As Amended by Senate Committee
         

          Session of 1998
                   
SENATE BILL No. 591
         
By Committee on Education
         
2-4
          10             AN ACT revising the special education for exceptional children act;
11             amending K.S.A. 38-1513a, 72-961, 72-963, 72-963a, 72-963c, 72-964,
12             72-965, 72-966, 72-967, 72-970, 72-971, 72-973, 72-973a, 72-975,
13             72-976, 72-977, 72-979 and 72-981 and K.S.A. 1997 Supp. 72-962, 72-
14             968, 72-974, 72-978, 72-983 and 72-53,109 and repealing the existing
15             sections; also repealing K.S.A. 72-933, 72-963b, 72-969, 72-972 and,
16             72-980, 72-5392, 72-5393 and 72-5394.
17            
18       Be it enacted by the Legislature of the State of Kansas:
19           Section 1. K.S.A. 72-961 is hereby amended to read as follows: 72-
20       961. This act shall be known and may be cited as the ``special education
21       for exceptional children act.'' It is the purpose and intention The purposes
22       of this act are to provide for educational opportunities which will con-
23       tribute to the development of each exceptional child in this state in accord
24       with his or her abilities and capacities assure compliance with the federal
25       law and to provide for an appropriate public education for exceptional
26       children. Notwithstanding any provision of this act to the contrary,
27       nothing in this act, except for the provision of special education for
28       gifted children and the requirement for parental consent, is in-
29       tended to create, nor shall any provision of this act be construed in
30       any manner to create, rights in addition to or in excess of those
31       created by federal law.
32           Sec. 2. K.S.A. 1997 Supp. 72-962 is hereby amended to read as fol-
33       lows: 72-962. As used in this act:
34           (a) ``School district'' means any public school district.
35           (b) ``Board'' means the board of education of any school district.
36           (c) ``State board'' means the state board of education.
37           (d) ``Department'' means the state department of education.
38           (e) ``State institution'' means Topeka state hospital, Osawatomie state
39       hospital, Rainbow mental health facility, Larned state hospital, Parsons
40       state hospital and training center, Winfield state hospital and training
41       center, Kansas neurological institute and, any juvenile correctional facility
42       as defined by K.S.A. 38-1602, and amendments thereto, and any correc-
43       tional institution as defined by K.S.A. 75-5202, and amendments thereto.

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  1           (f) ``Exceptional children'' means persons who:
  2           (1) Are school age, to be determined in accordance with rules and
  3       regulations adopted by the state board, which age may differ from the
  4       ages of children required to attend school under the provisions of K.S.A.
  5       72-1111, and amendments thereto; and
  6           (2) differ in physical, mental, social, emotional or educational char-
  7       acteristics to the extent that special education and related services are
  8       necessary to enable them to receive educational benefits in accordance
  9       with their abilities or capacities. The term exceptional children includes
10       children with disabilities and or gifted children.
11           (g) ``Gifted children'' means exceptional children who are determined
12       to be within the gifted category of exceptionality as such category is de-
13       fined in by the state plan board.
14           (h) ``Special education services'' means programs for which special-
15       ized training, instruction, programming techniques, facilities and equip-
16       ment may be needed for the education of exceptional children. specially
17       designed instruction provided at no cost to parents to meet the unique
18       needs of an exceptional child, including:
19           (1) Instruction conducted in the classroom, in the home, in hospitals
20       and institutions, and in other settings; and
21           (2) instruction in physical education.
22           (i) ``Special teacher'' means a person, employed by or under contract
23       with a school district or a state institution for to provide special education
24       or related services, who is:
25           (1) A teacher person qualified to instruct provide special education
26       or related services to exceptional children as determined by standards
27       established by the state board and who is so certified by the state board;
28       or
29           (2) a paraprofessional person qualified to assist certificated teachers
30       in the instruction provision of special education or related services to
31       exceptional children as determined by standards established by the state
32       board and who is so approved by the state board.
33           (j) ``State plan'' means the state plan for special education and related
34       services authorized by this act.
35           (k) ``Agency'' means boards and, the secretary of social and rehabili-
36       tation services, the commissioner of the juvenile justice authority, and the
37       secretary of corrections.
38           (l) ``Lawful custodian'' means a parent or a person acting as parent.
39       If none of the above is known or can be found, an agency shall cause
40       proper proceedings to be instituted pursuant to the Kansas code for care
41       of children to determine whether a child is a child in need of care. For a
42       child whose custodian is the secretary of social and rehabilitation services,
43       the term lawful custodian means the secretary except, when used in

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  1       K.S.A. 72-972 through 72-975, and amendments to such sections, the
  2       term means an education advocate.
  3           (m) ``Parent'' means a natural parent, an adoptive parent, or a step-
  4       parent. For purposes of rights conferred upon parents by this act, the
  5       term parent includes persons acting as parents and a legal guardian or
  6       an education advocates advocate.
  7           (n) (m) ``Person acting as parent'' means: (1) A guardian or conser-
  8       vator; or
  9           (2) a person, other than a parent, who: (A) Is liable by law to maintain,
10       care for, or support the a child, or who; (B) has actual care and control
11       of the a child and is contributing the major portion of the cost of support
12       of the child, or who; (C) has actual care and control of the a child with
13       the written consent of a person who has legal custody of the child,; or
14       who (D) has been granted custody of the child by a court of competent
15       jurisdiction.
16           (o) (n) (m) ``Education advocate'' means a person appointed by the
17       state board in accordance with the provisions of K.S.A. 38-1513a, and
18       amendments thereto. A person appointed as an education advocate for a
19       child shall not be:
20           (1) An employee of the agency which is required by law to provide
21       special education services for the child, or;
22           (2) an employee of the state board, the department, or any agency
23       which is directly involved in providing educational services for the child,;
24       or
25           (3) any person having a professional or personal interest which would
26       conflict with the interests of the child.
27           (o) (n) ``Appropriate Free appropriate public education'' means spe-
28       cial education and related services that:
29           (1) Are provided at public expenses expense, under public supervi-
30       sion and direction, and without charge;
31           (2) meet the standards of the state board;
32           (3) include an appropriate preschool, elementary, or secondary school
33       education; and
34           (4) are provided in conformity with an individualized education pro-
35       gram.
36           (p) (o) ``Federal law'' means the individuals with disabilities educa-
37       tion act, as amended.
38           (q) (p) ``Individualized education program'' or ``IEP'' means a written
39       statement for each exceptional child that is developed, reviewed, and re-
40       vised in accordance with the provisions of section 12, and amendments
41       thereto.
42           (r) (q) ``Related services'' means transportation, and such develop-
43       mental, corrective, and other supportive services, including speech-lan-

