As Amended by House Committee
As Further Amended by Senate Committee
As Amended by Senate Committee
Session of 1999
SENATE BILL No. 129
By Committee on Education
1-25
12 AN ACT
concerning exceptional children; relating to the provision of
13 special education and
related services; amending K.S.A. 38-1513a, 72-
14 961, 72-963, 72-963a,
72-963c, 72-964, 72-965, 72-966, 72-967, 72-
15 970, 72-971, 72-973,
72-973a, 72-975, 72-976, 72-977, 72-979
and, 72-
16 981, 72-5392,
72-5393 and 72-5394 and K.S.A. 1998 Supp. 72-962,
17 72-968, 72-974,
72-978, 72-983, 72-53,109 and 72-8902 and repealing
18 the existing sections;
also repealing K.S.A. 72-933, 72-963b, 72-969,
19 72-972 and 72-980.
20
21 Be it enacted by the Legislature of the
State of Kansas:
22 Section
1. K.S.A. 72-961 is hereby amended to read as follows: 72-
23 961. This act shall be known and may be
cited as the "special education
24 for exceptional children act." It
is the purpose and intention of this act
25 to provide for educational
opportunities which will contribute to the de-
26 velopment of each exceptional child
in this state in accord with his or her
27 abilities and
capacities.
28 Sec.
2. K.S.A. 1998 Supp. 72-962 is hereby amended to read as
fol-
29 lows: 72-962. As used in this act:
30 (a) "School
district" means any public school district.
31 (b) "Board" means
the board of education of any school district.
32 (c) "State board"
means the state board of education.
33 (d) "Department"
means the state department of education.
34 (e) "State
institution" means Topeka state hospital, Osawatomie
state
35 hospital, Rainbow mental health
facility, Larned state hospital, Parsons
36 state hospital and training center,
Winfield state hospital and training
37 center, Kansas neurological
institute and any juvenile correctional facility
38 as defined by K.S.A. 38-1602, and
amendments thereto any institution
39 under the jurisdiction of a state
agency.
40 (f) "State
agency" means the secretary of social and rehabilitation
41 services, the secretary of corrections,
and the commissioner of juvenile
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1 justice.
2
(f) (g) "Exceptional children" means
persons who: (1) are children
3 with disabilities or gifted
children and are school age, to be determined
4 in accordance with rules and
regulations adopted by the state board,
5 which age may differ from the ages of
children required to attend school
6 under the provisions of K.S.A.
72-1111, and amendments thereto; and
7 (2) differ in physical,
mental, social, emotional or educational character-
8 istics to the extent that
special education services are necessary to enable
9 them to receive educational
benefits in accordance with their abilities or
10 capacities.
11 (g)
(h) "Gifted children" means exceptional children who
are deter-
12 mined to be within the gifted category of
exceptionality as such category
13 is defined in by
the state plan board.
14 (h)
(i) "Special education services" means
programs for which spe-
15 cialized training, instruction,
programming techniques, facilities and
16 equipment may be needed for the
education of exceptional children spe-
17 cially designed instruction provided at
no cost to parents to meet the
18 unique 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)
(j) "Special teacher" means a person, employed
by or under con-
23 tract with a school district or a
state institution for to provide
special
24 education or related
services, who is: (1) A teacher Qualified
to instruct
25 provide special education or related
services to exceptional children as
26 determined by pursuant
to standards established by the state board
and
27 who is so certified by the state
board; or (2) a paraprofessional
qualified
28 to assist certificated
teachers in the instruction
provision of special edu-
29 cation or related services to
exceptional children as determined by
pur-
30 suant to standards established by
the state board and who is so approved
31 by the state board.
32 (j)
(k) "State plan" means the state plan for special
education and
33 related services authorized by this
act.
34 (k)
(l) "Agency" means boards and the secretary of
social and reha-
35 bilitation services
state agencies.
36
(l) "Lawful custodian" means a parent or a person
acting as parent.
37 If none of the above is known or
can be found, an agency shall cause
38 proper proceedings to be instituted
pursuant to the Kansas code for care
39 of children to determine whether a
child is a child in need of care. For a
40 child whose custodian is the
secretary of social and rehabilitation services,
41 the term lawful custodian means the
secretary except, when used in
42 K.S.A. 72-972 through 72-975, and
amendments to such sections, the
43 term means an education
advocate.
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1
(m) "Parent" means a natural parent, an adoptive parent,
or a step-
2 parent person
acting as parent, a legal guardian, or an
education
3 advocate.
4
(n) "Person acting as parent"
means: (1) A guardian or conservator;
5 or (2) a person, other than a
parent, who is liable by law to maintain, care
6 for, or support the child, or
who has actual care and control of the child
7 and is contributing the major
portion of the cost of support of the child,
8 or who has actual care and
control of the child with the written consent
9 of a person who has legal
custody of the child, or who has been granted
10 custody of the child by a court of
competent jurisdiction.
11 (n) "Person acting as parent"
means a person such as a grand-
12 parent or a stepparent with whom a child
lives or a person other
13 than a parent who is legally responsible
for the welfare of a child.
14
(o) (o) "Education advocate" means
a person appointed by the state
15 board in accordance with the provisions
of K.S.A. 38-1513a, and amend-
16 ments thereto. A person appointed as an
education advocate for a child
17 shall not be: (1) An employee
of the agency which is required by law to
18 provide special education or related
services for the child, or; (2) an em-
19 ployee of the state board, the department,
or any agency which is directly
20 involved in providing educational services
for the child,; or (3) any person
21 having a professional or personal interest
which would conflict with the
22 interests of the child.
23
(o) (p) "Free
appropriate public education" means special education
24 and related services that: (1) Are
provided at public expense, under public
25 supervision and direction, and without
charge; (2) meet the standards of
26 the state board; (3) include an
appropriate preschool, elementary, or sec-
27 ondary school education; and (4) are
provided in conformity with an
28 individualized education
program.
29
(p) (q) "Federal law"
means the individuals with disabilities educa-
30 tion act, as amended.
31
(q)
(r) "Individualized education program" or "IEP"
means a written
32 statement for each exceptional child
that is developed, reviewed, and re-
33 vised in accordance with the provisions
of section 12, and amendments
34 thereto.
35
(r)
(s) "Related services" means transportation, and
such develop-
36 mental, corrective, and other supportive
services, including speech-lan-
37 guage pathology and audiology services,
psychological services, physical
38 and occupational therapy, recreation,
including therapeutic recreation,
39 social work services, counseling
services, including rehabilitation coun-
40 seling, orientation and mobility
services, and medical services, except that
41 such medical services shall be for
diagnostic and evaluation purposes only,
42 as may be required to assist an
exceptional child to benefit from special
43 education, and includes the early
identification and assessment of disa-
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1 bling conditions in
children.
2
(s)
(t) "Supplementary aids and services" means aids,
services, and
3 other supports that are provided
in regular education classes or other
4 education-related settings to
enable children with disabilities to be edu-
5 cated with nondisabled children to
the maximum extent appropriate.
6
(t)
(u) "Individualized education program team" or "IEP
team"
7 means a group of individuals
composed of: (1) The parents of a child; (2)
8 at least one regular education
teacher of the child, if the child is, or may
9 be, participating in the regular
education environment; (3) at least one
10 special education teacher or, where
appropriate, at least one special ed-
11 ucation provider of the child; (4) a
representative of the agency directly
12 involved in providing educational
services for the child who: (A) Is qual-
13 ified to provide, or supervise the
provision of, specially designed instruc-
14 tion to meet the unique needs of
exceptional children; (B) is knowledgeable
15 about the general curriculum; and (C) is
knowledgeable about the avail-
16 ability of resources of the agency; (5)
an individual who can interpret the
17 instructional implications of evaluation
results; (6) at the discretion of the
18 parent or the agency, other individuals
who have knowledge or special
19 expertise regarding the child, including
related services personnel as ap-
20 propriate; and (7) whenever appropriate,
the child.
21
(u)
(v) "Evaluation" means a multisourced and
multidisciplinary ex-
22 amination, conducted in accordance with
the provisions of section 11, and
23 amendments thereto, to determine whether
a child is an exceptional child.
24
(v)
(w) "Independent educational evaluation" means an
examination
25 which is obtained by the parent of an
exceptional child and performed by
26 an individual or group of individuals
who meet state and local standards
27 to conduct such an examination.
28
(w)
(x) "Elementary school" means any nonprofit
institutional day or
29 residential school that offers
instruction in any or all of the grades kin-
30 dergarten through nine.
31
(x)
(y) "Secondary school" means any nonprofit
institutional day or
32 residential school that offers
instruction in any or all of the grades nine
33 through 12.
34
(y)
(z) "Children with disabilities" means children with
mental re-
35 tardation, hearing impairments including
deafness, speech or language
36 impairments, visual impairments
including blindness, emotional distur-
37 bance, orthopedic impairments, autism,
traumatic brain injury, other
38 health impairments, or specific learning
disabilities and who, by reason
39 thereof, need special education and
related services.
40
(z)
(aa) "Substantial change in placement" means the
movement of
41 an exceptional child, for more than 25%
of the child's school day, from a
42 less restrictive environment to a more
restrictive environment or from a
43 more restrictive environment to a less
restrictive environment, or the ad-
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1 dition to, or deletion
from, the child's IEP of a related service or a
sup-
2 plementary aid or
service.
3
(aa)
(bb) "Material change in services" means an
increase or
4 decrease of 25% or more of the
duration or frequency of a special
5 education service, a related
service or a supplementary aid or a
6 service specified on the IEP of
an exceptional child.
7 Sec.
3. K.S.A. 72-963 is hereby amended to read as follows:
72-963.
8 The state board shall adopt,
from time to time amend, and administer
9 the state plan. The state board
may amend the state plan as necessary.
10 The state plan, and any amendments
thereto, shall be prepared in con-
11 sultation with the state advisory council
for special education provided
12 for in this act. The state plan
shall include a statement of the objectives
13 of state supervision of special
education services in school districts and
14 state institutions.
15 The state board may
adopt rules and regulations for the
administration
16 of the special education for
exceptional children this act and shall adopt
17 rules and regulations necessary to
comply with the federal law and to
18 implement and give effect to the
state plan. Rules and regulations adopted
19 by the state board to implement and
give effect to the state plan shall
20 include the following:
21
(a) Provisions for the establishment, maintenance and
supervision of
22 special education services in
school districts and state institutions the
pro-
23 visions of this act.
24
(b) Prescribed courses of study and curricula
necessary to meet
25 requirements for approval of
special education services.
26
(c) Criteria for screening, diagnosis and certification of
exceptional
27 children including physical,
educational and psychological examinations.
28 No child from a home in which
English is not the principal language may
29 be assigned to special education
services for exceptional children until
30 such time that the child has been
given, in the principal language used
31 in the home of the child,
examinations reasonably related to the child's
32 cultural environment.
33
(d) Definitions of the various categories of
exceptionality.
34
(e) Implementation dates of special education services for the
various
35 categories of
exceptionality.
36
(f) Standards for special education services to be received by
each of
37 the several categories of
exceptional children.
38 Rules and
regulations adopted by the state board to implement
and
39 give effect to the state plan shall
be incorporated by reference in the state
40 plan.
