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SB-354 Special education: individualized education programs: translation services.(2017-2018)

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Date Published: 04/26/2017 09:00 PM
SB354:v97#DOCUMENT

Amended  IN  Senate  April 26, 2017
Amended  IN  Senate  March 20, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Senate Bill No. 354


Introduced by Senator Portantino

February 14, 2017


An act to amend Sections 56028, 56043, 56341.5, and 56506 of, and to add Section 56348 to, the Education Code, relating to special education.


LEGISLATIVE COUNSEL'S DIGEST


SB 354, as amended, Portantino. Special education: individualized education programs: translation services.
Existing law requires local educational agencies to identify, locate, and assess individuals with exceptional needs and to provide those pupils with a free appropriate public education in the least restrictive environment, with special education and related services as reflected in an individualized education program. Existing law requires a local educational agency to initiate and conduct meetings for the purposes of developing, reviewing, and revising the individualized education program of each individual with exceptional needs in accordance with federal law. Existing law requires the local educational agency to take any action necessary to ensure that the parent understands the proceedings at a meeting, including arranging for an interpreter for parents with deafness or whose native language is a language other than English. Existing law defines “parent” for purposes of these provisions to mean a biological or adoptive parent, a foster parent, a guardian generally authorized to act as the child’s parent or authorized to make educational decisions for the child, an individual acting in the place of a biological or adoptive parent, or a surrogate parent, as specified.
This bill would revise the definition of “parent” to specify that it also includes the educational rights holder and the conservator of a child. The bill would require a local educational agency to communicate in the native language of the parent, or in another mode of communication used by the parent, during the planning process for the individualized education program, as provided, and to provide alternative communication services, including by providing translation services for a pupil’s parent, as specified. The bill would require the local educational agency, if requested by a pupil’s parent, to provide the parent with a copy in the native language of the parent of the individualized education program, any revisions to the individualized education program, and certain documents discussed at an individualized education program team meeting within 30 45 days of that meeting or within 30 45 days of a later request. request, except as otherwise determined by a consent decree. The bill would require the documents to be translated by a qualified translator, as defined, who is proficient in both the English language and the non-English language to be used. The bill would provide that these requirements apply only for the top 8 languages, other than English, in each school district, as determined by the State Department of Education and reported on DataQuest. The bill would require the State Department of Education department to revise its notice of procedural safeguards, in English and in the primary languages for which the department has developed translated versions, to inform parents of their right to request the translation of these documents. By imposing additional duties on local educational agencies, the bill would impose a state-mandated local program.
Existing law requires written notice to a parent of his or her rights in language easily understood by the general public and in the native language of the parent or other mode of communication used by the parent, unless to do so is clearly not feasible.
This bill would instead require that notice to be given to a parent unless doing so creates an undue burden, as specified. To the extent the bill would impose additional duties on local educational agency officials, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 56028 of the Education Code is amended to read:

56028.
 (a) “Parent” means any of the following:
(1) A biological or adoptive parent of a child.
(2) A foster parent if the authority of the biological or adoptive parents to make educational decisions on the child’s behalf specifically has been limited by court order in accordance with Section 300.30(b)(1) or (2) of Title 34 of the Code of Federal Regulations.
(3) A guardian generally authorized to act as the child’s parent.
(4) A person authorized to make educational decisions for the child, including a responsible adult appointed for the child in accordance with Sections 361 and 726 of the Welfare and Institutions Code or one who is otherwise the educational rights holder for the child.
(5) An individual acting in the place of a biological or adoptive parent, including a grandparent, stepparent, or other relative, with whom the child lives, or an individual who is legally responsible for the child’s welfare.
(6) A surrogate parent who has been appointed pursuant to Section 7579.5 or 7579.6 of the Government Code, and in accordance with Section 300.519 of Title 34 of the Code of Federal Regulations and Section 1439(a)(5) of Title 20 of the United States Code.
(7) A conservator of a child.
(b) (1) Except as provided in paragraph (2), the biological or adoptive parent, when attempting to act as the parent under this part and when more than one party is qualified under subdivision (a) to act as a parent, shall be presumed to be the parent for purposes of this section unless the biological or adoptive parent does not have legal authority to make educational decisions for the child.
(2) If a judicial decree or order identifies a specific person or persons under paragraphs (1) to (5), inclusive, and (7) of subdivision (a) to act as the “parent” of a child or to make educational decisions on behalf of a child, then that person or persons shall be determined to be the “parent” for purposes of this part, Article 1 (commencing with Section 48200) of Chapter 2 of Part 27 of Division 4 of Title 2, and Chapter 26.5 (commencing with Section 7570) of Division 7 of Title 1 of the Government Code, and Sections 361 and 726 of the Welfare and Institutions Code.
(c) “Parent” does not include the state or any political subdivision of government.
(d) “Parent” does not include a nonpublic, nonsectarian school or agency under contract with a local educational agency for the provision of special education or designated instruction and services for a child.
(e) “Parent or guardian,” as used in this part, means “parent” as defined in this section.