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  1       guage pathology and audiology services, psychological services, physical
  2       and occupational therapy, recreation, including therapeutic recreation,
  3       social work services, counseling services, including rehabilitation coun-
  4       seling, orientation and mobility services, and medical services, except that
  5       such medical services shall be for diagnostic and evaluation purposes only,
  6       as may be required to assist an exceptional child to benefit from special
  7       education, and includes the early identification and assessment of disa-
  8       bling conditions in children.
  9           (s) (r) ``Supplementary aids and services'' means aids, services, and
10       other supports that are provided in regular education classes or other
11       educational-related education-related settings to enable children with
12       disabilities to be educated with nondisabled children to the maximum
13       extent appropriate.
14           (t) (s) ``Individualized education program team'' or ``IEP team''
15       means a group of individuals composed of:
16           (1) The parents of a child:
17           (2) at least one regular education teacher of the child, if the child is,
18       or may be, participating in the regular education environment;
19           (3) at least one special education teacher or, where appropriate, at
20       least one special education provider of the child;
21           (4) a representative of the local educational agency who: (A) Is qual-
22       ified to provide, or supervise the provision of, specially designed instruc-
23       tion to meet the unique needs of exceptional children; (B) is knowledgeable
24       about the general curriculum; and (C) is knowledgeable about the avail-
25       ability of resources of the local educational agency;
26           (5) an individual who can interpret the instructional implications of
27       evaluation results;
28           (6) at the discretion of the parent or the agency, other individuals
29       who have knowledge or special expertise regarding the child, including
30       related services personnel as appropriate; and
31           (7) whenever appropriate, the child.
32           (u) (t) ``Evaluation'' means a multisourced and multidisciplinary ex-
33       amination, conducted in accordance with the provisions of section 11, and
34       amendments thereto, to determine whether a child is an exceptional child.
35           (v) (u) ``Independent educational evaluation'' means an examination
36       which is obtained by the parent of an exceptional child and performed by
37       an individual or group of individuals who meet state and local standards
38       to conduct such an examination.
39           (w) (v) ``Elementary school'' means any nonprofit institutional day
40       or residential school that offers instruction in any or all of the grades
41       kindergarten through nine.
42           (x) (w) ``Secondary school'' means any nonprofit instructional insti-
43       tutional day or residential school that offers instruction in any or all of

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  1       the grades nine through 12.
  2        (x) ``Children with disabilities'' means children with mental re-
  3       tardation, hearing impairments including deafness, speech or lan-
  4       guage impairments, visual impairments including blindness, serious
  5       emotional disturbance, orthopedic impairments, autism, traumatic
  6       brain injury, other health impairments, or specific learning disa-
  7       bilities and who, by reason thereof, need special education and re-
  8       lated services.
  9           Sec. 3. K.S.A. 72-963 is hereby amended to read as follows: 72-963.
10       (a) The state board shall adopt, from time to time amend, and administer
11       the state plan. The state board may amend the state plan, as necessary.
12       The state plan, and any amendments thereto, shall be prepared in con-
13       sultation with the state advisory council for special education provided
14       for in this act. The state plan shall include a statement of the objectives
15       of state supervision of special education services in school districts and
16       state institutions.
17           (b) The state board may adopt rules and regulations for the admin-
18       istration of the special education for exceptional children this act and shall
19       adopt rules and regulations necessary to comply with the federal law and
20       to implement and give effect to the state plan. Rules and regulations
21       adopted by the state board to implement and give effect to the state plan
22       shall include the following:
23           (a) Provisions for the establishment, maintenance and supervision of
24       special education services in school districts and state institutions.
25           (b) Prescribed courses of study and curricula necessary to meet
26       requirements for approval of special education services.
27           (c) Criteria for screening, diagnosis and certification of exceptional
28       children including physical, educational and psychological examinations.
29       No child from a home in which English is not the principal language may
30       be assigned to special education services for exceptional children until
31       such time that the child has been given, in the principal language used
32       in the home of the child, examinations reasonably related to the child's
33       cultural environment.
34           (d) Definitions of the various categories of exceptionality.
35           (e) Implementation dates of special education services for the various
36       categories of exceptionality.
37           (f) Standards for special education services to be received by each of
38       the several categories of exceptional children.
39           Rules and regulations adopted by the state board to implement and
40       give effect to the state plan shall be incorporated by reference in the state
41       plan the provisions of this act.
42           Sec. 4. K.S.A. 72-963a is hereby amended to read as follows: 72-
43       963a. Within 30 days after the effective date of this act, The state board

