Connecticut Seal

General Assembly

 

Raised Bill No. 5552

February Session, 2016

 

LCO No. 2608

 

*02608_______ED_*

Referred to Committee on EDUCATION

 

Introduced by:

 

(ED)

 

AN ACT CONCERNING SPECIAL EDUCATION.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. Section 10-76h of the general statutes is repealed and the following is substituted in lieu thereof (Effective July 1, 2016):

(a) (1) A parent or guardian of a child requiring special education and related services pursuant to sections 10-76a to 10-76g, inclusive, a pupil if such pupil is an emancipated minor or eighteen years of age or older requiring such services, a surrogate parent appointed pursuant to section 10-94g, or the Commissioner of Children and Families, or a designee of said commissioner, on behalf of any such child in the custody of said commissioner, may, after participating in the adjudicative process provided in subsection (f) of this section, request a hearing of the local or regional board of education or the unified school district responsible for providing such services whenever such board or district proposes or refuses to initiate or change the identification, evaluation or educational placement of or the provision of a free appropriate public education to such child or pupil. Such request shall be made by sending a written request to such board or district with a copy to the Department of Education.

(2) The local or regional board of education or the unified school district responsible for providing special education and related services for a child or pupil requiring such services under sections 10-76a to 10-76g, inclusive, may request, upon written notice to the parent or guardian of such child, the pupil if such pupil is an emancipated minor or is eighteen years of age or older, the surrogate parent appointed pursuant to section 10-94g, or the Commissioner of Children and Families, or a designee of said commissioner, on behalf of any such child or pupil in the custody of said commissioner, a hearing concerning the decision of the planning and placement team established pursuant to section 10-76d, whenever such board or district proposes or refuses to initiate or change the identification, evaluation or educational placement of or the provision of a free appropriate public education placement to such child or pupil, including, but not limited to, refusal of the parent or guardian, pupil if such pupil is an emancipated minor or is eighteen years of age or older or the surrogate parent appointed pursuant to section 10-94g, to give consent for initial evaluation or reevaluation or the withdrawal of such consent. The local or regional board of education or unified school district shall provide a copy of the request to the Department of Education. In the event a planning and placement team proposes private placement for a child or pupil who requires or may require special education and related services and the parent, guardian, pupil if such pupil is an emancipated minor or is eighteen years of age or older or surrogate parent appointed pursuant to section 10-94g withholds or revokes consent for such placement, the local or regional board of education shall request a hearing in accordance with this section and may request mediation pursuant to subsection [(f)] (g) of this section, provided such action may be taken only in the event such parent, guardian, pupil or surrogate parent has consented to the initial receipt of special education and related services and subsequent to the initial placement of the child, the local or regional board of education seeks a private placement. For purposes of this section, a "local or regional board of education or unified school district" includes any public agency which is responsible for the provision of special education and related services to children requiring special education and related services.

(3) The request for a hearing shall contain a statement of the specific issues in dispute.

(4) A party shall have two years to request a hearing from the time the board of education proposed or refused to initiate or change the identification, evaluation or educational placement or the provision of a free appropriate public education placement to such child or pupil provided, if the parent, guardian, pupil or surrogate parent is not given notice of the procedural safeguards, in accordance with regulations adopted by the State Board of Education, including notice of the limitations contained in this section, such two-year limitation shall be calculated from the time notice of the safeguards is properly given.

(b) Upon receipt of a written request for a special education hearing made in accordance with subsection (a) of this section, the Department of Education shall appoint an impartial hearing officer who shall schedule a hearing which shall be held and the decision written and mailed not later than forty-five days after the commencement of the hearing pursuant to the Individuals with Disabilities Education Act, 20 USC 1400 et seq., as amended from time to time. An extension of the forty-five-day time limit may be granted by the hearing officer at the request of either party to the hearing.

(c) (1) The Department of Education shall provide training to hearing officers in administrative hearing procedures, including due process, and in the special educational needs of children. Hearing officers and members of hearing boards shall not be employees of the Department of Education or any local or regional board of education, unified school district or public agency involved in the education or care of the child. A person who is paid to serve as a hearing officer is not deemed to be an employee of the Department of Education. No person who participated in the previous identification, evaluation or educational placement of or the provision of a free appropriate public education to the child or pupil nor any member of the board of education of the school district under review, shall be a hearing officer or a member of a hearing board.

(2) Both parties shall participate in a prehearing conference to resolve the issues in dispute, if possible and narrow the scope of the issues. Each party to the hearing shall disclose, not later than five business days prior to the date the hearing commences, (A) documentary evidence such party plans to present at the hearing and a list of witnesses such party plans to call at the hearing, and (B) all completed evaluations and recommendations based on the offering party's evaluations that the party intends to use at the hearing. Except for good cause shown, the hearing officer shall limit each party to such documentary evidence and witnesses as were properly disclosed and are relevant to the issues in dispute. A hearing officer may bar any party who fails to comply with the requirements concerning disclosure of evaluations and recommendations from introducing any undisclosed evaluation or recommendation at the hearing without the consent of the other party.

(3) The hearing officer or board shall hear testimony relevant to the issues in dispute offered by the party requesting the hearing and any other party directly involved, and may hear any additional testimony the hearing officer or board deems relevant. The hearing officer or board may require a complete and independent evaluation or prescription of educational programs by qualified persons, the cost of which shall be paid by the board of education or the unified school district. The hearing officer or board shall cause all formal sessions of the hearing and review to be recorded in order to provide a verbatim record.

