or related
4 services.
5 (2) Each special
teacher who is a paraprofessional qualified to
assist
6 in the provision of special
education or related services to exceptional
7 children shall be counted as
2/5 full-time equivalent special teacher who
8 is qualified to provide special
education or related services to exceptional
9 children.
10 (b) (1) No
special teacher in excess of the number of special
teachers
11 necessary to comply with the ratio
of special teacher to exceptional chil-
12 dren prescribed by the state board
for the school district shall be counted
13 in making computations under this
section.
14 (2) No
time spent by a special teacher in connection with duties per-
15 formed under a contract entered into by the
Atchison juvenile correc-
16 tional facility, the Beloit juvenile
correctional facility, the Larned juvenile
17 correctional facility or the Topeka
juvenile correctional facility and a
18 school district for the provision of
special education or related services
19 by such state institution shall be counted
in making computations under
20 this section.
21 Sec. 27. K.S.A.
72-979 is hereby amended to read as follows: 72-979.
22 (a) Payments under this act shall be made
in a the manner to be
and at
23 such times during each school year as
are determined by the state board.
24 In the event If any
district is paid more than it is entitled to receive under
25 any distribution made under this act, the
state board shall notify the dis-
26 trict of the amount of such overpayment,
and such district shall remit the
27 same to the state board. The state board
shall remit any moneys so re-
28 ceived to the state treasurer, and the
state treasurer shall deposit the same
29 in the state treasury to the credit of the
general fund. If any such district
30 fails so to remit, the state board shall
deduct the excess amounts so paid
31 from future payments becoming due to such
district. In the event If any
32 district is paid less than the amount to
which it is entitled under any
33 distribution made under this act, the state
board shall pay the additional
34 amount due at any time within the school
year in which the underpayment
35 was made or within sixty
(60) 60 days after the end of such school year.
36 (b) The state board
shall prescribe all forms necessary for reporting
37 under this act. Funds shall be
distributed to the respective boards as soon
38 as the state board deems
practicable.
39 (c) Every board shall
make such periodic and special reports of sta-
40 tistical and financial
information to the state board as it may request in
41 order to carry out its responsibilities
under this act.
42 Sec. 28. K.S.A.
72-981 is hereby amended to read as follows: 72-981.
43 The department, upon request, shall
from time to time as requested:
SB 591--Am.
29
1 (1) Give technical
advice and assistance to any board agency
in con-
2 nection with the establishment and
maintenance of programs of screen-
3 ing, diagnosis and
certification of special education and related
services
4 for exceptional children;
5 (2) make
recommendations to any board agency
concerning appro-
6 priate special education or
related services for to be provided to
excep-
7 tional children; and
8 (3) consider and
give advice to any board agency concerning
prob-
9 lems encountered by such
board agency in complying with the
require-
10 ments of K.S.A. 72-933 and
72-966 this act.
11 Sec. 29. K.S.A.
1997 Supp. 72-983 is hereby amended to read as
12 follows: 72-983. (a) In each school year,
commencing with the 1994-95
13 school year, to the extent
that appropriations are available, each school
14 district which has provided special
education and related services for an
15 exceptional child who uniquely or
so severely differs from other excep-
16 tional children in physical,
mental, social, emotional or educational char-
17 acteristics that the costs
attributable to the provision of special education
18 services for the child are
whose IEP provides for services which cost in
19 excess of $25,000 for the school year
is shall be eligible to receive a grant
20 of state moneys in an amount equal to 75%
of that portion of the costs,
21 incurred by the district in the provision
of special education and related
22 services for the child, that is in excess
of $25,000.
23 (b) In order to be
eligible for a grant of state moneys provided for by
24 subsection (a), a school district shall
submit to the state board of education
25 an application for a grant and a
description of the special education and
26 related services provided and the
name or names of the child or children
27 for whom provided. The application and
description shall be prepared in
28 such form and manner as the state board
shall require and shall be sub-
29 mitted at a time to be determined and
specified by the state board. Ap-
30 proval by the state board of applications
for grants of state moneys is
31 prerequisite to the award of grants.
32 (c) Each school district
which is awarded a grant under this section
33 shall make such periodic and special
reports of statistical and financial
34 information to the state board as it may
request.