41 Sec.
4. K.S.A. 72-963a is hereby amended to read as follows:
72-
42 963a. Within 30 days after the
effective date of this act, The state board
43 shall:
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1
(a) Establish procedures, which shall be utilized by each
agency, to
2 allow parties to disputes
involving any matter described in subsection
3 (b)(4) of section 17, and
amendments thereto, or in section 31, and amend-
4 ments thereto, to resolve such
disputes through a mediation process or
5 through due process hearings which
meet the requirements of the federal
6 law and this act.
7
(a) (b) Establish, in consultation
with the state advisory council for
8 special education, standards and
requirements for qualification of persons
9 as hearing officers and
mediators. Such standards and requirements shall
10 include, but not be limited to, standards
and requirements relating to the
11 education and training necessary to assure
the competent performance
12 of functions and procedures which hearing
officers and mediators are
13 authorized to perform.
14 (b)
(c) Establish standards and criteria for conducting and
approving
15 training programs for hearing officers
and mediators.
16 (c)
(d) Compile and maintain a list of qualified hearing
officers and
17 mediators.
18 Sec.
5. K.S.A. 72-963c is hereby amended to read as follows:
72-
19 963c. (a) The state board, in consultation
with the state advisory council
20 for special education, shall:
21 (1) Prescribe
guidelines for the selection of persons for appointment
22 as education advocates and for the exercise
of their authorized powers,
23 duties and functions;
24 (2) establish
standards and criteria for qualification of persons for
25 appointment as education advocates; and
26 (3) provide for
special training programs with respect to the powers,
27 duties and functions of lawful
custodians parents.
28
(b) Lawful custodians Parents who are
education advocates shall, and
29 all other lawful
custodians parents may, participate in the special
training
30 programs provided for under provision (3)
of subsection (a).
31 (c) The
state board shall adopt rules and regulations for
effectuation
32 of the provisions of this section
and shall make such rules and regulations
33 a part of the state
plan.
34 Sec.
6. K.S.A. 72-964 is hereby amended to read as follows:
72-964.
35 (a) The There is
established a state advisory council for special education
36 which shall consist of
nine not more than 21 members. Members of
the
37 advisory council shall be appointed by the
state board of education, and
38 every such appointment
shall be serve for a fixed
term of not to exceed
39 three years. No member may serve more
than two consecutive terms
40 whenever a vacancy occurs in the membership
of the advisory council for
41 any reason other than the expiration of the
term of a member, the state
42 board shall appoint a successor for the
remainder of the unexpired term.
43 Members appointed
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1 (b)
(1) The advisory council established under this section
shall be
2 representative of the state
population and be comprised of persons and
3 community organizations
interested in exceptional children, professions
4 related to the educational
needs of involved in, or concerned with, the
5 education of exceptional
children, local school districts and boards of
ed-
6 ucation thereof, state
institutions of higher education and state institu-
7 tions. including:
(A) Parents of exceptional children, at least one
of
8 whom shall be the parent of a
gifted child; (B) individuals with disa-
9 bilities; (C) teachers; (D)
representatives of institutions of higher educa-
10 tion that prepare special education and
related services personnel; (E)
11 state and local education officials; (F)
administrators of programs for ex-
12 ceptional children; (G) representatives
of other state agencies involved in
13 the financing or delivery of related
services to exceptional children; (H)
14 representatives of private schools and
public charter schools; (I) at least
15 one representative of a vocational,
community, or business organization
16 concerned with the provision of
transition services to children with dis-
17 abilities; and (J) representatives from
the state juvenile and adult correc-
18 tions agencies.
19 (2) A majority
of the members of the advisory council shall be indi-
20 viduals with disabilities or parents of
children with disabilities.
21 (b)
(c) The state advisory council for special education
shall:
22 (1) Advise
and consult with the state board in the
preparation and
23 administration of the state plan
and in the formulation and review of rules
24 and regulations adopted pursuant to
this act; (2) consider any problems
25 presented to it by the state board,
and give advice thereon; and (3) make
26 recommendations to the state board
concerning special education serv-
27 ices. In addition, the advisory
council shall have and perform such powers,
28 functions and duties as are
specified by law. of unmet needs within the
29 state in the education of exceptional
children;
30 (2) comment
publicly on any rules and regulations proposed by the
31 state board regarding the education of
exceptional children;
32 (3) advise the
state board in developing evaluations and reporting on
33 data to the federal government;
34 (4) advise the
state board in developing corrective action plans to
35 address findings identified in federal
monitoring reports; and
36 (5) advise the
state board in developing and implementing policies
37 relating to the coordination of services
for exceptional children.
38 (c)
(d) Members of the state advisory council for special
education
39 attending meetings of such council, or
attending a subcommittee meeting
40 thereof authorized by the state board,
shall be paid subsistence allow-
41 ances, mileage and other expenses as
provided in K.S.A. 75-3223, and
42 amendments thereto.
43 (d)
(e) The state board shall call the members of the
advisory council
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1 to meet at Topeka at
least once each year, at which meeting the council
2 shall organize by electing a
chairperson and a vice-chairperson. The per-
3 son in the department specified
under direction of the state board to be
4 the principal administrator of
special education and related services shall
5 be the secretary of the advisory
council. The council shall meet upon the
6 call of the chairperson or upon the
call of the state board as often as may
7 be necessary at times and places
designated by the chairperson or by the
8 state board in order to fulfill the
duties prescribed under the provisions
9 of the special education for
exceptional children this act.
10 Sec.
7. K.S.A. 72-965 is hereby amended to read as follows:
72-965.
11 (a) The state board shall be responsible
for the distribution and allocation
12 of state and federal funds for special
education in accordance with ap-
13 propriation acts and the statutes
of this state. Such moneys shall be ex-
14 pended only in accordance with and for the
purposes specified in federal
15 or state law. Payments under this act may
be made in installments and in
16 advance or by way of reimbursement, with
necessary adjustments on ac-
17 count of for
overpayments or underpayments. Federal funds for special
18 education shall be deposited in the state
treasury.
19 (b) The state
board is hereby authorized to accept from an individual
20 or individuals, the United States
government or any of its agencies or any
21 other public or private body, grants or
contributions of money, funds or
22 property which the state board may
authorize to be used in accordance
23 with appropriation acts, for or in aid of
special education or related serv-
24 ices or any of the purposes authorized by
the federal law or this act or
25 the state plan.
26 Sec.
8. K.S.A. 72-966 is hereby amended to read as follows:
72-966.
27 (a) The Each board
of education of every school district shall
provide
28 special education services for all
exceptional children who are residents
29 of the school district.
adopt and implement procedures to assure that all
30 exceptional children residing in the
school district, including children en-
31 rolled in private schools, who are in
need of special education and related
32 services, are identified, located and
evaluated.
33 (2) Each board
shall provide a free appropriate public education for
34 exceptional children enrolled in the
school district and for children with
35 disabilities who are placed in a private
school or facility by the school
36 district as the means of carrying out
the board's obligation to provide a
37 free appropriate public education under
this act and for children with
38 disabilities who have been suspended for
an extended term or expelled
39 from school.
40 (3) Each board
shall provide exceptional children who are enrolled
41 by their parents in private schools with
special education and related
42 services in accordance with state law
and federal law.
43
(b) When If an exceptional child,
upon referral by a person licensed
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1 to practice medicine and
surgery, is admitted to a hospital, treatment
2 center, or other health care
institution, or to a group boarding home or
3 other care facility, and the
institution or facility is located outside the
4 school district in which the child
resides, the district in which the insti-
5 tution or facility is located
must may contract with the district in
which
6 a parent or person acting as
parent of the child resides, to provide
special
7 education or related services, if
such services are necessary for the child.
8 Special education and related
services required by this subsection shall
9 may be provided pursuant to
and in accordance with a contract
which
10 shall be entered into
between the board of education of the school
district
11 of which the child is a resident and the
board of education of the school
12 district in which the child is
living housed. Each
Any such contract shall
13 be subject to the provisions of
subsection subsections (a)(3) and
subsec-
14 tion (c) of K.S.A. 72-967,
and amendments thereto. If a contract is not
15 entered into between the school
districts, the child shall be deemed to be
16 a pupil of the school district which is
providing special education and
17 related services to the child.
Nothing in this subsection shall be construed
18 to limit or supersede or in any manner
affect or diminish the requirements
19 of compliance by each school district with
the provisions of subsection
20 (a), but shall operate as a comity of
school districts in assuring the pro-
21 vision of special education services for
each exceptional child in the state.
22 (c)
(1) Special education and related services
required by this section
23 shall meet standards and criteria set by
the state board.
24 (2) The
manner and time for implementation in school districts
of
25 special education services designed
for each of the various categories of
26 exceptionality shall be designated
by the state board in accordance with
27 the state plan. shall
be responsible for assuring that the requirements of
28 the federal law and this act are met and
that all educational programs for
29 exceptional children, including programs
administered by any other state
30 agency: (A) Are under the general
supervision of individuals who are
31 responsible for educational programs for
exceptional children; and (B)
32 meet the educational standards
prescribed by the state board.
33 (3) Provision
(2) of this subsection shall not limit the responsibility
of
34 any other state agency to provide, or
pay for some or all of the costs of,
35 a free appropriate public education for
an exceptional child.
36 (d) Consistent
with state and federal law, state agencies shall enter
37 into such interagency agreements as are
necessary or advisable in making
38 a free appropriate public education
available to all exceptional children
39 residing in the state. The state board
shall establish procedures for re-
40 solving interagency disputes, including
procedures under which local ed-
41 ucational agencies may initiate
proceedings to secure reimbursement or
42 otherwise implement or seek enforcement
of the provisions of the intera-
43 gency agreement.
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1 New Sec.
9. The state board shall:
2
(1) Establish goals for the performance of children with
disabilities
3 in the state that: (A) Will promote
the purposes of this act; and (B) are
4 consistent, to the maximum extent
appropriate, with other goals and stan-
5 dards for children established by the
state board;
6
(2) establish performance indicators the state will use to
assess pro-
7 gress toward achieving those goals
that, at a minimum, address the per-
8 formance of children with
disabilities on assessments, dropout rates, and
9 graduation rates;
10 (3) every two
years, report to the secretary of the U.S. department
11 of education, and to the public, the
progress of the state, and of children
12 with disabilities in the state, toward
meeting the goals established under
13 this section; and
14 (4) based on its
assessment of that progress, revise its state improve-
15 ment plan in accordance with the provisions
of subpart 1 of part D of the
16 federal law as may be needed to improve
performance, if the state re-
17 ceives assistance under that subpart.
18 New Sec.
10. (a) The state board and each board shall include, to
19 the extent required by the federal law and
this act, exceptional children
20 in general state and district-wide
assessment programs, with appropriate
21 accommodations where necessary. As
appropriate, the state board and
22 each board shall:
23 (1) Develop
guidelines for the participation of children with disabil-
24 ities in alternate assessments for those
children who cannot participate in
25 state and district-wide assessment
programs; and
26 (2) develop and,
beginning not later than July 1, 2000, conduct those
27 alternate assessments.