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  1       shall:
  2           (a) Establish procedures, which shall be utilized by each agency, to
  3       allow parties to disputes involving any matter described in subsection
  4       (b)(4) of section 17, and amendments thereto, or in section 31, and amend-
  5       ments thereto, to resolve such disputes through a mediation process or
  6       through due process hearings which meet the requirements of the federal
  7       law and this act.
  8           (a) (b) Establish, in consultation with the state advisory council for
  9       special education, standards and requirements for qualification of persons
10       as hearing officers and mediators. Such standards and requirements shall
11       include, but not be limited to, standards and requirements relating to the
12       education and training necessary to assure the competent performance
13       of functions and procedures which hearing officers and mediators are
14       authorized to perform.
15           (b) (c) Establish standards and criteria for conducting and approving
16       training programs for hearing officers and mediators.
17           (c) (d) Compile and maintain a list of qualified hearing officers and
18       mediators.
19           Sec. 5. K.S.A. 72-963c is hereby amended to read as follows: 72-
20       963c. (a) The state board, in consultation with the state advisory council
21       for special education, shall:
22           (1) Prescribe guidelines for the selection of persons for appointment
23       as education advocates and for the exercise of their authorized powers,
24       duties and functions;
25           (2) establish standards and criteria for qualification of persons for
26       appointment as education advocates; and
27           (3) provide for special training programs with respect to the powers,
28       duties and functions of lawful custodians parents.
29           (b) Lawful custodians Parents who are education advocates shall, and
30       all other lawful custodians parents may, participate in the special training
31       programs provided for under provision (3) of subsection (a).
32           (c) The state board shall adopt rules and regulations for effectuation
33       of the provisions of this section and shall make such rules and regulations
34       a part of the state plan.
35           Sec. 6. K.S.A. 72-964 is hereby amended to read as follows: 72-964.
36       (a) The There is established a state advisory council for special education
37       shall consist of nine members. Members of the advisory council shall be
38       appointed by the state board of education, and every such appointment
39       shall be for a fixed term of not to exceed three years. Whenever a vacancy
40       occurs in the membership of the advisory council for any reason other
41       than the expiration of the term of a member, the state board shall appoint
42       a successor for the remainder of the unexpired term. Members appointed
43           (b) (1) Advisory The advisory council established under this section

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  1       shall be representative of the state population and be comprised of per-
  2       sons and community organizations interested in exceptional children, pro-
  3       fessions related to the educational needs of exceptional children, local
  4       school districts and boards of education thereof, state institutions of
  5       higher education and state institutions. involved in, or concerned with,
  6       the education of exceptional children, including: (A) Parents of exceptional
  7       children; (B) individuals with disabilities; (C) teachers; (D) representa-
  8       tives of institutions of higher education that prepare special education
  9       and related services personnel; (E) state and local education officials; (F)
10       administrators of programs for exceptional children; (G) representatives
11       of other state agencies involved in the financing or delivery of related
12       services to exceptional children; (H) representatives of private schools and
13       public charter schools; (I) at least one representative of a vocational, com-
14       munity, or business organization concerned with the provision of transi-
15       tion services to children with disabilities; and (J) representatives from the
16       state juvenile and adult corrections agencies.
17           (2) A majority of the members of the advisory council shall be indi-
18       viduals with disabilities or parents of children with disabilities.
19           (b) (c) The state advisory council for special education shall:
20           (1) Advise and consult with the state board in the preparation and
21       administration of the state plan and in the formulation and review of rules
22       and regulations adopted pursuant to this act; (2) consider any problems
23       presented to it by the state board, and give advice thereon; and (3) make
24       recommendations to the state board concerning special education serv-
25       ices. In addition, the advisory council shall have and perform such powers,
26       functions and duties as are specified by law. of unmet needs within the
27       state in the education of exceptional children;
28           (2) comment publicly on any rules and regulations proposed by the
29       state board regarding the education of exceptional children;
30           (3) advise the state board in developing evaluations and reporting on
31       data to the federal government;
32           (4) advise the state board in developing corrective action plans to
33       address findings identified in federal monitoring reports; and
34           (5) advise the state board in developing and implementing policies
35       relating to the coordination of services for exceptional children.
36           (c) (d) Members of the state advisory council for special education
37       attending meetings of such council, or attending a subcommittee meeting
38       thereof authorized by the state board, shall be paid subsistence allow-
39       ances, mileage and other expenses as provided in K.S.A. 75-3223, and
40       amendments thereto.
41           (d) (e) The state board shall call the members of the advisory council
42       to meet at Topeka at least once each year, at which meeting the council
43       shall organize by electing a chairperson and a vice-chairperson. The per-

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  1       son in the department specified under direction of the state board to be
  2       the principal administrator of special education and related services shall
  3       be the secretary of the advisory council. The council shall meet upon the
  4       call of the chairperson or upon the call of the state board as often as may
  5       be necessary at times and places designated by the chairperson or by the
  6       state board in order to fulfill the duties prescribed under the provisions
  7       of the special education for exceptional children this act.
  8           Sec. 7. K.S.A. 72-965 is hereby amended to read as follows: 72-965.
  9       (a) The state board shall be responsible for the distribution and allocation
10       of state and federal funds for special education in accordance with ap-
11       propriation acts and the statutes of this state. Such moneys shall be ex-
12       pended only in accordance with and for the purposes specified in federal
13       or state law. Payments under this act may be made in installments and in
14       advance or by way of reimbursement, with necessary adjustments on ac-
15       count of for overpayments or underpayments. Federal funds for special
16       education shall be deposited in the state treasury.
17           (b) The state board is hereby authorized to accept from an individual
18       or individuals, the United States government or any of its agencies or any
19       other public or private body, grants or contributions of money, funds or
20       property which the state board may authorize to be used in accordance
21       with appropriation acts, for or in aid of special education or related serv-
22       ices or any of the purposes authorized by federal law or this act or the
23       state plan.
24           Sec. 8. K.S.A. 72-966 is hereby amended to read as follows: 72-966.
25       (a) (1) The Each board of education of every school district shall provide
26       special education services for all exceptional children who are residents
27       of the school district. adopt and implement procedures to assure that all
28       exceptional children residing in the school district, including children en-
29       rolled in private schools, who are in need of special eduction and related
30       services, are identified, located and evaluated.
31           (2) Each board shall provide an a free appropriate public education
32       for exceptional children enrolled full time in the school district, including
33       and for children with disabilities who are placed in a private school or
34       facility by the school district as the means of carrying out the board's
35       obligation to provide an a free appropriate public education under this
36       act and for children with disabilities who have been suspended for an
37       extended term or expelled from school.
38           (3) Consistent with the number of exceptional children who are en-
39       rolled by their parents in private schools located in the school district,
40       each board shall make provision for the participation of such children in
41       special education and related services provided by the school district in
42       accordance with the following requirements: (A) Amounts expended for
43       the provision of services to such children shall include an amount equal