35 (d) All moneys received
by a school district under authority of this
36 section shall be deposited in the special
education fund of the school
37 district. Amounts received under this
section and deposited in the special
38 education fund shall be used exclusively to
reimburse the school district,
39 in part, for the excessive
amount expended in providing special education
40 and related services for
uniquely or severely different exceptional chil-
41 dren.
42 (e) The state board of
education shall:
43 (1) Prescribe and adopt
criteria for identification of uniquely or se-
SB 591--Am.
30
1 verely different exceptional
children and for and determination of exces-
2 sive costs attributable to the
provision of special education and related
3 services for such
children under this section;
4 (2) approve
applications of school districts for grants;
5 (3) determine the
amount of grants and be responsible for payment
6 of such grants to school districts;
and
7 (4) prescribe all
forms necessary for reporting under this section.
8 (f) If the amount
of appropriations for the payment of grants under
9 this section is insufficient to pay
in full the amount each school district is
10 determined to be eligible to receive for
the school year, the state board
11 shall prorate the amount appropriated among
all school districts which
12 are eligible to receive grants of state
moneys in proportion to the amount
13 each school district is determined to be
eligible to receive.
14 New Sec. 30. (a)
School personnel may order a change in the place-
15 ment of a child with a disability:
16 (1) To an appropriate
interim alternative educational setting or other
17 setting, or the short-term suspension of
the child; or
18 (2) to an appropriate
interim alternative educational setting for not
19 more than 45 calendar days if: (A) The
child carries a weapon to school
20 or to a school function under the
jurisdiction of the agency; or (B) the
21 child knowingly possesses or uses illegal
drugs or sells or solicits the sale
22 of a controlled substance while at school
or a school function under the
23 jurisdiction of the agency.
24 (b) The alternative
educational setting described in subsection (a)(2)
25 shall be determined by the IEP team.
26 (c) Either before, or
not later than 10 days after, taking a disciplinary
27 action as described in subsection (a):
28 (1) If the agency did
not conduct a functional behavioral assessment
29 and implement a behavioral intervention
plan for such child before the
30 behavior that resulted in the disciplinary
action, the agency shall convene
31 an IEP meeting to develop an intervention
plan to address that behavior;
32 or
33 (2) if the child already
has a behavioral intervention plan, the IEP
34 team shall review the plan and modify it,
as necessary, to address the
35 behavior.
36 (d) A hearing officer
who meets the qualifications specified in this
37 act may order a change in the placement of
a child with a disability to an
38 appropriate interim alternative educational
setting for not more than 45
39 calendar days if the hearing officer:
40 (1) Determines that the
agency has demonstrated, by substantial ev-
41 idence, that maintaining the current
placement of such child is substan-
42 tially likely to result in injury to the
child or to others;
43 (2) considers the
appropriateness of the child's current placement;
SB 591--Am.
31
1 (3) considers
whether the agency has made reasonable efforts to min-
2 imize the risk of harm in the child's
current placement, including the use
3 of supplementary aids and services;
and
4 (4) determines
that the interim alternative educational setting meets
5 the requirements of subsection
(e).
6 (e) Any interim
alternative educational setting in which a child is
7 placed under this section shall:
8 (1) Be selected so
as to enable the child to continue to participate in
9 the general curriculum, although in
another setting, and to continue to
10 receive those services and modifications,
including those described in the
11 child's current IEP, that will enable the
child to meet the goals set out
12 in the IEP; and
13 (2) include services and
modifications designed to address the be-
14 havior so that it does not recur.
15 (f) If a disciplinary
action is contemplated as described in subsection
16 (a) for a behavior of a child with a
disability, or if a disciplinary action
17 involving a change of placement for more
than 10 school days is contem-
18 plated for a child with a disability who
has engaged in other behavior that
19 violated any rule or code of conduct of the
agency that applies to all
20 children:
21 (1) Not later than the
date on which the decision to take that action
22 is made, the parents shall be notified of
that decision and of all procedural
23 safeguards accorded
afforded under this section
31; and
24 (2) immediately, if
possible, but in no case later than 10 school days
25 after the date on which the decision
ot to take that action is made,
a
26 review, as specified in subsection (g),
shall be conducted of the relation-
27 ship between the child's disability and the
behavior subject to the disci-
28 plinary action.