28 (b) The state
board shall make available to the public, and report to
29 the public with the same frequency and in
the same detail as it reports
30 on the assessment of nondisabled children,
the following:
31 (1) The number of
children with disabilities participating in regular
32 assessments;
33 (2) the number of
children with disabilities participating in alternate
34 assessments; and
35 (3) the
performance of children with disabilities on regular assess-
36 ments beginning not later than July of
1999, and on alternate assessments
37 not later than July 1, 2000, if doing so
would be statistically sound and
38 would not result in the disclosure of
performance results identifiable of
39 individual children.
40 (c) Data relating
to the performance of children with disabilities shall
41 be disaggregated for assessments conducted
after the effective date of
42 this act.
43 New Sec.
11. (a) (1) An agency shall conduct a full and individual
SB 129--Am. by H
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1 initial evaluation in accordance with
this section before the initial provi-
2 sion of special education and related
services to an exceptional child. Such
3 initial evaluation shall consist of
procedures to determine whether a child
4 is an exceptional child and the
educational needs of such child.
5 (2) An
agency proposing to conduct an initial evaluation of a child
6 shall obtain informed consent from
the parent of such child before the
7 evaluation is conducted. Parental
consent for evaluation shall not be con-
8 strued as consent for placement for
receipt of special education and re-
9 lated services.
10 (3) If the
parents of a child refuse consent for evaluation of the child,
11 the agency may, but shall not be required
to, continue to pursue an eval-
12 uation by utilizing the mediation or due
process procedures prescribed
13 in this act.
14 (b) Each agency
shall ensure that a reevaluation of each exceptional
15 child is conducted:
16 (1) If conditions
warrant a reevaluation or if the child's parent or
17 teacher requests a reevaluation, but at
least once every 3 years; and
18 (2) in accordance
with subsections (c), (d) and (e).
19 (c) An agency
shall provide notice to the parents of a child that de-
20 scribes any evaluation procedures such
agency proposes to conduct. In
21 conducting the evaluation, the agency
shall:
22 (1) Use a variety
of assessment tools and strategies to gather relevant
23 functional and developmental information,
including information pro-
24 vided by the parent, that may assist in
determining whether the child is
25 an exceptional child and the content of the
child's individualized educa-
26 tion program, including information related
to enabling the child to be
27 involved, and progress, in the general
curriculum or, for preschool chil-
28 dren, to participate in appropriate
activities;
29 (2) not use any
single procedure as the sole criterion for determining
30 whether a child is an exceptional child or
determining an appropriate
31 educational program for the child; and
32 (3) use
technically sound instruments that may assess the relative con-
33 tribution of cognitive and behavioral
factors, in addition to physical or
34 developmental factors.
35 (d) An agency
shall ensure that:
36 (1) Tests and
other evaluation materials used to assess a child under
37 this section: (A) Are selected and
administered so as not to be discrimi-
38 natory on a racial or cultural basis; and
(B) are provided and administered
39 in the child's native language or other
mode of communication, unless it
40 is clearly not feasible to do so; and
41 (2) any
standardized tests that are given to the child: (A) Have been
42 validated for the specific purpose for
which they are used; (B) are ad-
43 ministered by trained and knowledgeable
personnel; and (C) are admin-
SB 129--Am. by H
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1 istered in accordance with any
instructions provided by the producer of
2 such tests;
3 (3) the
child is assessed in all areas of suspected disability; and
4
(4) assessment tools and strategies that provide relevant
information
5 that directly assists persons in
determining the educational needs of the
6 child are provided.
7 (e) Upon
completion of administration of tests and other evaluation
8 materials:
9 (1) The
determination of whether the child is an exceptional child
10 shall be made by a team of qualified
professionals and the parent of the
11 child in accordance with this section;
and
12 (2) a copy of the
evaluation report and the documentation of deter-
13 mination of eligibility shall be given to
the parent.
14 (f) In making a
determination of eligibility under this section, a child
15 shall not be determined to be an
exceptional child if the determinant
16 factor for such determination is lack of
instruction in reading or math or
17 limited English proficiency.
18 (g) As part of an
initial evaluation, if appropriate, and as part of any
19 reevaluation under this section, the IEP
team and other qualified pro-
20 fessionals, as appropriate, shall:
21 (1) Review
existing evaluation data on the child, including evaluations
22 and information provided by the parents of
the child, current classroom-
23 based assessments and observations, and
teacher and related services pro-
24 viders' observations; and
25 (2) on the basis
of that review, and input from the child's parents,
26 identify what additional data, if any, are
needed to determine: (A)
27 Whether the child has a particular
exceptionality, or in the case of a
28 reevaluation of a child, whether the child
continues to have such excep-
29 tionality; (B) the present levels of
performance and educational needs of
30 the child; (C) whether the child needs
special education and related serv-
31 ices; or in the case of a reevaluation of a
child, whether the child continues
32 to need special education and related
services; and (D) whether any ad-
33 ditions or modifications to the special
education and related services are
34 needed to enable the child to meet the
measurable annual goals set out
35 in the IEP of the child and to participate,
as appropriate, in the general
36 curriculum.
37 (h) Each agency
shall obtain informed parental consent prior to con-
38 ducting any reevaluation of an exceptional
child, except that such in-
39 formed consent need not be obtained if the
agency can demonstrate that
40 it took reasonable measures to obtain such
consent and the child's parent
41 failed to respond.
42 (i) If the IEP
team and other qualified professionals, as appropriate,
43 determine that no additional data are
needed to determine whether the
SB 129--Am. by H
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1 child continues to be an exceptional
child, the agency:
2 (1) Shall
notify the child's parents of: (A) That determination and the
3 reasons for it; and (B) the rights of
such parents to request an assessment
4 to determine whether the child
continues to be an exceptional child; and
5 (2) shall
not be required to conduct such an assessment unless re-
6 quested by the child's parents.
7 (j) An
agency shall evaluate a child in accordance with this section
8 before determining that the child is
no longer an exceptional child.
9 New Sec.
12. (a) (1) Except as specified in provision (2), at the
be-
10 ginning of each school year, each agency
shall have an individualized
11 education program in effect for each
exceptional child.
12 (2) In the case
of a child with a disability aged three through five and
13 for two year-old children with a disability
who will turn age three during
14 the school year, an individualized family
service plan that contains the
15 material described in 20 U.S.C. 1436, and
that is developed in accordance
16 with this section, may serve as the IEP of
the child if using that plan as
17 the IEP is agreed to by the agency and the
child's parents.
18 (b) The IEP for
each exceptional child shall include:
19 (1) A statement
of the child's present levels of educational perform-
20 ance, including: (A) How the child's
disability or giftedness affects the
21 child's involvement and progress in the
general curriculum; or (B) for
22 preschool children, as appropriate, how the
disability affects the child's
23 participation in appropriate
activities;
24 (2) a statement of measurable annual
goals, including benchmarks or
25 short-term objectives, related to: (A)
Meeting the child's needs that result
26 from the child's disability or giftedness,
to enable the child to be involved
27 in and progress in the general or advanced
curriculum; and (B) meeting
28 each of the child's other educational needs
that result from the child's
29 disability or giftedness;
30 (3) a statement
of the special education and related services and sup-
31 plementary aids and services to be provided
to the child, or on behalf of
32 the child, and a statement of the program
modifications or supports for
33 school personnel that will be provided for
the child: (A) To advance ap-
34 propriately toward attaining the annual
goals; (B) to be involved and pro-
35 gress in the general curriculum in
accordance with provision (1) and to
36 participate in extracurricular and other
nonacademic activities; and (C)
37 to be educated and participate with other
exceptional and nonexceptional
38 children in the activities described in
this paragraph;
39 (4) an
explanation of the extent, if any, to which the child will not
40 participate with nonexceptional children in
the regular class and in the
41 activities described in provision (3);
42 (5) (A) a
statement of any individual modifications in the adminis-
43 tration of state or district-wide
assessments of student achievement that
SB 129--Am. by H
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1 are needed in order for the child to
participate in such assessment; and
2 (B) if the IEP team determines that
the child will not participate in a
3 particular state or district-wide
assessment of student achievement or part
4 of such an assessment, a statement of
why that assessment is not appro-
5 priate for the child and how the
child will be assessed;
6 (6) the
projected date for the beginning of the services and modifi-
7 cations described in provision (3),
and the anticipated frequency, location,
8 and duration of those services and
modifications;
9 (7)
(A) Beginning at age 14, and updated annually, a statement
of
10 the transition service needs of the child
under the applicable components
11 of the child's IEP that focuses on the
child's course of study, such as
12 participation in advanced-placement courses
or a vocational education
13 program; (B) beginning at age 16 or
younger, if determined appropriate
14 by the IEP team, a statement of needed
transition services for the child,
15 including, when appropriate, a statement of
the interagency responsibil-
16 ities or any needed linkages; and (C)
beginning at least one year before
17 the child reaches the age of majority under
state law, a statement that
18 the child has been informed of the child's
rights, if any, that will transfer
19 to the child on reaching the age of
majority as provided in section 18;
20 (8) a statement
of: (A) How the child's progress toward the annual
21 goals will be measured; and (B) how the
child's parents will be regularly
22 informed, by such means as periodic report
cards, at least as often as
23 parents of nonexceptional children are
informed of their children's pro-
24 gress, of their child's progress toward the
annual goals; and the extent to
25 which that progress is sufficient to enable
the child to achieve the goals
26 by the end of the year.
27 (c) In developing
each child's IEP, the IEP team shall consider:
28 (1) The strengths
of the child and the concerns of the parents for
29 enhancing the education of their child;
30 (2) the results
of the initial evaluation or most recent evaluation of
31 the child;
32 (3) in the case
of a child whose behavior impedes the child's learning
33 or that of others, strategies, including
positive behavioral interventions
34 and supports to address that behavior;
35 (4) in the case
of a child with limited English proficiency, the lan-
36 guage needs of the child as such needs
relate to the child's IEP;
37 (5) in the case
of a child who is blind or visually impaired, provide
38 for instruction in Braille and the use of
Braille unless the IEP team de-
39 termines, after an evaluation of the
child's reading and writing skills,
40 needs, and appropriate reading and writing
media, including an evalua-
41 tion of the child's future needs for
instruction in Braille or the use of
42 Braille, that instruction in Braille or the
use of Braille is not appropriate
43 for the child;
SB 129--Am. by H
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1 (6) the
communication needs of the child, and in the case of a child
2 who is deaf or hard of hearing,
consider the child's language and com-
3 munication needs, opportunities for
direct communications with peers
4 and professional personnel in the
child's language and communication
5 mode, academic level, and full range
of needs, including opportunities
6 for direct instruction in the child's
language and communication mode;
7 and
8 (7) whether
the child requires assistive technology devices and
9 services.
10 (d) The regular
education teacher of the child, as a member of the
11 IEP team, to the extent appropriate, shall
participate in:
12 (1) The
development of the IEP of the child, including the deter-
13 mination of appropriate positive behavioral
interventions and strategies
14 and the determination of supplementary aids
and services, program mod-
15 ifications, and support for school
personnel consistent with this section;
16 and
17 (2) the review
and revision of the child's IEP under subsection (e).