SEC. 2.

 Section 56043 of the Education Code is amended to read:

56043.
 The primary timelines affecting special education programs are as follows:
(a) A proposed assessment plan shall be developed within 15 calendar days of referral for assessment, not counting calendar days between the pupil’s regular school sessions or terms or calendar days of school vacation in excess of five schooldays, from the date of receipt of the referral, unless the parent agrees in writing to an extension, pursuant to subdivision (a) of Section 56321.
(b) A parent shall have at least 15 calendar days from the receipt of the proposed assessment plan to provide consent or refuse to provide consent for an assessment pursuant to subdivision (c) of Section 56321.
(c) Once a child has been referred for an initial assessment to determine whether the child is an individual with exceptional needs and to determine the educational needs of the child, these determinations shall be made, and an individualized education program team meeting shall occur within 60 days of receiving parental consent for the assessment, pursuant to subdivision (a) of Section 56302.1, except as specified in subdivision (b) of that section, and pursuant to Section 56344.
(d) The individualized education program team shall review the pupil’s individualized education program periodically, but not less frequently than annually, pursuant to subdivision (d) of Section 56341.1.
(e) A parent shall be notified of the individualized education program team meeting early enough to ensure an opportunity to attend, pursuant to subdivision (b) of Section 56341.5. In the case of an individual with exceptional needs who is 16 years of age or younger, if appropriate, the meeting notice shall indicate that a purpose of the meeting will be the consideration of the postsecondary goals and transition services for the individual with exceptional needs, and the meeting notice described in this subdivision shall indicate that the individual with exceptional needs is invited to attend, pursuant to subdivision (e) of Section 56341.5.
(f) (1) An individualized education program required as a result of an assessment of a pupil shall be developed within a total time not to exceed 60 calendar days, not counting days between the pupil’s regular school sessions, terms, or days of school vacation in excess of five schooldays, from the date of receipt of the parent’s written consent for assessment, unless the parent agrees in writing to an extension, pursuant to Section 56344.
(2) A meeting to develop an initial individualized education program for the pupil shall be conducted within 30 days of a determination that the child needs special education and related services pursuant to Section 300.323(c)(1) of Title 34 of the Code of Federal Regulations and in accordance with Section 56344.
(g) (1) Beginning not later than the first individualized education program to be in effect when the pupil is 16 years of age, or younger if determined appropriate by the individualized education program team, and updated annually thereafter, the individualized education program shall include appropriate measurable postsecondary goals and transition services needed to assist the pupil in reaching those goals, pursuant to paragraph (8) of subdivision (a) of Section 56345.
(2) The individualized education program for pupils in grades 7 to 12, inclusive, shall include any alternative means and modes necessary for the pupil to complete the district’s prescribed course of study and to meet or exceed proficiency standards for graduation, pursuant to paragraph (1) of subdivision (b) of Section 56345.
(3) Beginning not later than one year before the pupil reaches 18 years of age, the individualized education program shall contain a statement that the pupil has been informed of the pupil’s rights under this part, if any, that will transfer to the pupil upon reaching 18 years of age, pursuant to Section 56041.5, subdivision (g) of Section 56345, and Section 300.520 of Title 34 of the Code of Federal Regulations.
(h) Beginning at 16 years of age or younger, and annually thereafter, a statement of needed transition services shall be included in the pupil’s individualized education program, pursuant to Section 56345.1 and Section 1414(d)(1)(A)(i)(VIII) of Title 20 of the United States Code.
(i) A pupil’s individualized education program shall be implemented as soon as possible following the individualized education program team meeting, pursuant to Section 300.323(c)(2) of Title 34 of the Code of Federal Regulations and in accordance with Section 56344.
(j) An individualized education program team shall meet at least annually to review a pupil’s progress, the individualized education program, including whether the annual goals for the pupil are being achieved, the appropriateness of the placement, and to make any necessary revisions, pursuant to subdivision (d) of Section 56343. The local educational agency shall maintain procedures to ensure that the individualized education program team reviews the pupil’s individualized education program periodically, but not less frequently than annually, to determine whether the annual goals for the pupil are being achieved, and revises the individualized education program as appropriate to address, among other matters, the provisions specified in subdivision (d) of Section 56341.1, pursuant to subdivision (a) of Section 56380.
(k) A reassessment of a pupil shall occur not more frequently than once a year, unless the parent and the local educational agency agree otherwise in writing, and shall occur at least once every three years, unless the parent and the local educational agency agree, in writing, that a reassessment is unnecessary, pursuant to Section 56381, and in accordance with Section 1414(a)(2) of Title 20 of the United States Code.
(l) A meeting of an individualized education program team requested by a parent to review an individualized education program pursuant to subdivision (c) of Section 56343 shall be held within 30 calendar days, not counting days between the pupil’s regular school sessions, terms, or days of school vacation in excess of five schooldays, from the date of receipt of the parent’s written request, pursuant to Section 56343.5.
(m) If an individual with exceptional needs transfers from district to district within the state, the following are applicable pursuant to Section 56325:
(1) If the child has an individualized education program and transfers into a district from a district not operating programs under the same local plan in which he or she was last enrolled in a special education program within the same academic year, the local educational agency shall provide the pupil with a free appropriate public education, including services comparable to those described in the previously approved individualized education program, in consultation with a parent, for a period not to exceed 30 days, by which time the local educational agency shall adopt the previously approved individualized education program or shall develop, adopt, and implement a new individualized education program that is consistent with federal and state law, pursuant to paragraph (1) of subdivision (a) of Section 56325.
(2) If the child has an individualized education program and transfers into a district from a district operating programs under the same special education local plan area of the district in which he or she was last enrolled in a special education program within the same academic year, the new district shall continue, without delay, to provide services comparable to those described in the existing approved individualized education program, unless the parent and the local educational agency agree to develop, adopt, and implement a new individualized education program that is consistent with state and federal law, pursuant to paragraph (2) of subdivision (a) of Section 56325.
(3) If the child has an individualized education program and transfers from an educational agency located outside the state to a district within the state within the same academic year, the local educational agency shall provide the pupil with a free appropriate public education, including services comparable to those described in the previously approved individualized education program, in consultation with a parent, until the local educational agency conducts an assessment as specified in paragraph (3) of subdivision (a) of Section 56325.
(4) In order to facilitate the transition for an individual with exceptional needs described in paragraphs (1) to (3), inclusive, the new school in which the pupil enrolls shall take reasonable steps to promptly obtain the pupil’s records, as specified, pursuant to subdivision (b) of Section 56325.
(n) The parent shall have the right and opportunity to examine all school records of the child and to receive complete copies within five business days after a request is made by the parent either orally or in writing, and before any meeting regarding an individualized education program of his or her child or any hearing or resolution session pursuant to Chapter 5 (commencing with Section 56500), in accordance with Section 56504 and Chapter 6.5 (commencing with Section 49060) of Part 27.
(o) Upon receipt of a request from a local educational agency where an individual with exceptional needs has enrolled, a former educational agency shall send the pupil’s special education records, or a copy of those records, to the new local educational agency within five working days, pursuant to subdivision (a) of Section 3024 of Title 5 of the California Code of Regulations.
(p) The department shall do all of the following:
(1) Have a time limit of 60 calendar days after a complaint is filed with the state educational agency to investigate the complaint.
(2) Give the complainant the opportunity to submit additional information about the allegations in the complaint.
(3) Review all relevant information and make an independent determination as to whether there is a violation of a requirement of this part or Part B of the federal Individuals with Disabilities Education Act (20 U.S.C. Sec. 1400 et seq.).
(4) Issue a written decision pursuant to Section 300.152(a)(5) of Title 34 of the Code of Federal Regulations.
(q) A prehearing mediation conference shall be scheduled within 15 calendar days of receipt by the Superintendent of the request for mediation, and shall be completed within 30 calendar days after the request for mediation, unless both parties to the prehearing mediation conference agree to extend the time for completing the mediation, pursuant to Section 56500.3.
(r) Any request for a due process hearing arising from subdivision (a) of Section 56501 shall be filed within two years from the date the party initiating the request knew or had reason to know of facts underlying the basis for the request, except that this timeline shall not apply to a parent if the parent was prevented from requesting the due process hearing, pursuant to subdivision (l) of Section 56505.
(s) The Superintendent shall ensure that, within 45 calendar days after receipt of a written due process hearing request, the hearing is immediately commenced and completed, including any mediation requested at any point during the hearing process, and a final administrative decision is rendered, pursuant to subdivision (f) of Section 56502.
(t) If either party to a due process hearing intends to be represented by an attorney in the due process hearing, notice of that intent shall be given to the other party at least 10 calendar days before the hearing, pursuant to subdivision (a) of Section 56507.
(u) Any party to a due process hearing shall have the right to be informed by the other parties to the hearing, at least 10 calendar days before the hearing, as to what those parties believe are the issues to be decided at the hearing and their proposed resolution of those issues, pursuant to paragraph (6) of subdivision (e) of Section 56505.
(v) Any party to a due process hearing shall have the right to receive from other parties to the hearing, at least five business days before the hearing, a copy of all documents, including all assessments completed and not completed by that date, and a list of all witnesses and their general area of testimony that the parties intend to present at the hearing, pursuant to paragraph (7) of subdivision (e) of Section 56505.
(w) An appeal of a due process hearing decision shall be made within 90 calendar days of receipt of the hearing decision, pursuant to subdivision (k) of Section 56505.
(x) A complaint filed with the department shall allege a violation of the federal Individuals with Disabilities Education Act (20 U.S.C. Sec. 1400 et seq.) or a provision of this part that occurred not more than one year before the date that the complaint is received by the department, pursuant to Section 56500.2 and Section 300.153(c) of Title 34 of the Code of Federal Regulations.
(y) The timeline for the production of translated copies of special education-related documents shall be as specified in Section 56348.