29 (g) Any review described
in subsection (f)(2) shall be conducted by
30 the child's IEP team and other qualified
personnel. In carrying out such
31 a review, the IEP team may determine that
the behavior of the child was
32 not a manifestation of such child's
disability only if the IEP team:
33 (1) First considers, in
terms of the behavior subject to disciplinary
34 action, all relevant information,
including: (A) evaluation and diagnostic
35 results, including such results or other
relevant information supplied by
36 the parents of the child; (B) observations
of the child; and (C) the child's
37 IEP and placement; and
38 (2) then determines
that: (A) In relationship to the behavior subject
39 to disciplinary action, the child's IEP and
placement were appropriate
40 and the special education services,
supplementary aids and services, and
41 behavior intervention strategies were
provided consistent with the child's
42 IEP and placement; (B) the child's
disability did not impair the ability of
43 the child to understand the impact and
consequences of the behavior
SB 591--Am.
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1 subject to disciplinary action; and
(C) the child's disability did not impair
2 the ability of the child to control
the behavior subject to disciplinary ac-
3 tion.
4 (h) (1) If
the result of the review under subsection (g) is a determi-
5 nation that the behavior of the child
was not a manifestation of the child's
6 disability, the relevant disciplinary
procedures applicable to children with-
7 out disabilities may be applied to
the child in the same manner in which
8 they would be applied to children
without disabilities, except that an ap-
9 propriate public education must
continue to be provided to the child
10 during the period of disciplinary
action.
11 (2) If the agency
initiates disciplinary procedure applicable to all chil-
12 dren, the agency shall ensure that the
special education and disciplinary
13 records of the child are transmitted for
consideration by the person or
14 persons making the final determination
regarding the disciplinary action.
15 (j) For purposes of this
section, the following definitions apply:
16 (1) ``Controlled
substance'' means a drug or other substance identi-
17 fied under schedules I, II, III, IV, or V
in 21 U.S.C. 812(c);
18 (2) ``illegal drug''
means a controlled substance but does not include
19 such a substance that is legally possessed
or used under the supervision
20 of a licensed health-care professional or
that is legally possessed or used
21 under any other authority under any federal
or state law;
22 (3) ``substantial
evidence'' means beyond a preponderance of the ev-
23 idence;
24 (4) ``weapon''
has the meaning ascribed thereto by subsection (h)
of
25 K.S.A. 1997 Supp. 72-89a01 and
amendments thereto means a weapon,
26 device, instrument, material, or
substance, animate or inanimate,
27 that is used for, or is readily
capable of, causing death or serious
28 bodily injury, except that such term
does not include a pocket knife
29 with a blade of less than 21/2 inches
in length.
30 New Sec. 31. (a)(1)
If a child's parent disagrees with a determination
31 under section 30, and amendments thereto,
that the child's behavior was
32 not a manifestation of the child's
disability or with any decision regarding
33 placement under that section, the parent
may request a due process hear-
34 ing.
35 (2) The agency shall
arrange for an expedited hearing in any case
36 described in this section when requested by
a parent.
37 (b) In reviewing a
decision with respect to the manifestation deter-
38 mination, the hearing officer shall
determine whether the agency has
39 demonstrated that the child's behavior was
not a manifestation of such
40 child's disability consistent with the
requirements of subsection (g) of
41 section 30, and amendments thereto.
42 (2) In reviewing a
decision under subsection (a)(2) of section 30, and
43 amendments thereto, to place the child in
an interim alternative educa-
SB 591--Am.
33
1 tional setting, the hearing officer
shall apply the standards set out in sub-
2 section (d) of section 30, and
amendments thereto.
3 (c) The
expedited Any hearing provided for in
section 30 or in this
4 section shall be conducted:
5 (1) By a due
process hearing officer appointed by the state board;
6 and
7 (2) within
10 business days of the date of the request for the
hearing;
8 and
9
(3) in accordance with rules and regulations adopted
by the state
10 board.
11 New Sec. 32. (a) If
a parent requests a hearing under section 31, and
12 amendments thereto, the child shall remain
in the interim alternative
13 educational setting pending the decision of
the hearing officer in regard
14 to the manifestation determination or the
interim placement decision, or
15 until the expiration of the 45-day time
period described in subsection
16 (a)(2) of section 30, and amendments
thereto, whichever occurs first,
17 unless the parent and the agency agree
otherwise.