18 (e) Each agency
shall ensure that the IEP team:
19 (1) Reviews the
child's IEP periodically, but not less than annually to
20 determine whether the annual goals for the
child are being achieved; and
21 (2) revises the
IEP as appropriate to address: (A) Any lack of expected
22 progress toward the annual goals and in the
general curriculum, where
23 appropriate; (B) the results of any
reevaluation conducted under this sec-
24 tion; (C) information about the child
provided to, or by, the parents, as
25 described in subsection (g) of section 11,
and amendments thereto; (D)
26 the child's anticipated needs; or (E) other
matters.
27 Sec.
13. K.S.A. 72-967 is hereby amended to read as follows:
72-967.
28 (a) Each board, in order to comply with the
requirements of K.S.A. 72-
29 933 and 72-966 this
act shall have the authority to:
30
(1) Establish and organize approvable
Provide appropriate special
31 education and related services for
exceptional children within its schools.
32 (2) Provide for
approvable appropriate special education
and related
33 services in the home, in a hospital
or in other facility facilities.
34 (3) Contract with
any another school district for special
education and
35 related services. Before
entering into any such contract, the special ed-
36 ucation services to be provided by
such school district, and the contract
37 therefor, shall be approved by the
commissioner of education upon au-
38 thorization by the state board,
which approval shall be granted if the
39 special education services provided
for in such contract meet standards
40 and criteria set by the state board
in accordance with the state plan. Any
41 such contract may provide for the payment
of tuition and other costs by
42 the contracting school
district in which the child is enrolled.
43 (4) Enter into
cooperative agreements with one or more other school
SB 129--Am. by H
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1 districts for special education
and related services, if such agreements
are
2 approved as provided by this
act.
3
(5) Contract with any accredited private
nonprofit corporation or any
4 public or private institution,
within or without outside the state,
which
5 has proper special education or
related services for exceptional children.
6 Prior to the time any school
district enters into a contract with any private
7 nonprofit corporation or any
public or private institution for the education
8 of any exceptional child the
curriculum provided by such corporation or
9 institution and the contract
shall be approved by the commissioner of
10 education upon authorization by the
state board. Whenever an excep-
11 tional child is educated by a private
nonprofit corporation or a public or
12 private institution as provided
under the provisions of this paragraph,
13 such child shall be considered a pupil of
the school district contracting
14 for such education
hereunder to the same extent as other pupils of
such
15 school district for the purpose of
determining entitlements and partici-
16 pation in all state,
county federal and other financial
assistance or pay-
17 ments to such school district.
18
(6) Provide Furnish transportation for
exceptional children, whether
19 such children are residents or nonresidents
of such school district, to and
20 from for the provision
of special education or related services
attended.
21 In lieu of paying for transportation, the
board of the school district in
22 which an exceptional child resides may pay
all or part of the cost of room
23 and board for such exceptional child at the
place where the special edu-
24 cation or related services
attended are located
provided.
25 (b) Special
education and related services which are provided
by
26 school districts for
exceptional children shall meet standards and criteria
27 set by the state board in
accordance with the state plan and shall be
28 subject to approval by the state board.
29 (c) Any contract
entered into by a board under the provisions of this
30 section shall be subject to change or
termination by the legislature.
31 Sec.
14. K.S.A. 1998 Supp. 72-968 is hereby amended to read as
32 follows: 72-968. (a) The boards of any two
or more school districts within
33 or outside the state may make and enter
into agreements providing for
34 cooperative operation and administration in
providing special education
35 and related services for exceptional
children on a shared-cost basis, sub-
36 ject to the following:
37 (1) An agreement
shall be effective only after approval by the state
38 board, which approval shall be granted if
the special education services
39 provided for in such agreement meet
standards and criteria set by the
40 state board in accordance with the
state plan.
41 (2) (A) The
duration of an agreement shall be perpetual but the
42 agreement may be partially or completely
terminated as hereinafter
43 provided.
SB 129--Am. by H
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1 (B) Partial
termination of an agreement made and entered into by
2 the boards of three or more school
districts may be accomplished only
3 upon petition for withdrawal from the
agreement made by a contracting
4 school district to the other
contracting school districts and approval by
5 the state board of written consent to
the petition by such other school
6 districts or upon order of the state
board after appeal to it by a school
7 district from denial of consent to a
petition for withdrawal and hearing
8 thereon conducted by the state board.
The state board shall consider all
9 the testimony and evidence brought
forth at the hearing and issue an
10 order approving or disapproving withdrawal
by the school district from
11 the agreement.
12 (C) Complete
termination of an agreement made and entered into
13 by the boards of two school districts may
be accomplished upon approval
14 by the state board of a joint petition made
to the state board for termi-
15 nation of the agreement by both of the
contracting school districts after
16 adoption of a resolution to that effect by
each of the contracting school
17 districts or upon petition for withdrawal
from the agreement made by a
18 contracting school district to the other
contracting school district and
19 approval by the state board of written
consent to the petition by such
20 other school district or upon order of the
state board after appeal to it by
21 a school district from denial of consent to
a petition for withdrawal and
22 hearing thereon conducted by the state
board. The state board shall con-
23 sider all the testimony and evidence
brought forth at the hearing and
24 issue an order approving or disapproving
withdrawal by the school district
25 from the agreement.
26 (D) Complete
termination of an agreement made and entered into
27 by the boards of three or more school
districts may be accomplished only
28 upon approval by the state board of a joint
petition made to the state
29 board for termination of the agreement by
not less than 2/3 of the con-
30 tracting school districts after adoption of
a resolution to that effect by
31 each of the contracting school districts
seeking termination of the agree-
32 ment. The state board shall consider the
petition and approve or disap-
33 prove termination of the agreement.
34 (E) The state
board shall take such action in approving or disapprov-
35 ing the complete or partial termination of
an agreement as the state board
36 deems to be in the best interests of the
involved school districts and of
37 the state as a whole in the provision of
special education services for
38 exceptional children. Whenever the state
board has disapproved the com-
39 plete or partial termination of an
agreement, no further action with re-
40 spect to such agreement shall be considered
or taken by the state board
41 for a period of not less than three
years.
42 (3) An agreement
shall designate the sponsoring school district and
43 shall provide for a separate fund thereof,
to which each contracting dis-
SB 129--Am. by H
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1 trict shall pay the moneys due from
it under the agreement. Any school
2 district which is a party to an
agreement may be designated the sponsoring
3 district.
4 (4) An
agreement shall specify the method or methods to be em-
5 ployed for disposing of property upon
partial or complete termination.
6 (5) Within
the limitations provided by law, an agreement may be
7 changed or modified by mutual consent
of the contracting school districts.
8 (6) An
agreement shall be subject to change or termination by the
9 legislature.
10 (b) The
provisions of this section apply to every agreement entered
11 into under authority of this section after
the effective date of this act and
12 to every agreement entered into under this
section prior to the effective
13 date of this act, and extant on the
effective date of this act, regardless of
14 any provisions in such agreement to the
contrary.
15 Sec.
15. K.S.A. 72-970 is hereby amended to read as follows:
72-970.
16 (a) Except as otherwise provided in
subsection (b), every state institution
17 shall provide special education and
related services for all exceptional
18 children housed and maintained in the state
institution and said special
19 education such
services shall meet standards and criteria set by the state
20 board in accordance with the state
plan and shall be subject to approval
21 by the state board. State institutions may
contract with local school dis-
22 tricts and other appropriate agencies or
individuals for special education
23 or related services. Prior to the
time any state institution enters into a
24 contract with any school district
the for special education or related
serv-
25 ices, the services to be
provided by such school district shall be
approved
26 by the state board.
27 (b) In
providing special education or related services to
incarcerated
28 children with disabilities, a
correctional institution shall be exempt from
29 the requirements of this act to the
extent authorized by the federal law.
30 Sec.
16. K.S.A. 72-971 is hereby amended to read as follows:
72-971.
31 (a) In order to obtain data
necessary for review of the progress or lack
32 thereof made in special education
services for exceptional children and
33 to assess future needs for
providing special education services on a more
34 comprehensive, expert, economic and
efficient basis, it shall be the duty
35 of the department to conduct an
annual survey of the school districts
36 showing the total number of
exceptional children within the various cat-
37 egories of exceptionality
in The state board shall prepare and file such
38 reports as are required by the federal
law or this act.
39 (b) The
state crippled children's commission School
districts and
40 other state agencies
having census data on exceptional children shall
from
41 time to time as requested
furnish such data, as requested, to the
depart-
42 ment state
board.
43 New Sec.
17. (a) The rights of parents of exceptional children
shall
SB 129--Am. by H
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1 include, but not be limited to, the
rights specified in this section.
2 (b) The
parents of exceptional children shall have the right to:
3 (1) Examine
all records relating to such child and to participate in
4 meetings with respect to the
identification, evaluation, and educational
5 placement of the child, and the
provision of a free appropriate public
6 education to such child, and to
obtain an independent educational eval-
7 uation of the child;
8 (2) written
prior notice in accordance with section 19, and
amend-
9 ments thereto, whenever
an agency: (A) Proposes to initiate or change;
10 or (B) refuses to initiate or change, the
identification, evaluation, or ed-
11 ucational placement of the child,
in accordance with subsection (c), or
12 the provision of a free appropriate public
education to the child;
13 (3) receive the
notice required by provision (2) in their native lan-
14 guage, unless it clearly is not feasible to
do so;
15 (4) present
complaints with respect to any matter relating to the iden-
16 tification, evaluation, or educational
placement of the child, or the pro-
17 vision of a free appropriate public
education to the child, subject to the
18 requirements that the parent, or the
attorney representing the parent or
19 child, provides notice to the agency that
includes: (A) The name of the
20 child, the address of the residence of the
child, and the name of the school
21 the child is attending; (B) a description
of the nature of the problem of
22 the child relating to such proposed
initiation or change, including facts
23 relating to such problem; and (C) a
proposed resolution of the problem
24 to the extent known and available to the
parents at the time;
25 (5) request
mediation in accordance with this act;
26 (6) consent, or
refuse to consent, to the evaluation, reevaluation or
27 the initial placement of their child and to
any substantial change in place-
28 ment of, or a material change in
services for, their child, unless a
29 change in placement of their child is
ordered pursuant to the provisions
30 of section 30, and amendments thereto, or
the agency can demonstrate
31 that it has taken reasonable measures to
obtain parental consent to a
32 change in placement or
services, and the child's parent has failed to
33 respond. If the parent fails to respond to
the request for parental consent
34 to a substantial change in placement
or a material change in services,
35 the agency must maintain detailed records
of written and verbal contacts
36 with the parent and the response, if any,
received from the parent;
37 (7) be members of
any group that makes decisions on the educational
38 placement of their child;
39 (8) demand that
their child remain in the child's current educational
40 placement pending the outcome of a due
process hearing, except as oth-
41 erwise provided by federal law and this
act;
42 (9) request a due
process hearing in regard to any complaint filed in
43 accordance with provision (4) of this
subsection, or as authorized in sec-
SB 129--Am. by H
20
1 tion 31, and amendments thereto;
2 (10) appeal
to the state board any adverse decision rendered by a
3 hearing officer in a local due
process hearing;
4 (11) appeal
to state or federal court any adverse decision rendered
5 by a review officer in a state-level
due process appeal; and
6
(12) recover attorney fees, as provided in the federal law, if
they are
7 the prevailing parties in a due
process hearing or court action; however,
8 only a court shall have the authority
to award attorney fees, and such fees
9 may be reduced or denied in
accordance with federal law.