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  1       to a proportionate amount of federal funds provided to the school district
  2       for the provision of special education and related services; and (B) such
  3       services may be provided to exceptional children on the premises of pri-
  4       vate schools to the extent consistent with law.
  5           (4) (A) Subject to provision (3), a board shall not be required to pay
  6       the costs of education, including special education and related services,
  7       of an exceptional child at a private school if the school district made an
  8       a free appropriate public education available to the child and the parents
  9       elected to place the child in the private school.
10           (B) If the parents of an exceptional child, who previously received
11       special education and related services from a school district, enroll the
12       child in a private school without the consent of, or referral by, the school
13       district, a hearing officer or court may require the school district to re-
14       imburse the parents for the cost of that enrollment if the hearing officer
15       or court finds that the school district had not made an a free appropriate
16       public education available to the child in a timely manner prior to the
17       enrollment. The amount of reimbursement may be reduced or denied if:
18       (i) At the most recent IEP meeting attended by the parents prior to re-
19       moval of the child from the school district, the parents did not inform the
20       IEP team that they were rejecting the proposed placement, including stat-
21       ing their concerns and their intent to enroll their child in a private school
22       at public expense; (ii) the parents, at least 10 business days, including any
23       holidays that occur on a business day, prior to the removal of the child
24       from the school district, did not give written notice to the school district
25       of the information described in clause (i); or (iii) there is a judicial finding
26       of unreasonableness with respect to actions taken by the parents.
27           (C) Notwithstanding the notice requirements in subpart (B)(i) and
28       (ii), the amount of reimbursement may not be reduced or denied for failure
29       to provide such notice if: (i) The parent is illiterate and cannot write in
30       English; (ii) compliance with such notice requirement would likely result
31       in physical or serious emotional harm to the child; or (iii) the parent had
32       not received notice from the school district of the parent's obligation to
33       provide the notice described in subpart (B)(i).
34           (b) When If an exceptional child, upon referral by a person licensed
35       to practice medicine and surgery, is admitted to a hospital, treatment
36       center, or other health care institution, or to a group boarding home or
37       other care facility, and the institution or facility is located outside the
38       school district in which the child resides, the district in which the insti-
39       tution or facility is located must contract with the district in which a parent
40       or person acting as parent of the child resides, to shall provide special
41       education or related services, if such services are necessary for the child.
42       Special education and related services required by this subsection shall
43       may be provided pursuant to and in accordance with a contract which

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  1       shall be entered into between the board of education of the school district
  2       of which the child is a resident and the board of education of the school
  3       district in which the child is living housed. Each Any such contract shall
  4       be subject to the provisions of subsection subsections (a)(3) and subsec-
  5       tion (c) of K.S.A. 72-967, and amendments thereto. If a contract is not
  6       entered into between the school districts, the child shall be deemed to be
  7       a pupil of the school district which is providing special education and
  8       related services to the child. Nothing in this subsection shall be construed
  9       to limit or supersede or in any manner affect or diminish the requirements
10       of compliance by each school district with the provisions of subsection
11       (a), but shall operate as a comity of school districts in assuring the pro-
12       vision of special education services for each exceptional child in the state.
13           (c) (1) Special education and related services required by this section
14       shall meet standards and criteria set by the state board.
15           (2) The manner and time for implementation in school districts of
16       special education services designed for each of the various categories of
17       exceptionality shall be designated by the state board in accordance with
18       the state plan. shall be responsible for assuring that the requirements of
19       the federal law and this act are met and that all educational programs for
20       exceptional children, including programs administered by any other state
21       agency: (A) Are under the general supervision of individuals who are
22       responsible for educational programs for exceptional children; and (B)
23       meet the educational standards prescribed by the state board.
24           (3) Provision (2) of this subsection shall not limit the responsibility of
25       any other state agency to provide, or pay for some or all of the costs of,
26       an a free appropriate public education for an exceptional child.
27           (d) Consistent with state and federal law, state agencies shall enter
28       into such interagency agreements as are necessary or advisable in making
29       an a free appropriate public education available to all exceptional chil-
30       dren residing in the state. The state board shall establish procedures
31       for resolving interagency disputes, including procedures under
32       which local educational agencies may initiate proceedings to secure
33       reimbursement or otherwise implement or seek enforcement of the
34       provisions of the interagency agreement.
35           New Sec. 9. The state board shall:
36           (1) Establish goals for the performance of children with disabilities
37       in the state that: (A) Will promote the purposes of this act; and (B) are
38       consistent, to the maximum extent appropriate, with other goals and stan-
39       dards for children established by the state board;
40           (2) establish performance indicators the state will use to assess pro-
41       gress toward achieving those goals that, at a minimum, address the per-
42       formance of children with disabilities on assessments, drop-out rates, and
43       graduation rates;

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  1           (3) every two years, report to the secretary of the U.S. department
  2       of education, and to the public, the progress of the state, and of children
  3       with disabilities in the state, toward meeting the goals established under
  4       this section; and
  5           (4) based on its assessment of that progress, revise its state improve-
  6       ment plan under subpart 1 or part D of the federal law as may be needed
  7       to improve its performance, if the state receives assistance under that
  8       subpart.
  9           New Sec. 10. (a) The state board and each board shall include, to
10       the extent required by the federal law and this act, exceptional children
11       in general state and district-wide assessment programs, with appropriate
12       accommodations where necessary. As appropriate, the state board and
13       each board shall:
14           (1) Develop guidelines for the participation of children with disabil-
15       ities in alternate assessments for those children who cannot participate in
16       state and district-wide assessment programs; and
17           (2) develop and, beginning not later than July 1, 2000, conduct those
18       alternate assessments.
19           (b) The state board shall make available to the public, and report to
20       the public with the same frequency and in the same detail as it reports
21       on the assessment of nondisabled children, the following:
22           (1) The number of children with disabilities participating in regular
23       assessments;
24           (2) the number of those children participating in alternate assess-
25       ments; and
26           (3) the performance of those children on regular assessments begin-
27       ning not later than July of 1998, and on alternate assessments not later
28       than July 1, 2000, if doing so would be statistically sound and would not
29       result in the disclosure of performance results identifiable of individual
30       children.
31           (c) Data relating to the performance of children with disabilities shall
32       be disaggregated:
33           (1) For assessments conducted after July 1, 1998; and
34           (2) for assessments conducted before July 1, 1998, if the state is re-
35       quired to disaggregate such data.
36        (c) Data relating to the performance of children with disabili-
37       ties shall be disaggregated for assessments conducted after the ef-
38       fective date of this act.
39           New Sec. 11. (a)(1) An agency shall conduct a full and individual
40       initial evaluation in accordance with this section before the initial provi-
41       sion of special education and related services to an exceptional child. Such
42       initial evaluation shall consist of procedures to determine whether a child
43       is an exceptional child and the educational needs of such child.