SEC. 3.

 Section 56341.5 of the Education Code is amended to read:

56341.5.
 (a) A local educational agency convening a meeting of the individualized education program team shall take steps to ensure that no less than one of the parents of the individual with exceptional needs is present at each individualized education program meeting or is afforded the opportunity to participate.
(b) A parent shall be notified of the individualized education program meeting early enough to ensure an opportunity to attend.
(c) The individualized education program meeting shall be scheduled at a mutually agreed-upon time and place. The notice of the meeting under subdivision (b) shall indicate the purpose, time, and location of the meeting and who shall be in attendance. A parent also shall be informed in the notice of the right, pursuant to Section 300.322(b)(1)(ii) of Title 34 of the Code of Federal Regulations, to bring other people to the meeting who have knowledge or special expertise regarding the individual with exceptional needs, and shall be informed of subdivision (i) of Section 56341 relating to the participation of the infants and toddlers with disabilities service coordinator under Subchapter III (commencing with Section 1431) of the federal Individuals with Disabilities Education Act (20 U.S.C. Sec. 1400 et seq.) at the initial individualized education program team meeting for a child previously served under the Subchapter III program.
(d) As part of the participation of an individual with exceptional needs in the development of an individualized education program, as required by federal law, the individual with exceptional needs shall be allowed to provide confidential input to any representative of his or her individualized education program team.
(e) For an individual with exceptional needs, beginning no later than the effective date of the individualized education program in effect when the individual reaches 16 years of age, or younger if determined appropriate by the individualized education program team, the meeting notice also shall indicate that a purpose of the meeting will be the consideration of the postsecondary goals and transition services for the individual, pursuant to Section 56345.1 and Section 1414(d)(1)(A)(i)(VIII) of Title 20 of the United States Code, and the meeting notice shall indicate that the individual with exceptional needs is invited to attend. If the pupil does not attend the individualized education program team meeting, the local educational agency shall take steps to ensure that the preferences and interests of the pupil are considered in accordance with Section 300.321(b)(2) of Title 34 of the Code of Federal Regulations.
(f) The local educational agency, to the extent appropriate, with the consent of the parents or the individual with exceptional needs who has reached the age of majority, and in accordance with Section 300.321(b)(3) of Title 34 of the Code of Federal Regulations, shall invite a representative of any participating agency that is likely to be responsible for providing or paying for transition services.
(g) Pursuant to Section 300.322(c) of Title 34 of the Code of Federal Regulations, if no parent can attend the meeting, the local educational agency shall use other methods to ensure parent participation, including through the use of individual or conference telephone calls, and consistent with Section 300.328 of Title 34 of the Code of Federal Regulations, the parent and the local educational agency may agree to use alternative means of meeting participation.
(h) A meeting may be conducted without a parent in attendance if the local educational agency is unable to convince the parent that he or she should attend. In this event, the local educational agency shall maintain a record of its attempts to arrange a mutually agreed-upon time and place, such as:
(1) Detailed records of telephone calls made or attempted and the results of those calls.
(2) Copies of correspondence sent to the parent and any responses received.
(3) Detailed records of visits made to the home or place of employment of the parent and the results of those visits.
(i) The local educational agency shall take any action necessary to ensure that the parent understands the proceedings at a meeting, including arranging for an interpreter for a parent with deafness or whose native language is a language other than English.
(j) The local educational agency shall give the parent a copy of the individualized education program, at no cost to the parent, and as specified in Section 56348, if applicable.