10 (c) The state
board shall develop a model form to assist parents in
11 filing a complaint in accordance with
subsection (b)(4).
12 (d) The state
board shall develop, and thereafter amend as necessary,
13 and distribute for use by agencies, a list
of the rights available to the
14 parents of exceptional children under the
federal law and this act. The
15 list shall be made available in various
languages and be written so as to
16 be easily understandable by parents.
17 (e) A list of the
rights available to the parents of exceptional children
18 shall be given to the parents, at a
minimum: (A) Upon initial referral for
19 evaluation and upon reevaluation of the
child; (B) upon each notification
20 of an individualized education program
meeting; and (C) upon registra-
21 tion of a complaint under subsection
(b)(4).
22 New Sec.
18. When a person who has been determined to be a child
23 with a disability reaches the age of 18,
except for such a person who has
24 been determined to be incompetent under
state law:
25 (a) An agency
shall provide to both the person and to the person's
26 parents any notice required by this
act;
27 (b) all other
rights accorded to parents under this act transfer to the
28 person;
29 (c) the agency
shall notify the person and the parents of the transfer
30 of rights; and
31 (d) all rights
accorded to parents under this act transfer to the person
32 if incarcerated in an adult or juvenile
federal, state or local correctional
33 institution.
34 New Sec.
19. The notice required by subsection (b)(2) of section
17,
35 and amendments thereto, shall include:
36 (a) A description
of the action proposed or refused by the agency;
37 (b) an
explanation of why the agency proposes or refuses to take the
38 action;
39 (c) a description
of any other options that the agency considered and
40 the reasons those options were
rejected;
41 (d) a description
of each evaluation procedure, test, record, or report
42 the agency used as a basis for the proposed
or refused action;
43 (e) a description
of any other factors that are relevant to the agency's
SB 129--Am. by H
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1 proposal or refusal;
2 (f) a
statement that the parents have protection under the procedural
3 safeguards of this act and, if the
notice is not an initial referral for eval-
4 uation, the means by which a copy of
the procedural safeguards can be
5 obtained; and
6 (g) sources
for parents to contact to obtain assistance in understand-
7 ing the provisions of the federal law
and this act.
8 Sec.
20. K.S.A. 72-973 is hereby amended to read as follows:
72-973.
9 (a) The Any due
process hearing provided for in K.S.A. 72-972,
and
10 amendments thereto,
under this act, shall be held at a time and place
11 reasonably convenient to the lawful
custodian parent of the involved child,
12 shall be a closed hearing unless the
lawful custodian parent requests an
13 open hearing, and shall be conducted in
accordance with rules and reg-
14 ulations relating thereto adopted by the
agency. Such rules and regula-
15 tions shall afford procedural due process,
including the following:
16 (1) The right of
the parties to have counsel or an advisor of their own
17 choice present and to receive the advice of
such counsel or other advisor
18 whom they may select;
19 (2) the right of
the child and the lawful custodian parent
of the child
20 to be present at the hearing;
21 (3) the right of
the child, the lawful custodian parent of
the child and
22 their counsel or advisor to hear or read a
full report of the testimony of
23 witnesses responsible for recommending the
proposed action and of any
24 other material witnesses;
25 (4) the right
of the parties and their counsel or advisor to
confront
26 and cross-examine witnesses who appear in
person at the hearing, either
27 voluntarily or as a result of the issuance
of a subpoena;
28 (5) the right of
the parties to present witnesses in person or their
29 testimony by affidavit, including expert
medical, psychological or educa-
30 tional testimony;
31 (6) the right of
the child and the lawful custodian parent,
on behalf
32 of the child, to testify and give reasons
in opposition to the proposed
33 action;
34 (7) the right of
the parties to prohibit the presentation of any evi-
35 dence at the hearing which has not been
disclosed to the opposite party
36 at least five days prior to the hearing,
including any evaluations completed
37 by that date and any recommendations
based on such evaluations;
38 (8) the right of
the parties to have an orderly hearing;
39 (9) the right of
the child to a fair and impartial decision based on
40 substantial evidence; and
41 (10) the right of
the parties to have a written or, at the option of the
42 parent, an electronic, verbatim
record of the hearing made by mechanical
43 or electronic recording or by an
official court reporter.
SB 129--Am. by H
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1
(b) The Each due process hearing,
other than an expedited hearing
2 under section 31 or section 32,
and amendments thereto, shall be held
3 not later than 30 days from the date
on which the request therefor is
4 received or, if no request is
received, not later than 30 days from the date
5 by which the request should
have been made, or on which objection, or
6 revocation of consent, to the
proposed action is received by the agency.
7 The child and the lawful
custodian parent of the child shall be notified
8 in writing of the time and place of
the hearing at least five days prior
9 thereto. At any reasonable time prior
to the hearing, the lawful custodian
10 parent and the counsel or advisor of
the involved child shall be given
11 access to all records, tests, reports or
clinical evaluations relating to the
12 proposed action.
13 (c)
(1) Except as otherwise provided in section 32, and
amendments
14 thereto, during the pendency of any
proceedings conducted under this
15 act, unless the agency and parent
otherwise agree, the child shall remain
16 in the then-current educational
placement of such child.
17 (2) If
proceedings arise in connection with the initial admission of
the
18 child to school, the child shall be
placed in the appropriate regular edu-
19 cation classroom or program in
compliance with K.S.A. 72-1111, and
20 amendments thereto, unless otherwise
directed pursuant to section 30,
21 and amendments thereto.
22 (c)
(d) Subject to the provisions of K.S.A. 72-973a,
and amendments
23 thereto, the agency shall appoint a hearing
officer for the purpose of
24 conducting the hearing. Members of the
state board, the secretary of
25 social and rehabilitation services, the
secretary of corrections, the com-
26 missioner of the juvenile justice
authority, and members of any board or
27 agency involved in the education of
the child shall not serve as hearing
28 officers. No hearing officer shall be any
person (1) responsible for rec-
29 ommending the proposed action upon which
the hearing is based, (2) any
30 person having a personal or
professional interest which would conflict
31 with objectivity in the hearing, or
(3) any person who is an employee of
32 the state board or any agency involved in
the education of the child. A
33 person shall not be considered an employee
of the agency solely because
34 the person is paid by the agency to serve
as a hearing officer. Each agency
35 shall maintain a list of hearing officers.
Such list shall include a statement
36 of the qualifications of each hearing
officer. Each hearing officer and each
37 state review officer shall be
qualified in accordance with standards and
38 requirements established by the state board
and shall have satisfactorily
39 completed a training program conducted or
approved by the state board.
40 Whenever a hearing officer conducts any
hearing, such hearing officer
41 shall render a decision on the matter,
including findings of fact and con-
42 clusions, not later than 10 days
after the conclusion close of the
hearing
43 and shall prepare a.
The decision shall be written report thereon to
the
SB 129--Am. by H
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1 agency providing for the
hearing or, at the option of the parent, shall
be
2 an electronic decision. Any
action of the hearing officer in accordance
3 with this subsection shall be final,
subject to appeal and review in ac-
4 cordance with K.S.A. 72-974,
and amendments thereto this act.
5 Sec.
21. K.S.A. 72-973a is hereby amended to read as follows:
72-
6 973a. Prior to appointing any hearing
officer to conduct a due process
7 hearing provided for in
K.S.A. 72-972, and amendments thereto under
8 this act, the agency shall
make its list of hearing officers available to the
9 lawful custodian
parent of the involved child and shall inform the
lawful
10 custodian parent of
the right to request disqualification of any or all of
11 the hearing officers on the list and to
request the state board to appoint
12 a hearing officer in accordance with the
procedure provided in this sub-
13 section. If the lawful
custodian parent does not request
disqualification
14 of all of the hearing
officers give written notice of disqualification to
the
15 agency within five days after the parent
receives the list, the agency may
16 appoint from its list any hearing officer
whom the lawful custodian parent
17 has not requested to be disqualified. If
the lawful custodian parent re-
18 quests disqualification of all of the
hearing officers and requests the ap-
19 pointment of a hearing officer by the state
board, the agency shall im-
20 mediately notify the state board and shall
request the state board to
21 provide a list of the names and
qualifications of five prospective hearing
22 officers. The agency and the lawful
custodian of the involved child may
23 each remove two names from the
list. The agency shall inform the state
24 board of the name or names
remaining on the list and the state board
25 shall appoint a hearing
officer therefrom.
26 Sec.
22. K.S.A. 1998 Supp. 72-974 is hereby amended to read as
27 follows: 72-974. (a) Written notice of the
result of any hearing provided
28 for under K.S.A. 72-972, and
amendments thereto, this act shall be given
29 to the agency providing for the hearing and
shall be sent by restricted
30 certified mail to the affected child
or the lawful custodian parent, counsel
31 or advisor of the child within 24 hours
after the result is determined. Such
32 decision, after deletion of any personally
identifiable information con-
33 tained therein, shall also
be transmitted to the state board which shall
34 make the decision available to the
state advisory council for special edu-
35 cation and to the public upon
request.
36 (b) (1) Any
party to a due process hearing provided for under
K.S.A.
37 72-972, and amendments
thereto, this act may appeal the decision to
the
38 state board by filing a written notice of
appeal with the commissioner of
39 education not later than 30 calendar days
after receiving the date of the
40 postmark on the written notice
specified in subsection (a). Any such hear-
41 ing and decision therein shall be
reviewed by a reviewing A review officer
42 appointed by the state
board, shall conduct an impartial review of
the
43 decision. The review officer shall
render a decision not later than 20 cal-
SB 129--Am. by H
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1 endar days after the notice of appeal
is filed. The reviewing review officer
2 shall: (A) Examine the record of the
hearing; (B) determine whether the
3 procedures at the hearing were in
accordance with the requirements of
4 due process; (C) afford the parties
an opportunity for oral or written
5 argument, or both, at the discretion
of the reviewing review officer; (D)
6 seek additional evidence if
necessary; (E) render a an independent
deci-
7 sion on any such appeal not later
than five days after completion of the
8 review; and (F) send written
notice of the decision on any such appeal to
9 the parties and to the state
board.
10 (2) For the
purpose of reviewing any hearing and decision under
11 provision (1), the state board may appoint
one or more reviewing review
12 officers. Any such appointment may apply to
a review of a particular
13 hearing or to reviewing a set or class of
hearings as specified by the state
14 board in making the appointment.
Whenever a reviewing officer ap-
15 pointed under authority of this
subsection conducts any review, the re-
16 viewing officer shall decide the
matter by affirming, reversing or modi-
17 fying the decision from which the
appeal was taken and shall prepare a
18 written report thereon to the state
board.
19 (c) Any action of
a reviewing review officer pursuant to this
section
20 is subject to review in accordance with the
act for judicial review and civil
21 enforcement of agency actions or to an
action in federal court as allowed
22 by the federal law.
23 (d) Any action
in federal court shall be filed within 30 days after
24 service of the review officer's
decision.
25 Sec.
23. K.S.A. 72-975 is hereby amended to read as follows:
72-975.