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  1           (2) An agency proposing to conduct an initial evaluation of a child
  2       shall obtain informed consent from the parent of such child before the
  3       evaluation is conducted. Parental consent for evaluation shall not be con-
  4       strued as consent for placement for receipt of special education and re-
  5       lated services.
  6           (3) If the parents of a child refuse consent for evaluation of the child,
  7       the agency may, but shall not be required to, continue to pursue an
  8       evaluation by utilizing the mediation or due process procedures pre-
  9       scribed in this act.
10           (b) Each agency shall ensure that a reevaluation of each exceptional
11       child is conducted:
12           (1) If conditions warrant a reevaluation or if the child's parent or
13       teacher requests a reevaluation, but at least once every 3 years; and
14           (2) in accordance with subsections (c), (d) and (e).
15           (c) An agency shall provide notice to the parents of a child that de-
16       scribes any evaluation procedures such agency proposes to conduct. In
17       conducting the evaluation, the agency shall:
18           (1) Use a variety of assessment tools and strategies to gather relevant
19       functional and developmental information, including information pro-
20       vided by the parent, that may assist in determining whether the child is
21       an exceptional child and the content of the child's individualized educa-
22       tion program, including information related to enabling the child to be
23       involved, and progress, in the general curriculum or, for preschool chil-
24       dren, to participate in appropriate activities;
25           (2) not use any single procedure as the sole criterion for determining
26       whether a child is an exceptional child or determining an appropriate
27       educational program for the child; and
28           (3) use technically sound instruments that may assess the relative con-
29       tribution of cognitive and behavioral factors, in addition to physical or
30       developmental factors.
31           (d) An agency shall ensure that:
32           (1) Tests and other evaluation materials used to assess a child under
33       this section: (A) Are selected and administered so as not to be discrimi-
34       natory on a racial or cultural basis; and (B) are provided and administered
35       in the child's native language or other mode of communication, unless it
36       is clearly not feasible to do so; and
37           (2) any standardize standardized tests that are given to the child:
38       (A) Have been validated for the specific purpose for which they are used;
39       (B) are administered by trained and knowledgeable personnel; and (C)
40       are administered in accordance with any instructions provided by the
41       producer of such tests;
42           (3) the child is assessed in all areas of suspected disability; and
43           (4) assessment tools and strategies that provide relevant information

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  1       that directly assists persons in determining the educational needs of the
  2       child are provided.
  3           (e) Upon completion of administration of tests and other evaluation
  4       materials:
  5           (1) The determination of whether the child is an exceptional child
  6       shall be made by a team of qualified professionals and the parent of the
  7       child in accordance with this section; and
  8           (2) a copy of the evaluation report and the documentation of deter-
  9       mination of eligibility shall be given to the parent.
10           (f) In making a determination of eligibility under this section, a child
11       shall not be determined to be an exceptional child if the determinant
12       factor for such determination is lack of instruction in reading or math or
13       limited English proficiency.
14           (g) As part of an initial evaluation, if appropriate, and as part of any
15       reevaluation under this section, the IEP team and other qualified pro-
16       fessionals, as appropriate, shall:
17           (1) Review existing evaluation data on the child, including evaluations
18       and information provided by the parents of the child, current class-
19       room-based assessments and observations, and teacher and related serv-
20       ices providers observation; and
21           (2) on the basis of that review, and input from the child's parents,
22       identify what additional data, if any, are needed to determine: (A)
23       Whether the child has a particular category of disability, or in the case of
24       a reevaluation of a child, whether the child continues to have such a
25       disability; (B) the present levels of performance and educational needs of
26       the child; (C) whether the child needs special education and related serv-
27       ices; or in the case of a reevaluation of a child, whether the child continues
28       to need special education and related services; and (D) whether any ad-
29       ditions or modifications to the special education and related services are
30       needed to enable the child to meet the measurable annual goals set out
31       in the IEP of the child and to participate, as appropriate, in the general
32       curriculum.
33           (h) Each agency shall obtain informed parental consent prior to con-
34       ducting any reevaluation of an exceptional child, except that such in-
35       formed consent need not be obtained if the agency can demonstrate that
36       it took reasonable measures to obtain such consent and the child's parent
37       failed to respond.
38           (i) If the IEP team and other qualified professionals, as appropriate,
39       determine that no additional data are needed to determine whether the
40       child continues to be an exceptional child, the agency:
41           (1) Shall notify the child's parents of: (A) That determination and the
42       reasons for it; and (B) the rights of such parents to request an assessment
43       to determine whether the child continues to be a child with a disability;