SEC. 4.

 Section 56348 is added to the Education Code, to read:

56348.
 (a) For purposes of this part, a local educational agency shall communicate in the native language of the parent, or in another mode of communication used by the parent, during the planning process for the individualized education program, including during the individualized education program team meeting, and shall provide alternative communication services, as required by Article 9.5 (commencing with Section 11135) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code and its implementing regulations, including by providing translation services for a parent as follows:
(1) The local educational agency shall provide a pupil’s parent with a copy of the pupil’s completed individualized education program and any revisions to the pupil’s individualized education program in the native language of the parent, or in another mode of communication used by the parent, within 30 45 days of the individualized education program team meeting, if requested by the pupil’s parent, except as otherwise determined by a consent decree, or within 30 45 days of a later request by the pupil’s parent. parent, except as otherwise determined by a consent decree. Nothing in this paragraph shall be construed to abridge any right granted to a parent under state or federal law, including the right to give or withhold consent, as specified in Sections 56021.1 and 56346, to part or all of an individualized education program.
(2) The local educational agency shall provide a pupil’s parent with a copy in the native language of the parent, or in another mode of communication used by the parent, of any evaluation, assessment, or progress data used to determine eligibility or to develop the individualized education plan that is discussed at an individualized education program team meeting within 30 45 days of the individualized education program team meeting, if requested by the pupil’s parent. parent, except as otherwise determined by a consent decree.
(b) The documents required to be translated pursuant to this section shall be translated by a qualified translator who is proficient in both the English language and the non-English language to be used.
(c) The department shall revise its notice of procedural safeguards, in English and in the primary languages for which the department has developed translated versions, to inform parents of their right to request the translation of documents as authorized by this section.
(d) The requirements of this section shall apply only for the top eight languages, other than English, in each school district, as determined by the department and reported on DataQuest.

(d)

(e) For purposes of this section, the following definitions apply:
(1) “Native language” has the same meaning as specified in Section 300.29 of Title 34 of the Code of Federal Regulations.
(2) “Qualified translator” means a translator who has met the testing or certification standards for outside or contract translators, is proficient in the ability to communicate commonly used terms and ideas between the English language and the non-English language to be used, and has knowledge of basic translator practices, including, but not limited to, confidentiality, neutrality, accuracy, completeness, and transparency.

(e)

(f) Nothing in this section is intended to affect any other state or federal law requirement regarding the translation of education-related documents, including, but not limited to, the right to alternative communication services provided for in Article 9.5 (commencing with Section 11135) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code and its implementing regulations.

SEC. 5.

 Section 56506 of the Education Code is amended to read:

56506.
 In addition to the due process hearing rights enumerated in subdivision (b) of Section 56501, the following due process rights extend to the pupil and the parent:
(a) Written notice to the parent of his or her rights in language easily understood by the general public and in the native language, as defined in Section 300.29 of Title 34 of the Code of Federal Regulations, of the parent, or in another mode of communication used by the parent, as required by Article 9.5 (commencing with Section 11135) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code and its implementing regulations, unless doing so creates an undue hardship, as specified in Section 11162 of Title 2 of the California Code of Regulations or any successor regulation. The written notice of rights shall include, but not be limited to, those prescribed by Section 56341.
(b) The right to initiate a referral of a child for special education services pursuant to Section 56303.
(c) The right to obtain an independent educational assessment pursuant to subdivision (b) or (c) of Section 56329.
(d) The right to participate in the development of the individualized education program and to be informed of the availability under state and federal law of free appropriate public education and of all available alternative programs, both public and nonpublic.
(e) Written parental consent pursuant to Section 56321 shall be obtained before any assessment of the pupil is conducted, unless the public agency prevails in a due process hearing relating to the assessment. In accordance with Section 300.300(c)(2) of Title 34 of the Code of Federal Regulations, informed parental consent need not be obtained in the case of a reassessment of the pupil if the local educational agency can demonstrate that it has taken reasonable measures to obtain consent and the pupil’s parent has failed to respond.
(f) Written parental consent pursuant to Section 56346 shall be obtained before the pupil is placed in a special education program.
(g) A parent of an individual with exceptional needs may elect to receive notices required under this chapter by an electronic mail communication, if the local educational agency makes that option available, in accordance with Section 1415(n) of Title 20 of the United States Code.

SEC. 6.

 If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.