26 (a) Any person conducting a hearing or
review under article 9 of chapter
27 72 of Kansas Statutes
Annotated this act may administer oaths for the
28 purpose of taking testimony therein.
29 (b) Any person
conducting a hearing or review under article 9
of
30 chapter 72 of Kansas Statutes
Annotated this act or any party to any such
31 hearing or review may request the clerk of
the district court to issue
32 subpoenas for the attendance and testimony
of witnesses and the pro-
33 duction of all relevant records, tests,
reports and evaluations in the same
34 manner provided for the issuance of
subpoenas in civil actions pursuant
35 to K.S.A. 60-245, and amendments
thereto.
36 (c) Any person
conducting a hearing or review under article 9
of
37 chapter 72 of Kansas Statutes
Annotated this act, at the request of either
38 party, may grant specific extensions of
time beyond the limitations spec-
39 ified in K.S.A. 72-973 and 72-974,
and amendments thereto this act.
40 (d) Any person
conducting a hearing under this act shall consider any
41 request for discovery in accordance with
the provisions of K.S.A. 77-522,
42 and amendments thereto, except that
depositions of witnesses who will be
43 available for the hearing shall not be
allowed.
SB 129--Am. by H
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1
(d) (e) Every hearing and review under
article 9 of chapter 72 of
2 Kansas Statutes
Annotated this act shall be provided for at no cost
to the
3 child or the lawful
custodian parent of the child. The costs of any
hearing
4 provided for by a board shall be paid
by the school district.
5
(e) (f) Any reviewing
review officer conducting a review under
sub-
6 section (b) of K.S.A. 72-974,
and amendments thereto, this act may hold
7 a hearing to receive additional
evidence. Every such hearing shall be
8 conducted in accordance with
requirements which are consonant with
9 the requirements of
subsection (a) of K.S.A. 72-973, and
amendments
10 thereto this
act.
11 (f) No
action described in subsection (a) of K.S.A. 72-972,
and
12 amendments thereto, shall be taken
during the pendency of any pro-
13 ceedings conducted pursuant to the
provisions of K.S.A. 72-972 to 72-
14 975, inclusive, and amendments
thereto, except that the proposed action
15 may be taken before all such
proceedings have been completed if the
16 lawful custodian of the involved
child gives written consent thereto.
17 Sec.
24. K.S.A. 72-976 is hereby amended to read as follows:
72-976.
18 A (a) Each school
district shall not be required, to
keep an exceptional
19 child in regular school programs or
to provide such exceptional child with
20 special education services for
exceptional children when it is determined
21 pursuant to the provisions of
K.S.A. 72-972 to 72-975, inclusive, and
22 amendments thereto, that the
education of such child cannot be satisfac-
23 torily achieved thereby and that
such child requires housing, maintenance
24 and special education services
provided at a state institution the maximum
25 extent appropriate, to educate children
with disabilities with children who
26 are not disabled, and to provide special
classes, separate schooling or for
27 the removal of children with
disabilities from the regular education en-
28 vironment only when the nature or
severity of the disability of the child
29 is such that education in regular
classes with supplementary aids and
30 services cannot be achieved
satisfactorily.
31
(b) Nothing in this section shall be construed to
authorize the state
32 board or any board to function as an
admitting agency to the state insti-
33 tutions or to limit or supersede or in any
manner affect the requirements
34 of each board to comply with the provisions
of K.S.A. 72-933 and 72-966,
35 and amendments thereto, to provide special
education services for each
36 exceptional child in the school district
unless and until such child meets
37 the criteria for admission to a state
institution and is so admitted by the
38 state institution. Each state institution
shall publish annually the criteria
39 for admission to such state institution and
shall furnish such criteria to
40 each board upon request therefor.
41 Sec.
25. K.S.A. 72-977 is hereby amended to read as follows:
72-977.
42 (a) Except as otherwise provided in this
section, when a school district or
43 a state institution provides
special education services for exceptional chil-
SB 129--Am. by H
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1 dren as required by this act,
and a determination has been made as pro-
2 vided in K.S.A. 72-972 to
72-975, inclusive, and amendments thereto,
3 that a child is an
exceptional child and special education services are
4 necessary for such
child, it shall be the duty of the lawful
custodian parent
5 of such each
exceptional child to require such child to enroll for
and
6 attend school to receive the
special education and related services which
7 are indicated by such
determination on the child's IEP or to provide
for
8 such services privately.
9 (b) The
provisions of subsection (a) do not apply to gifted children
10 or to lawful custodians
parents of gifted children.
11 Sec.
26. K.S.A. 1998 Supp. 72-978 is hereby amended to read as
12 follows: 72-978. (a) (1) In each school
year, in accordance with appropri-
13 ations for special education and
related services provided under this act,
14 each school district which has provided
special education and related
15 services in compliance with the
requirements of the state plan and the
16 provisions of this act shall be entitled to
receive:
17 (A) Reimbursement
for actual travel allowances paid to special teach-
18 ers at not to exceed the rate specified
under K.S.A. 75-3203, and amend-
19 ments thereto, for each mile actually
traveled during the school year in
20 connection with duties in providing special
education or related services
21 for exceptional children; such
reimbursement shall be computed by the
22 state board by ascertaining the actual
travel allowances paid to special
23 teachers by the school district for the
school year and shall be in an
24 amount equal to 80% of such actual travel
allowances;
25 (B) reimbursement
in an amount equal to 80% of the actual travel
26 expenses incurred for providing
transportation for exceptional children to
27 special education or related
services; such reimbursement shall not be
28 paid if such child has been counted in
determining the transportation
29 weighting of the district under the
provisions of the school district finance
30 and quality performance act;
31 (C) reimbursement
in an amount equal to 80% of the actual expenses
32 incurred for the maintenance of an
exceptional child at some place other
33 than the residence of such child for the
purpose of providing special
34 education or related services; such
reimbursement shall not exceed $600
35 per exceptional child per school year;
and
36 (D) after
subtracting the amounts of reimbursement under (A), (B)
37 and (C) from the total amount appropriated
for special education and
38 related services under this act, an
amount which bears the same propor-
39 tion to the remaining amount appropriated
as the number of full-time
40 equivalent special teachers who are
qualified to provide special education
41 or related services to exceptional
children and are employed by the school
42 district for approved special education
or related services bears to the
43 total number of such qualified
full-time equivalent special teachers em-
SB 129--Am. by H
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1 ployed by all school districts for
approved special education or related
2 services.
3 (2) Each
special teacher who is a paraprofessional
qualified to assist
4 in the provision of special
education or related services to exceptional
5 children shall be counted as
2/5 full-time equivalent special teacher who
6 is qualified to provide special
education or related services to exceptional
7 children.
8 (b)
(1) No special teacher in excess of the number of
special teachers
9 necessary to comply with the
ratio of special teacher to exceptional chil-
10 dren prescribed by the state board
for the school district shall be counted
11 in making computations under this
section.
12
(2) No time spent by a special teacher in connection
with duties per-
13 formed under a contract entered into by the
Atchison juvenile correc-
14 tional facility, the Beloit
juvenile correctional facility, the Larned juvenile
15 correctional facility or the Topeka
juvenile correctional facility and a At-
16 chison juvenile correctional
facility, the Beloit juvenile correctional
17 facility, the Larned juvenile
correctional facility, or the Topeka cor-
18 rectional facility and a
school district with a state institution
for the
19 provision of special education services by
such state institution shall be
20 counted in making computations under 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: (1)
SB 129--Am. by H
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1 Give technical advice and assistance
to any board agency in connection
2 with the establishment and
maintenance of programs of screening, di-
3 agnosis and certification
of special education and related services for
ex-
4 ceptional children; (2) make
recommendations to any board agency
con-
5 cerning appropriate special education
or related services for to be
6 provided to exceptional
children; and (3) consider and give advice to any
7 board agency
concerning problems encountered by such board
agency in
8 complying with the requirements of
K.S.A. 72-933 and 72-966 this act.
9 Sec.
29. K.S.A. 1998 Supp. 72-983 is hereby amended to read as
10 follows: 72-983. (a) In each school year,
commencing with the 1994-95
11 school year, to the extent
that appropriations are available, each school
12 district which has provided special
education or related services for an
13 exceptional child who uniquely or
so severely differs from other excep-
14 tional children in physical,
mental, social, emotional or educational char-
15 acteristics that the costs
attributable to the provision of special education
16 services for the child are
whose IEP provides for services which cost in
17 excess of $25,000 for the school year is
eligible to receive a grant of state
18 moneys in an amount equal to 75% of that
portion of the costs, incurred
19 by the district in the provision of special
education or related services for
20 the child, that is in excess of
$25,000.
21 (b) In order to
be eligible for a grant of state moneys provided for by
22 subsection (a), a school district shall
submit to the state board of education
23 an application for a grant
and, a description of the special education
or
24 related services provided,
and the name or names of the child or children
25 for whom provided. The application and
description shall be prepared in
26 such form and manner as the state board
shall require and shall be sub-
27 mitted at a time to be determined and
specified by the state board. Ap-
28 proval by the state board of applications
for grants of state moneys is
29 prerequisite to the award of grants.
30 (c) Each school
district which is awarded a grant under this section
31 shall make such periodic and special
reports of statistical and financial
32 information to the state board as it may
request.
33 (d) All moneys
received by a school district under authority of this
34 section shall be deposited in the special
education fund of the school
35 district. Amounts received under this
section and deposited in the special
36 education fund shall be used exclusively to
reimburse the school district,
37 in part, for the excessive
amount expended in providing special education
38 or related services for
uniquely or severely different the
exceptional child
39 or children whose name or names
were provided under subsection (b).
40 (e) The state
board of education shall:
41 (1) Prescribe and
adopt criteria for identification of uniquely or
se-
42 verely different exceptional
children and for determination of
excessive
43 costs attributable to the provision of
special education and related services
SB 129--Am. by H
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1 for such children
which an application for a grant of state moneys may
2 be made under this
section;
3 (2) approve
applications of school districts for grants;
4
(3) determine the amount of grants and be responsible for
payment
5 of such grants to school districts;
and
6
(4) prescribe all forms necessary for reporting under this
section.
7 (f) If the
amount of appropriations for the payment of grants under
8 this section is insufficient to pay
in full the amount each school district is
9 determined to be eligible to receive
for the school year, the state board
10 shall prorate the amount appropriated among
all school districts which
11 are eligible to receive grants of state
moneys in proportion to the amount
12 each school district is determined to be
eligible to receive.
13 New Sec.
30. (a) School personnel may order a change in the place-
14 ment of a child with a disability:
15 (1) To an
appropriate interim alternative educational setting or other
16 setting, or the short-term suspension of
the child; or
17 (2) to an
appropriate interim alternative educational setting for not
18 more than 45 calendar days if: (A) The
child carries a weapon to school
19 or to a school function under the
jurisdiction of the agency; or (B) the
20 child knowingly possesses or uses illegal
drugs or sells or solicits the sale
21 of a controlled substance while at school
or a school function under the
22 jurisdiction of the agency.
23 (b) The
alternative educational setting described in subsection (a)(2)
24 shall be determined by the IEP team.