18 (b) Except as provided
in subsection (c), if a child is placed in an
19 interim alternative educational setting
pursuant to section 30, and amend-
20 ments thereto, and school personnel propose
to change the child's place-
21 ment after expiration of the interim
alternative placement, during the
22 pendency of any proceeding to challenge the
proposed change in place-
23 ment, the agency shall return the child to
the child's placement prior to
24 the interim alternative educational
setting.
25 (c) (1) If the
agency maintains that it is dangerous for the child to be
26 returned to the child's placement prior to
removal to the interim alter-
27 native education setting during the
pendency of due process proceedings,
28 the agency may request an expedited hearing
in regard to the proposed
29 change in placement.
30 (2) In determining
whether the child may be placed in the alternative
31 education setting or in another appropriate
placement ordered by the
32 hearing officer, the hearing officer shall
apply the standards set out in
33 subsection (d) of section 30, and
amendments thereto.
34 New Sec. 33. (a) A
child who has not been determined to be eligible
35 for special education and related services
under this act and who has
36 engaged in behavior that violated any rule
or code of conduct of the school
37 district, including any behavior described
in section 30 and amendments
38 thereto, may assert any of the protections
provided for in this act if the
39 school district had knowledge, as
determined in accordance with this sec-
40 tion, that the child was a child with a
disability before the behavior that
41 precipitated the disciplinary action
occurred.
42 (b) A school district
shall be deemed to have knowledge that a child
43 is a child with a disability if:
SB 591--Am.
34
1 (1) The parent of
the child has expressed concern in writing, unless
2 the parent is illiterate or has a
disability that prevents compliance with
3 the requirements contained in this
clause, to personnel of the appropriate
4 educational agency that the child is
in need of special education and
5 related services;
6 (2) the behavior
or performance of the child demonstrates the need
7 for such services;
8 (3) the parent of
the child previously has requested an evaluation of
9 the child; or
10 (4) the teacher of the
child, or other personnel of the school district,
11 previously has expressed concern about the
behavior or performance of
12 the child to the director of special
education of such school district or to
13 other personnel of the district.
14 (c) (1) Subject to
provision (2) of this subsection, if a school district
15 does not have knowledge that a child is a
child with a disability prior to
16 taking disciplinary action against the
child, the child may be subjected to
17 the same disciplinary action as is applied
to children without disabilities
18 who engage in comparable behaviors.
19 (2) If a request is made
for an evaluation of a child during the time
20 period in which the child is subjected to
disciplinary action described by
21 this act, an evaluation shall be conducted
in an expedited manner. If the
22 child is determined to be a child with a
disability, taking into consideration
23 information from the evaluation conducted
by the school district and in-
24 formation provided by the parents, the
school district shall provide special
25 education and related services in
accordance with the provisions of this
26 act, except that, pending the results of
the evaluation, the child shall
27 remain in the educational placement
determined by school authorities,
28 which may be long-term suspension or
expulsion from school.
29 New Sec. 34. (a)
Nothing in this act shall be construed to prohibit
30 an agency from reporting a crime committed
by a child with a disability
31 to appropriate authorities or to prevent
state or local law enforcement
32 and judicial authorities from exercising
their responsibilities with regard
33 to the application of federal, state, or
local law to crimes committed by a
34 child with a disability.
35 (b) An agency reporting
a crime committed by a child with a disability
36 shall ensure that copies of the special
education and disciplinary records
37 of the child are transmitted for
consideration by the appropriate author-
38 ities to whom it reports the crime.
39 New Sec. 35. (a) The
state board shall establish and implement
40 procedures to allow agencies and
parents to resolve disputes
41 through a mediation process which, at
a minimum, shall be avail-
42 able whenever a due process hearing
is requested under this act.
43 (b) The procedures
adopted shall ensure that the mediation pro-
SB 591--Am.
35
1 cess is:
2
(1) Voluntary on the part of the parties;
3 (2) not used
to deny or delay a parent's right to a due process
4 hearing, or to deny any other
rights afforded under this act; and
5
(3) conducted by a qualified and impartial mediator who
is
6 trained in effective mediation
techniques.