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  1       and
  2           (2) shall not be required to conduct such an assessment unless re-
  3       quested by the child's parents.
  4           (j) An agency shall evaluate a child in accordance with this section
  5       before determining that the child is no longer an exceptional child.
  6           New Sec. 12. (a)(1) Except as provided in provision (2), at the be-
  7       ginning of each school year, each agency shall have an individualized
  8       education program in effect for each exceptional child.
  9           (2) In the case of a child with a disability aged three through five and
10       for two year-old children with a disability who will turn age three during
11       the school year, an individualized family service plan that contains the
12       material described in 20 USC 636 1436, and that is developed in ac-
13       cordance with this section, may serve as the IEP of the child if using that
14       plan as the IEP is agreed to by the agency and the child's parents.
15        (b) The IEP for each exceptional child shall include:
16           (1) A statement of the child's present levels of educational per-
17       formance, including: (A) How the child's disability or giftedness
18       affects the child's involvement and progress in the general curric-
19       ulum; or (B) for preschool children, as appropriate, how the disa-
20       bility affects the child's participation in appropriate activities;
21           (2) a statement of measurable annual goals, including bench-
22       marks or short-term objectives, related to: (A) Meeting the child's
23       needs that result from the child's disability of giftedness to enable
24       the child to be involved in and progress in the general or advanced
25       curriculum; and (B) meeting each of the child's other educational
26       needs that result from the child's disability or giftedness;
27           (3) a statement of the special education and related services and
28       supplementary aids and services to be provided to the child, or on
29       behalf of the child, and a statement of the program modifications
30       or supports for school personnel that will be provided for the child:
31       (A) To advance appropriately toward attaining the annual goals;
32       (B) to be involved and progress in the general curriculum in ac-
33       cordance with provision (1) and to participate in extracurricular
34       and other nonacademic activities; and (C) to be educated and par-
35       ticipate with other children with disabilities and nondisabled chil-
36       dren in the activities described in this paragraph;
37           (4) an explanation of the extent, if any, to which the child will
38       not participate with nondisabled children in the regular class and
39       in the activities described in provision (3);
40           (5) (A) a statement of any individual modifications in the ad-
41       ministration of state or districtwide assessments of student achieve-
42       ment that are needed in order for the child to participate in such
43       assessment; and (B) if the IEP team determines that the child will

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  1       not participate in a particular state or districtwide assessment of
  2       student achievement or part of such an assessment, a statement of
  3       why that assessment is not appropriate for the child and how the
  4       child will be assessed;
  5           (6) the projected date for the beginning of the services and mod-
  6       ifications described in provision (3), and the anticipated frequency,
  7       location, and duration of those services and modifications;
  8           (7) (A) beginning at age 14, and updated annually, a statement
  9       of the transition service needs of the child under the applicable
10       components of the child's IEP that focuses on the child's course of
11       study, such as participation in advanced-placement courses or a
12       vocational education program; (B) beginning at age 16 or younger,
13       if determined appropriate by the IEP team, a statement of needed
14       transition services for the child, including, when appropriate, a
15       statement of the interagency responsibilities or any needed link-
16       ages; and (C) beginning at least one year before the child reaches
17       the age of majority under state law, a statement that the child has
18       been informed of the child's rights under this title, if any, that will
19       transfer to the child on reaching the age of majority under section
20       18 of this act;
21           (8) a statement of: (A) How the child's progress toward the an-
22       nual goals will be measured; and (B) how the child's parents will
23       be regularly informed, by such means as periodic report cards, at
24       least as often as parents of nondisabled children are informed of
25       their children's progress, of their child's progress toward the annual
26       goals; and the extent to which that progress is sufficient to enable
27       the child to achieve the goals by the end of the year.
28           (b) (c) In developing each child's IEP, the IEP team shall consider:
29           (1) The strengths of the child and the concerns of the parents for
30       enhancing the education of their child;
31           (2) the results of the initial evaluation or most recent evaluation of
32       the child;
33           (3) in the case of a child whose behavior impedes the child's learning
34       or that of others, strategies, including positive behavioral interventions
35       and supports to address that behavior;
36           (4) in the case of a child with limited English proficiency, the lan-
37       guage needs of the child as such needs relate to the child's IEP;
38           (5) in the case of a child who is blind or visually impaired, provide
39       for instruction in Braille and the use of Braille unless the IEP team de-
40       termines, after an evaluation of the child's reading and writing skills,
41       needs, and appropriate reading and writing media, including an evalua-
42       tion of the child's future needs for instruction in Braille or the use of
43       Braille, that instruction in Braille or the use of Braille is not appropriate

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  1       for the child;
  2           (6) the communication needs of the child, and in the case of a child
  3       who is deaf or hard of hearing, consider the child's language and com-
  4       munication needs, opportunities for direct communications with peers
  5       and professional personnel in the child's language and communication
  6       mode, academic level, and full range of needs, including opportunities
  7       for direct instruction in the child's language and communication mode;
  8       and
  9           (7) whether the child requires assistive technology devices and serv-
10       ices.
11           (c) (d) The regular education teacher of the child, as a member of
12       the IEP team, to the extent appropriate, shall participate in:
13           (1) The development of the IEP of the child, including the deter-
14       mination of appropriate positive behavioral interventions and strategies
15       and the determination of supplementary aids and services, program mod-
16       ifications, and support for school personnel consistent with this section;
17       and
18           (2) the review and revision of the child's IEP under subsection (d).
19           (d) (e) Each agency shall ensure that the IEP team:
20           (1) Reviews the child's IEP periodically, but not less than annually to
21       determine whether the annual goals for the child are being achieved; and
22           (2) revises the IEP as appropriate to address: (A) Any lack of expected
23       progress toward the annual goals and in the general curriculum, where
24       appropriate; (B) the results of any reevaluation conducted under this sec-
25       tion; (C) information about the child provided to, or by, the parents, as
26       described in subsection (g) of section 11, and amendments thereto; (D)
27       the child's anticipated needs; or (E) other matters.
28           Sec. 13. K.S.A. 72-967 is hereby amended to read as follows: 72-967.
29       (a) Each board, in order to comply with the requirements of K.S.A. 72-
30       933 and 72-966 this act shall have the authority to:
31           (1) Establish and organize approvable Provide appropriate special
32       education and related services for exceptional children within its schools.
33           (2) Provide for approvable appropriate special education and related
34       services in the home, in a hospital or in other facility facilities.
35           (3) Contract with any another school district for special education and
36       related services. Before entering into any such contract, the special ed-
37       ucation services to be provided by such school district, and the contract
38       therefor, shall be approved by the commissioner of education upon au-
39       thorization by the state board, which approval shall be granted if the
40       special education services provided for in such contract meet standards
41       and criteria set by the state board in accordance with the state plan. Any
42       such contract may provide for the payment of tuition and other costs by
43       the contracting school district in which the child is enrolled.