25 (c) Either
before, or not later than 10 days after, taking a disciplinary
26 action as described in subsection (a):
27 (1) If the agency
did not conduct a functional behavioral assessment
28 and implement a behavioral intervention
plan for such child before the
29 behavior that resulted in the disciplinary
action, the agency shall convene
30 an IEP meeting to develop an intervention
plan to address that behavior;
31 or
32 (2) if the child
already has a behavioral intervention plan, the IEP
33 team shall review the plan and modify it,
as necessary, to address the
34 behavior.
35 (d) A hearing
officer who meets the qualifications specified in this
36 act may order a change in the placement of
a child with a disability to an
37 appropriate interim alternative educational
setting for not more than 45
38 calendar days if the hearing officer:
39 (1) Determines
that the agency has demonstrated, by substantial ev-
40 idence, that maintaining the current
placement of such child is substan-
41 tially likely to result in injury to the
child or to others;
42 (2) considers the
appropriateness of the child's current placement;
43 (3) considers
whether the agency has made reasonable efforts to min-
SB 129--Am. by H
30
1 imize the risk of harm in the child's
current placement, including the use
2 of supplementary aids and services;
and
3
(4) determines that the interim alternative educational
setting meets
4 the requirements of subsection
(e).
5 (e) Any
interim alternative educational setting in which a child is
6 placed under this section shall:
7 (1) Be
selected so as to enable the child to continue to participate
in
8 the general curriculum, although in
another setting, and to continue to
9 receive those services and
modifications, including those described in the
10 child's current IEP, that will enable the
child to meet the goals set out
11 in the IEP; and
12 (2) include
services and modifications designed to address the be-
13 havior so that it does not recur.
14 (f) If a
disciplinary action is contemplated as described in subsection
15 (a) for a behavior of a child with a
disability, or if a disciplinary action
16 involving a change of placement for more
than 10 school days is contem-
17 plated for a child with a disability who
has engaged in other behavior that
18 violated any rule or code of conduct of the
agency that applies to all
19 children:
20 (1) Not later
than the date on which the decision to take that action
21 is made, the parents shall be notified of
that decision and of all procedural
22 safeguards afforded under section 31;
and
23 (2) immediately,
if possible, but in no case later than 10 school days
24 after the date on which the decision to
take that action is made, a review,
25 as specified in subsection (g), shall be
conducted of the relationship be-
26 tween the child's disability and the
behavior subject to the disciplinary
27 action.
28 (g) Any review
described in subsection (f)(2) shall be conducted by
29 the child's IEP team and other qualified
personnel. In carrying out such
30 a review, the IEP team may determine that
the behavior of the child was
31 not a manifestation of such child's
disability only if the IEP team:
32 (1) First
considers, in terms of the behavior subject to disciplinary
33 action, all relevant information,
including: (A) evaluation and diagnostic
34 results, including such results or other
relevant information supplied by
35 the parents of the child; (B) observations
of the child; and (C) the child's
36 IEP and placement; and
37 (2) then
determines that: (A) In relationship to the behavior subject
38 to disciplinary action, the child's IEP and
placement were appropriate
39 and the special education services,
supplementary aids and services, and
40 behavior intervention strategies were
provided consistent with the child's
41 IEP and placement; (B) the child's
disability did not impair the ability of
42 the child to understand the impact and
consequences of the behavior
43 subject to disciplinary action; and (C) the
child's disability did not impair
SB 129--Am. by H
31
1 the ability of the child to control
the behavior subject to disciplinary
2 action.
3 (h)
(1) If the result of the review under subsection (g) is a
determi-
4 nation that the behavior of the child
was not a manifestation of the child's
5 disability, the relevant disciplinary
procedures applicable to children with-
6 out disabilities may be applied to
the child in the same manner in which
7 they would be applied to children
without disabilities, except that an ap-
8 propriate public education must
continue to be provided to the child
9 during the period of disciplinary
action.
10 (2) If the agency
initiates disciplinary procedure applicable to all chil-
11 dren, the agency shall ensure that the
special education and disciplinary
12 records of the child are transmitted for
consideration by the person or
13 persons making the final determination
regarding the disciplinary action.
14 (i) For purposes
of this section, the following definitions apply:
15 (1) "Controlled
substance" means a drug or other substance identi-
16 fied under schedules I, II, III, IV, or V
in 21 U.S.C. 812(c);
17 (2) "illegal
drug" means a controlled substance but does not include
18 such a substance that is legally possessed
or used under the supervision
19 of a licensed health-care professional or
that is legally possessed or used
20 under any other authority under any federal
or state law;
21 (3) "substantial
evidence" means beyond a preponderance of the
22 evidence;
23 (4) "weapon"
means a weapon, device, instrument, material, or sub-
24 stance, animate or inanimate, that is used
for, or is readily capable of,
25 causing death or serious bodily injury,
except that such term does not
26 include a pocket knife with a blade of less
than 21/2 inches in length.
27 New Sec.
31. (a) (1) If a child's parent disagrees with a
determination
28 under section 30, and amendments thereto,
that the child's behavior was
29 not a manifestation of the child's
disability or with any decision regarding
30 placement under that section, the parent
may request a due process
31 hearing.
32 (2) The agency
shall arrange for an expedited hearing in any case
33 described in this section when requested by
a parent.
34 (b) (1) In
reviewing a decision with respect to the manifestation de-
35 termination, the hearing officer shall
determine whether the agency has
36 demonstrated that the child's behavior was
not a manifestation of such
37 child's disability consistent with the
requirements of subsection (g) of
38 section 30, and amendments thereto.
39 (2) In reviewing
a decision under subsection (a)(2) of section 30, and
40 amendments thereto, to place the child in
an interim alternative educa-
41 tional setting, the hearing officer shall
apply the standards set out in sub-
42 section (d) of section 30, and amendments
thereto.
43 (c) Any hearing
provided for in section 30 or in this section shall be
SB 129--Am. by H
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1 conducted:
2 (1) By a
due process hearing officer appointed by the state board;
3 and
4 (2) in
accordance with rules and regulations adopted by the state
5 board.
6 New Sec.
32. (a) If a parent requests a hearing under section 31,
and
7 amendments thereto, the child shall
remain in the interim alternative
8 educational setting pending the
decision of the hearing officer in regard
9 to the manifestation determination or
the interim placement decision, or
10 until the expiration of the 45-day time
period described in subsection
11 (a)(2) of section 30, and amendments
thereto, whichever occurs first,
12 unless the parent and the agency agree
otherwise.
13 (b) Except as
provided in subsection (c), if a child is placed in an
14 interim alternative educational setting
pursuant to section 30, and amend-
15 ments thereto, and school personnel propose
to change the child's place-
16 ment after expiration of the interim
alternative placement, during the
17 pendency of any proceeding to challenge the
proposed change in place-
18 ment, the agency shall return the child to
the child's placement prior to
19 the interim alternative educational
setting.
20 (c) (1) If
the agency maintains that it is dangerous for the child to be
21 returned to the child's placement prior to
removal to the interim alter-
22 native education setting during the
pendency of due process proceedings,
23 the agency may request an expedited hearing
in regard to the proposed
24 change in placement.
25 (2) In
determining whether the child may be placed in the alternative
26 education setting or in another appropriate
placement ordered by the
27 hearing officer, the hearing officer shall
apply the standards set out in
28 subsection (d) of section 30, and
amendments thereto.
29 New Sec.
33. (a) A child who has not been determined to be eligible
30 for special education and related services
under this act and who has
31 engaged in behavior that violated any rule
or code of conduct of the school
32 district, including any behavior described
in section 30 and amendments
33 thereto, may assert any of the protections
provided for in this act if the
34 school district had knowledge, as
determined in accordance with this sec-
35 tion, that the child was a child with a
disability before the behavior that
36 precipitated the disciplinary action
occurred.
37 (b) A school
district shall be deemed to have knowledge that a child
38 is a child with a disability if:
39 (1) The parent of
the child has expressed concern in writing, unless
40 the parent is illiterate or has a
disability that prevents compliance with
41 the requirements contained in this
subsection, to personnel of the appro-
42 priate educational agency that the child is
in need of special education
43 and related services;
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1 (2) the
behavior or performance of the child demonstrates the need
2 for such services;
3 (3) the
parent of the child previously has requested an evaluation of
4 the child; or
5 (4) the
teacher of the child, or other personnel of the school
district,
6 previously has expressed concern
about the behavior or performance of
7 the child to the director of special
education of such school district or to
8 other personnel of the district.
9 (c)
(1) Subject to provision (2) of this subsection, if a school
district
10 does not have knowledge that a child is a
child with a disability prior to
11 taking disciplinary action against the
child, the child may be subjected to
12 the same disciplinary action as is applied
to children without disabilities
13 who engage in comparable behaviors.
14 (2) If a request
is made for an evaluation of a child during the time
15 period in which the child is subjected to
disciplinary action described by
16 this act, an evaluation shall be conducted
in an expedited manner. If the
17 child is determined to be a child with a
disability, taking into consideration
18 information from the evaluation conducted
by the school district and in-
19 formation provided by the parents, the
school district shall provide special
20 education and related services in
accordance with the provisions of this
21 act, except that, pending the results of
the evaluation, the child shall
22 remain in the educational placement
determined by school authorities,
23 which may be long-term suspension or
expulsion from school.
24 New Sec.
34. (a) Nothing in this act shall be construed to prohibit
25 an agency from reporting a crime committed
by a child with a disability
26 to appropriate authorities or to prevent
state or local law enforcement
27 and judicial authorities from exercising
their responsibilities with regard
28 to the application of federal, state, or
local law to crimes committed by a
29 child with a disability.
30 (b) An agency
reporting a crime committed by a child with a disability
31 shall ensure that copies of the special
education and disciplinary records
32 of the child are transmitted for
consideration by the appropriate author-
33 ities to whom it reports the crime.
34 New Sec.
35. (a) The state board shall establish and implement pro-
35 cedures to allow agencies and parents to
resolve disputes through a me-
36 diation process which, at a minimum, shall
be available whenever a due
37 process hearing is requested under this
act.
38 (b) The
procedures adopted shall ensure that the mediation process
39 is:
40 (1) Voluntary on
the part of the parties;
41 (2) not used to
deny or delay a parent's right to a due process hearing,
42 or to deny any other rights afforded under
this act; and
43 (3) conducted by
a qualified and impartial mediator who is trained in
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1 effective mediation techniques.
2 (c) The
state board shall maintain a list of individuals who are qual-
3 ified mediators and knowledgeable in
laws and regulations relating to the
4 provision of special education and
related services and shall establish pro-
5 cedures for the appointment of a
mediator to help resolve disputes be-
6 tween the parties.
7 (d) The
state board shall bear the cost of the mediation process de-
8 scribed in this section.
9 (e) Each
session in the mediation process shall be scheduled in a
10 timely manner and shall be held in a
location that is convenient to the
11 parties to the dispute.
12 (f) An agreement
reached by the parties to the dispute in the medi-
13 ation process shall be set forth in a
written mediation agreement.
14 (g) Discussions
that occur during the mediation process shall be con-
15 fidential and may not be used as evidence
in any subsequent due process
16 hearings or civil proceedings and the
parties to the mediation process
17 may be required to sign a confidentiality
pledge prior to the commence-
18 ment of such process.