7 (c) The
procedures may allow an agency to establish procedures
8 to require parents who choose
not to use the mediation process to
9 meet, at a time and location
convenient to the parents, with a dis-
10 interested party who is under
contract with:
11 (1) A parent
training and information center or community par-
12 ent resource center in the state;
or
13 (2) an appropriate
alternative dispute resolution entity, to en-
14 courage to use, and explain the
benefits, of the mediation process
15 to the parents.
16 (d) The state
board shall maintain a list of individuals who are
17 qualified mediators and knowledgeable
in laws and regulations re-
18 lating to the provision of special
education and related services and
19 shall establish procedures for the
appointment of a mediator to help
20 resolve disputes between the
parties.
21 (e) The state
board shall bear the cost of the mediation process,
22 including the costs of meetings
described in subsection (c).
23 (f) Each session
in the mediation process shall be scheduled in
24 a timely manner and shall be held in
a location that is convenient
25 to the parties to the
dispute.
26 (g) An agreement
reached by the parties to the dispute in the
27 mediation process shall be set forth
in a written mediation agree-
28 ment.
29 (h) Discussions
that occur during the mediation process shall
30 be confidential and may not be used
as evidence in any subsequent
31 due process hearings or civil
proceedings and the parties to the
32 mediation process may be required to
sign a confidentiality pledge
33 prior to the commencement of such
process.
34 Sec. 35
36. K.S.A. 38-1513a is hereby amended to read as
follows:
35 38-1513a. (a) When the court has granted
legal custody of a child in a
36 hearing under the Kansas code for care of
children to an agency, associ-
37 ation or individual, the custodian,
or an agent designated by the custodian,
38 shall have authority to make educational
decisions for the child if the
39 parents of the child are unknown or
unavailable. When the custodian of
40 the child is the secretary, and the
parents of the child are unknown or
41 unavailable, and the child appears
to be an exceptional child who requires
42 special education
services, the secretary shall immediately notify
the state
43 board of education, or a designee of the
state board, and the school district
SB 591--Am.
36
1 in which the child is residing that
the child is in need of an education
2 advocate. As soon as possible after
notification by the secretary of the
3 need by a child of an education
advocate, the state board of education,
4 or its designee, shall appoint an
education advocate for the child.
5 (b) As used in
this section, the terms exceptional child, special edu-
6 cation services, and
education advocate have the meanings respectively
7 ascribed thereto in the special
education for exceptional children act.
8
Sec. 36 37. K.S.A. 1997
Supp. 72-53,109 is hereby amended to read
9 as follows: 72-53,109. (a) Subject
to the provisions of subsection (b), no
10 school district shall be required to
provide any person, who is 16 years of
11 age or older, has been prosecuted as an
adult, convicted of a crime, and
12 incarcerated in a county jail or state
correctional institution, with an op-
13 portunity to attend school at a school
facility operated by the school dis-
14 trict for the period of time the person is
incarcerated, nor shall any school
15 district be required to provide any such
person with educational services
16 at the county jail or state correctional
institution in which the person is
17 incarcerated.
18 (b) The provisions of
subsection (a) do not apply to any person who
19 is under 18
21 years of age and who, immediately prior to
conviction and
20 incarceration, was determined to be
an exceptional child, except for an
21 exceptional child who is determined
to be a gifted child, a child with a
22 disability for whom an individualized
education program had been de-
23 veloped and effectuated under the
provisions of the special education for
24 exceptional children act.
25 Sec. 37
38. K.S.A. 38-1513a, 72-933, 72-961, 72-963,
72-963a, 72-
26 963b, 72-963c, 72-964, 72-965, 72-966,
72-967, 72-969, 72-970, 72-971,
27 72-972, 72-973, 72-973a, 72-975, 72-976,
72-977, 72-979, 72-980 and, 72-
28 981, 72-5392, 72-5393 and
72-5394 and K.S.A. 1997 Supp. 72-962, 72-
29 968, 72-974, 72-978, 72-983 and 72-53,109
are hereby repealed.
30 Sec. 38
39. This act shall take effect and be in force
from and after
31 its publication in the statute book.
32