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  1           (4) Enter into cooperative agreements with one or more other school
  2       districts for special education and related services, if such agreements are
  3       approved as provided by this act.
  4           (5) Contract with any accredited private nonprofit corporation or any
  5       public or private institution within or without outside the state which has
  6       proper special education or related services for exceptional children. Prior
  7       to the time any school district enters into a contract with any private
  8       nonprofit corporation or any public or private institution for the education
  9       of any exceptional child the curriculum provided by such corporation or
10       institution and the contract shall be approved by the commissioner of
11       education upon authorization by the state board. Whenever an excep-
12       tional child is educated by a private nonprofit corporation or a public or
13       private institution under the provisions of this paragraph, such child shall
14       be considered a pupil of the school district contracting for such education
15       hereunder to the same extent as other pupils of such school district for
16       the purpose of determining entitlements and participation in all state,
17       county federal and other financial assistance or payments to such school
18       district.
19           (6) Provide transportation for exceptional children, whether such
20       children are residents or nonresidents of such school district, to and from
21       for the provision of special education or related services attended. In lieu
22       of paying for transportation, the board of the school district in which an
23       exceptional child resides may pay all or part of the cost of room and board
24       for such exceptional child at the place where the special education or
25       related services attended are located provided.
26           (b) Special education and related services which are provided by
27       school districts for exceptional children shall meet standards and criteria
28       set by the state board in accordance with the state plan and shall be
29       subject to approval by the state board.
30           (c) Any contract entered into by a board under the provisions of this
31       section shall be subject to change or termination by the legislature.
32           Sec. 14. K.S.A. 1997 Supp. 72-968 is hereby amended to read as
33       follows: 72-968. (a) The boards of any two or more school districts within
34       or outside the state may make and enter into agreements providing for
35       cooperative operation and administration in providing special education
36       and related services for exceptional children on a shared-cost basis, sub-
37       ject to the following:
38           (1) An agreement shall be effective only after approval by the state
39       board, which approval shall be granted if the special education services
40       provided for in such agreement meet standards and criteria set by the
41       state board in accordance with the state plan.
42           (2) (A) The duration of an agreement shall be perpetual but the
43       agreement may be partially or completely terminated as hereinafter pro-

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  1       vided.
  2           (B) Partial termination of an agreement made and entered into by
  3       the boards of three or more school districts may be accomplished only
  4       upon petition for withdrawal from the agreement made by a contracting
  5       school district to the other contracting school districts and approval by
  6       the state board of written consent to the petition by such other school
  7       districts or upon order of the state board after appeal to it by a school
  8       district from denial of consent to a petition for withdrawal and hearing
  9       thereon conducted by the state board. The state board shall consider all
10       the testimony and evidence brought forth at the hearing and issue an
11       order approving or disapproving withdrawal by the school district from
12       the agreement.
13           (C) Complete termination of an agreement made and entered into
14       by the boards of two school districts may be accomplished upon approval
15       by the state board of a joint petition made to the state board for termi-
16       nation of the agreement by both of the contracting school districts after
17       adoption of a resolution to that effect by each of the contracting school
18       districts or upon petition for withdrawal from the agreement made by a
19       contracting school district to the other contracting school district and
20       approval by the state board of written consent to the petition by such
21       other school district or upon order of the state board after appeal to it by
22       a school district from denial of consent to a petition for withdrawal and
23       hearing thereon conducted by the state board. The state board shall con-
24       sider all the testimony and evidence brought forth at the hearing and
25       issue an order approving or disapproving withdrawal by the school district
26       from the agreement.
27           (D) Complete termination of an agreement made and entered into
28       by the boards of three or more school districts may be accomplished only
29       upon approval by the state board of a joint petition made to the state
30       board for termination of the agreement by not less than 2/3 of the con-
31       tracting school districts after adoption of a resolution to that effect by
32       each of the contracting school districts seeking termination of the agree-
33       ment. The state board shall consider the petition and approve or disap-
34       prove termination of the agreement.
35           (E) The state board shall take such action in approving or disapprov-
36       ing the complete or partial termination of an agreement as the state board
37       deems to be in the best interests of the involved school districts and of
38       the state as a whole in the provision of special education services for
39       exceptional children. Whenever the state board has disapproved the com-
40       plete or partial termination of an agreement, no further action with re-
41       spect to such agreement shall be considered or taken by the state board
42       for a period of not less than three years.
43           (3) An agreement shall designate the sponsoring school district and

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  1       shall provide for a separate fund thereof, to which each contracting dis-
  2       trict shall pay the moneys due from it under the agreement. Any school
  3       district which is a party to an agreement may be designated the sponsoring
  4       district.
  5           (4) An agreement shall specify the method or methods to be em-
  6       ployed for disposing of property upon partial or complete termination.
  7           (5) Within the limitations provided by law, an agreement may be
  8       changed or modified by mutual consent of the contracting school districts.
  9           (6) An agreement shall be subject to change or termination by the
10       legislature.
11           (b) The provisions of this section apply to every agreement entered
12       into under authority of this section after the effective date of this act and
13       to every agreement entered into under this section prior to the effective
14       date of this act, and extant on the effective date of this act, regardless of
15       any provisions in such agreement to the contrary.
16           Sec. 15. K.S.A. 72-970 is hereby amended to read as follows: 72-970.
17       (a) Except as otherwise provided in subsection (b), every state institution
18       shall provide special education and related services for all exceptional
19       children housed and maintained in the state institution and said special
20       education such services shall meet standards and criteria set by the state
21       board in accordance with the state plan and shall be subject to approval
22       by the state board. State institutions may contract with local school dis-
23       tricts and other appropriate agencies or individuals for special education
24       or related services. Prior to the time any state institution enters into a
25       contract with any school district for such services the special education
26       or related services to be provided by such school district shall be approved
27       by the state board.
28           (b) In providing special education or related services to incarcerated
29       children with disabilities, a correctional institution shall be exempt from
30       the requirements of this act to the extent authorized by the federal law.
31           Sec. 16. K.S.A. 72-971 is hereby amended to read as follows: 72-971.
32       (a) In order to obtain data necessary for review of the progress or lack
33       thereof made in special education services for exceptional children and
34       to assess future needs for providing special education services on a more
35       comprehensive, expert, economic and efficient basis, it shall be the duty
36       of the department to conduct an annual survey of the school districts
37       showing the total number of exceptional children within the various cat-
38       egories of exceptionality in the state The state board shall prepare and
39       file such reports as are required by the federal law or this act.
40           (b) The state crippled children's commission School districts and
41       other state agencies having census data on exceptional children shall from
42       time to time as requested furnish such data, as requested, to the depart-
43       ment state board.