19 Sec.
36. K.S.A. 38-1513a is hereby amended to read as follows:
38-
20 1513a. (a) When the court has granted legal
custody of a child in a hearing
21 under the Kansas code for care of children
to an agency, association or
22 individual, the custodian or an agent
designated by the custodian shall
23 have authority to make educational
decisions for the child if the parents
24 of the child are unknown or unavailable.
When the custodian of the child
25 is the secretary, and the parents of the
child are unknown or unavailable,
26 and the child appears to be an exceptional
child who requires special
27 education services, the
secretary shall immediately notify the state board
28 of education, or a designee of the state
board, and the school district in
29 which the child is residing that the child
is in need of an education ad-
30 vocate. As soon as possible after
notification by the secretary of the need
31 by a child of an education advocate, the
state board of education, or its
32 designee, shall appoint an education
advocate for the child.
33 (b) As used in
this section, the terms exceptional child, special edu-
34 cation services, and
education advocate have the meanings respectively
35 ascribed thereto in the special education
for exceptional children act.
36 Sec.
37. K.S.A. 1998 Supp. 72-53,109 is hereby amended to read
as
37 follows: 72-53,109. (a) Subject to the
provisions of subsection (b), no
38 school district shall be required to
provide any person, who is 16 years of
39 age or older, has been prosecuted as an
adult, convicted of a crime, and
40 incarcerated in a county jail or state
correctional institution, with an op-
41 portunity to attend school at a school
facility operated by the school dis-
42 trict for the period of time the person is
incarcerated, nor shall any school
43 district be required to provide any such
person with educational services
SB 129--Am. by H
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1 at the county jail or state
correctional institution in which the person is
2 incarcerated.
3 (b) The
provisions of subsection (a) do not apply to any person who
4 is under 21 years of age and who,
immediately prior to conviction and
5 incarceration, was determined
to be an exceptional child, except for an
6 exceptional child who is
determined to be a gifted child, child with a
7 disability for whom an
individualized education program had been de-
8 veloped and effectuated under
the provisions of the special education for
9 exceptional children act.
10 Sec.
38. K.S.A. 1998 Supp. 72-8902 is hereby amended to read as
11 follows: 72-8902. (a) (1) Except as
authorized in provision (2), a suspen-
12 sion may be for a short term not exceeding
five school days, or for an
13 extended term not exceeding 90 school days.
An expulsion may be for a
14 term not exceeding 186 school days. If a
suspension or expulsion is for a
15 term exceeding the number of school days
remaining in the school year,
16 any remaining part of the term of the
suspension or expulsion may be
17 applied to the succeeding school year.
18 (2) A
short-term suspension may be imposed for not more than 10
19 school days if a pupil: (A) Carries a
weapon to school, onto school prop-
20 erty, or to a school supervised
activity; (B) knowingly possesses or uses
21 illegal drugs or sells or solicits the
sale of a controlled substance while at
22 school, on school property or at a
school supervised activity; or (C) has
23 engaged in behavior which resulted in,
or was substantially likely to have
24 resulted in, injury to the pupil or to
others.
25 (3) For the
purposes of this provision, the following definitions
apply:
26 (A) "Controlled substance" means a drug
or other substance identified
27 under schedules I, II, III, IV, or V in
21 U.S.C. 812(c); (B) "illegal drug"
28 means a controlled substance but does
not include such a substance that
29 is legally possessed or used under the
supervision of a licensed health-care
30 professional or that is legally
possessed or used under any other authority
31 under any federal or state law; and (C)
"weapon" means a weapon, device,
32 instrument, material, or substance,
animate or inanimate, that is used for,
33 or is readily capable of, causing death
or serious bodily injury, except that
34 such term does not include a pocket
knife with a blade of less than 2 1/2;
35 inches in length.
36 (b)
(1) Except as authorized in provision (2), no suspension for
a
37 short term shall be imposed upon a pupil
without giving the pupil notice
38 of the charges and affording the pupil an
opportunity for a hearing
39 thereon. The notice may be oral or written
and the hearing may be held
40 immediately after the notice is given. The
hearing may be conducted
41 informally but shall include the following
procedural due process require-
42 ments: (A) The right of the pupil to be
present at the hearing; (B) the
43 right of the pupil to be informed of the
charges; (C) the right of the pupil
SB 129--Am. by H
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1 to be informed of the basis for the
accusation; and (D) the right of the
2 pupil to make statements in defense
or mitigation of the charges or ac-
3 cusations. Refusal of a pupil to be
present at the hearing will constitute
4 a waiver of the pupil's opportunity
for a hearing.
5 (2) A
short-term suspension may be imposed upon a pupil forthwith,
6 and without affording the pupil
or the pupil's parent or guardian a hearing
7 if the presence of the pupil
endangers other persons or property or sub-
8 stantially disrupts, impedes or
interferes with the operation of the school.
9
(c) A written notice of any short-term suspension and
the reason
10 therefor shall be given to the pupil
involved and to the pupil's parent or
11 guardian within 24 hours after the
suspension has been imposed and, in
12 the event the pupil has not been afforded a
hearing prior to any short-
13 term suspension, an opportunity for an
informal hearing shall be afforded
14 the pupil as soon thereafter as practicable
but in no event later than 72
15 hours after such short-term suspension has
been imposed. Any notice of
16 the imposition of a short-term suspension
that provides an opportunity
17 for an informal hearing after such
suspension has been imposed shall state
18 that failure of the pupil and the
pupil's parent or guardian to attend the
19 hearing will result in a waiver of the
pupil's opportunity for the hearing.
20 (c)
(d) No suspension for an extended term and no expulsion
shall be
21 imposed upon a pupil until an opportunity
for a formal hearing thereon
22 is afforded the pupil. A written notice of
any proposal to suspend for an
23 extended term or to expel from school, and
the charges upon which the
24 proposal is based shall be given to the
pupil proposed to be suspended
25 or expelled from school, and to the pupil's
parent or guardian. Any notice
26 of a proposal to suspend for an extended
term or to expel from school
27 shall state the time, date and place that
the pupil will be afforded an
28 opportunity for a formal hearing, and that
failure of the pupil and the
29 pupil's parent or guardian to attend the
hearing will result in a waiver of
30 the pupil's opportunity for the hearing.
The hearing shall be held not later
31 than 10 days after the date of the notice.
The notice shall be accompanied
32 by a copy of this act and the regulations
of the board of education adopted
33 under K.S.A. 72-8903, and amendments
thereto.
34 (d)
(e) Whenever any written notice is required under this
act to be
35 given to a pupil or to a pupil's parent or
guardian, it shall be sufficient if
36 the notice is mailed to the address on file
in the school records of the
37 pupil. In lieu of mailing the written
notice, the notice may be personally
38 delivered.
39 (e)
(f) A formal hearing on a suspension or expulsion may
be con-
40 ducted by any certificated employee or
committee of certificated em-
41 ployees authorized by the board of
education to conduct the hearing.
42 Sec. 39. K.S.A.
72-5392 is hereby amended to read as follows:
43 72-5392. As used in this
act:
SB 129--Am. by H
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1
(a) "School district" means any public school district
organized
2 under the laws of this
state.
3
(b) "Exceptional children" and
"Auxiliary school special
education
4 services" means
(1) speech and hearing diagnostic services; (2)
diagnostic
5 psychological services; (3)
therapeutic psychological and speech and hear-
6 ing services; and (4)
programs and services for exceptional children
have
7 the meanings respectively ascribed
thereto in K.S.A. 72-962, and amend-
8 ments
thereto.
9
(c) "Private, nonprofit elementary or secondary school"
means
10 an organization which regularly
offers education at the elementary
11 or secondary level, which is exempt
from federal income taxation
12 under section 501 of the federal
internal revenue code of 1954, as
13 amended, which conforms to the civil
rights act of 1964, and at-
14 tendance at which satisfies any
compulsory school attendance laws
15 of this state.
16 Sec.
40. K.S.A. 72-5393 is hereby amended to read as
follows:
17 72-5393. Any
Every school district which provides
auxiliary school serv-
18 ices to pupils attending its
schools shall provide on an equal
basis the
19 same auxiliary school
special education services to every
pupil, whose
20 parent or guardian makes a request
therefor, residing for exceptional chil-
21 dren who reside in the school
district and attending attend
a private,
22 nonprofit elementary or secondary
school, whether such school is
23 located within or outside the school
district, upon request of a parent
24 or guardian of any such child for the
provision of such services. No school
25 district shall be required to provide
such services outside the school
26 district. Any
such school district may provide
auxiliary special edu-
27 cation services
to all pupils attending for exceptional
children who attend
28 a private, nonprofit elementary or
secondary school located within
29 the school district,
whether or not all such pupils
children reside in
30 the school district.
Speech and hearing diagnostic services and
diagnos-
31 tic psychological
Special education services, if
provided in the public
32 schools of the school district,
shall be which are provided
in any under
33 this section for exceptional children
who attend a private, nonprofit
34 elementary or secondary school which
is located in the school dis-
35 trict. Therapeutic
psychological and speech and hearing services and pro-
36 grams and services for exceptional
children, which cannot may be
prac-
37 tically provided
in any the private, nonprofit
elementary or
38 secondary school
which is located in the school district, shall be
provided
39 or in the public schools of
the school district, in a public center, or
in
40 mobile units located off the
private, nonprofit elementary or secondary
41 school premises as determined by
the school district. The site for the
42 provision of special education services
under this section for an
43 exceptional child shall be determined by
the school district after
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1 consultation with the parent or
guardian of the child and with of-
2 ficials of the private, nonprofit
elementary or secondary school.
3 Special education services
provided under this section for exceptional chil-
4 dren who attend a private,
nonprofit elementary or secondary school are
5 subject to the following
requirements: (a) If the services are provided for
6 in the private, nonprofit
elementary or secondary school, amounts ex-
7 pended for the provision of such
services shall be an amount up to, but
8 not more than, the average cost to
the school district for the provision of
9 the same services in the public
schools of the school district for children
10 within the same category of
exceptionality; (b) if the services are provided
11 for in the public schools of the school
district, the services shall be pro-
12 vided on an equal basis with the
provision of such services for exceptional
13 children attending the public
schools; and, (c)
if so the services are
pro-
14 vided in the public schools of the
school district or in a public
center,
15 transportation to and from such
public school or public center
shall
16 be provided by the school
district.
17 Sec.
41. K.S.A. 72-5394 is hereby amended to read as
follows:
18 72-5394. No auxiliary
school special education services shall be
pro-
19 vided in connection with religious
courses, devotional exercises, re-
20 ligious training, or any other
religious activity.
21 Sec. 39
42. K.S.A. 38-1513a, 72-933, 72-961, 72-963,
72-963a, 72-
22 963b, 72-963c, 72-964, 72-965, 72-966,
72-967, 72-969, 72-970, 72-971,
23 72-972, 72-973, 72-973a, 72-975, 72-976,
72-977, 72-979, 72-980 and, 72-
24 981, 72-5392, 72-5393 and
72-5394 and K.S.A. 1998 Supp. 72-962, 72-
25 968, 72-974, 72-978, 72-983, 72-53,109 and
72-8902 are hereby repealed.
26 Sec. 40
43. This act shall take effect and be in force
from and after
27 its publication in the Kansas register.