(d) (1) The hearing officer or board shall have the authority (A) to confirm, modify, or reject the identification, evaluation or educational placement of or the provision of a free appropriate public education to the child or pupil, (B) to determine the appropriateness of an educational placement where the parent or guardian of a child requiring special education or the pupil if such pupil is an emancipated minor or eighteen years of age or older, has placed the child or pupil in a program other than that prescribed by the planning and placement team, or (C) to prescribe alternate special educational programs for the child or pupil. If the parent or guardian of such a child who previously received special education and related services from the district enrolls the child, or the pupil who previously received special education and related services from the district enrolls in a private elementary or secondary school without the consent of or referral by the district, a hearing officer may, in accordance with the Individuals with Disabilities Education Act, 20 USC 1400 et seq., as amended from time to time, require the district to reimburse the parents or the pupil for the cost of that enrollment if the hearing officer finds that the district had not made a free appropriate public education available to the child or pupil in a timely manner prior to that enrollment. In the case where a parent or guardian, or pupil if such pupil is an emancipated minor or is eighteen years of age or older, or a surrogate parent appointed pursuant to section 10-94g, has refused consent for initial evaluation or reevaluation, the hearing officer or board may order an initial evaluation or reevaluation without the consent of such parent, guardian, pupil or surrogate parent except that if the parent, guardian, pupil or surrogate parent appeals such decision pursuant to subdivision (4) of this subsection, the child or pupil may not be evaluated or placed pending the disposition of the appeal. The hearing officer or board shall inform the parent or guardian, or the emancipated minor or pupil eighteen years of age or older, or the surrogate parent appointed pursuant to section 10-94g, or the Commissioner of Children and Families, as the case may be, and the board of education of the school district or the unified school district of the decision in writing and mail such decision not later than forty-five days after the commencement of the hearing pursuant to the Individuals with Disabilities Education Act, 20 USC 1400 et seq., as amended from time to time, except that a hearing officer or board may grant specific extensions of such forty-five-day period in order to comply with the provisions of subsection (b) of this section. The hearing officer may include in the decision a comment on the conduct of the proceedings. The findings of fact, conclusions of law and decision shall be written without personally identifiable information concerning such child or pupil, so that such decisions may be available for public inspections pursuant to sections 4-167 and 4-180a.

(2) If the local or regional board of education or the unified school district responsible for providing special education for such child or pupil requiring special education does not take action on the findings or prescription of the hearing officer or board within fifteen days after receipt thereof, the State Board of Education shall take appropriate action to enforce the findings or prescriptions of the hearing officer or board. Such action may include application to the Superior Court for injunctive relief to compel such local or regional board or school district to implement the findings or prescription of the hearing officer or board without the necessity of establishing irreparable harm or inadequate remedy at law.

(3) If the hearing officer or board upholds the local or regional board of education or the unified school district responsible for providing special education and related services for such child or pupil who requires or may require special education on the issue of evaluation, reevaluation or placement in a private school or facility, such board or district may evaluate or provide such services to the child or pupil without the consent of the parent or guardian, pupil if such pupil is an emancipated minor or is eighteen years of age or older, or the surrogate parent appointed pursuant to section 10-94g, subject to an appeal pursuant to subdivision (4) of this subsection.

(4) Appeals from the decision of the hearing officer or board shall be taken in the manner set forth in section 4-183, except the court shall hear additional evidence at the request of a party. Notwithstanding the provisions of section 4-183, such appeal shall be taken to the judicial district wherein the child or pupil resides. In the event of an appeal, upon request and at the expense of the State Board of Education, said board shall supply a copy of the transcript of the formal sessions of the hearing officer or board to the parent or guardian or the emancipated minor or pupil eighteen years of age or older or surrogate parent or said commissioner and to the board of education of the school district or the unified school district.

(e) Hearing officers and members of the hearing board shall be paid reasonable fees and expenses as established by the State Board of Education.

(f) Prior to requesting a hearing pursuant to subsection (a) of this section, the parties shall participate in an adjudication conducted by an impartial third-party adjudicator, who shall be chosen by both parties and who shall have significant experience and expertise in the fields and areas significant to the review of the special educational needs of the child or pupil. If the parties cannot agree on an adjudicator, the Commissioner of Education shall select the adjudicator for purposes of conducting an adjudication under this subsection. An adjudication shall be conducted in not more than two days. The adjudicator shall issue findings of fact and make a formal recommendation regarding the appropriate identification, evaluation or educational placement of or the provision of a free appropriate public education to such child. The parties may accept or reject the findings and recommendation of the adjudicator. If either party rejects the recommendation of the adjudicator, either party may elect to proceed to a hearing pursuant to subsection (a) of this section. In any such hearing, the findings of fact and recommendation of the adjudicator shall be available to the hearing officer and shall become part of the record of the hearing.

[(f)] (g) (1) In lieu of proceeding directly to a hearing, pursuant to subsection (a) of this section, the parties may agree in writing to request the Commissioner of Education to appoint a state mediator. Upon the receipt of a written request for mediation, signed by both parties, the commissioner shall appoint a mediator knowledgeable in the fields and areas significant to the review of the special educational needs of the child or pupil. The mediator shall attempt to resolve the issues in a manner which is acceptable to the parties. The mediator shall certify in writing to the Department of Education and to the parties whether the mediation was successful or unsuccessful.

(2) If the dispute is not resolved through mediation, either party may proceed to a hearing.

This act shall take effect as follows and shall amend the following sections:

Section 1

July 1, 2016

10-76h

Statement of Purpose:

To require parties to participate in an adjudication conducted by an impartial third-party adjudicator before conducting a special education hearing.

[Proposed deletions are enclosed in brackets. Proposed additions are indicated by underline, except that when the entire text of a bill or resolution or a section of a bill or resolution is new, it is not underlined.]