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  1           New Sec. 17. (a) The rights of parents of exceptional children shall
  2       include, but not be limited to, the rights specified in this section.
  3           (b) The parents of exceptional children shall have the right to:
  4           (1) Examine all records relating to such child and to participate in
  5       meetings with respect to the identification, evaluation, and educational
  6       placement of the child, and the provision of an a free appropriate public
  7       education to such child, and to obtain an independent educational eval-
  8       uation of the child;
  9           (2) written prior notice whenever an agency: (A) Proposes to initiate
10       or change; or (B) refuses to initiate or change, the identification, evalu-
11       ation, or educational placement of the child, in accordance with subsec-
12       tion (c), or the provision of an a free appropriate public education to the
13       child;
14           (3) receive the notice required by provision (2) in their native lan-
15       guage, unless it clearly is not feasible to do so;
16           (4) present complaints with respect to any matter relating to the iden-
17       tification, evaluation, or educational placement of the child, or the pro-
18       vision of an a free appropriate public education to the child, subject to
19       the requirements that the parent, or the attorney representing the parent
20       or child, provides notice to the agency that includes: (A) The name of the
21       child, the address of the residence of the child, and the name of the school
22       the child is attending; (B) a description of the nature of the problem of
23       the child relating to such proposed initiation or change, including facts
24       relating to such problem; and (C) a proposed resolution of the problem
25       to the extent known and available to the parents at the time;
26           (5) request medication mediation in accordance with this act;
27           (6) consent, or refuse to consent, to the evaluation or, reevaluation
28       or the initial placement of their child and to any substantial change
29       in services to, or placement of, their child;
30           (7) be members of any group that makes decisions on the educational
31       placement of their child;
32           (8) demand that their child remain in the child's current educational
33       placement pending the outcome of a due process hearing, except as oth-
34       erwise provided by federal law and this act;
35           (9) request a due process hearing in regard to any complaint filed in
36       accordance with provision (4) of this subsection, or as authorized in sec-
37       tion 31, and amendments thereto;
38           (10) appeal to the state board any adverse decision rendered by a
39       hearing officer in a local due process hearing;
40           (11) appeal to state or federal court any adverse decision rendered
41       by a review officer in a state-level due process appeal; and
42           (12) recover attorney fees, in accordance with the federal law, if they
43       are the prevailing parties in a due process hearing or court action; how-

SB 591--Am.

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  1       ever, only a court shall have the authority to award attorney fees,
  2       and such fees may be reduced or denied in accordance with federal
  3       law.
  4           (c) The state board shall develop a model form to assist parents in
  5       filing a complaint in accordance with subsection (b)(4).
  6           (d) The state board shall develop, and thereafter amend as necessary,
  7       and distribute for use by agencies, a list of the rights available to the
  8       parents of exceptional children under the federal law and this act. The
  9       list shall be made available in various languages and be written so as to
10       be easily understandable by parents.
11           (e) A list of the rights available to the parents of exceptional children
12       shall be given to the parents, at a minimum: (A) Upon initial referral for
13       evaluation and upon reevaluation of the child; (B) upon each notification
14       of an individualized education program meeting; and (C) upon registra-
15       tion of a complaint under subsection (b)(4).
16           New Sec. 18. When a child with a disability reaches the age of 18,
17       except for a child with a disability who has been determined to be incom-
18       petent under state law:
19           (a) An agency shall provide to both the individual and to the individ-
20       ual's parents any notice required by this act;
21           (b) all other rights accorded to parents under this act transfer to the
22       individual;
23           (c) the agency shall notify the individual and the parents of the trans-
24       fer of rights; and
25           (d) all rights accorded to parents under this act transfer to the indi-
26       vidual if incarcerated in an adult or juvenile federal, state or local correc-
27       tional institution.
28           New Sec. 19. The notice required by subsection (b)(2) of section 17,
29       and amendments thereto, shall include:
30           (a) A description of the action proposed or refused by the agency;
31           (b) an explanation of why the agency proposes or refuses to take the
32       action;
33           (c) a description of any other options that the agency considered and
34       the reasons those options were rejected;
35           (d) a description of each evaluation procedure, test, record, or report
36       the agency used as a basis for the proposed or refused action;
37           (e) a description of any other factors that are relevant to the agency's
38       proposal or refusal;
39           (f) a statement that the parents have protection under the procedural
40       safeguards of this act and, if the notice is not an initial referral for eval-
41       uation, the means by which a copy of the procedural safeguards can be
42       obtained; and
43           (g) sources for parents to contact to obtain assistance in understand-

SB 591--Am.

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  1       ing the provisions of the federal law and this act.
  2           Sec. 20. K.S.A. 72-973 is hereby amended to read as follows: 72-973.
  3       (a) The Any due process hearing provided for in K.S.A. 72-972, and
  4       amendments thereto, under this act shall be held at a time and place
  5       reasonably convenient to the lawful custodian parent of the involved child,
  6       shall be a closed hearing unless the lawful custodian parent requests an
  7       open hearing, and shall be conducted in accordance with rules and reg-
  8       ulations relating thereto adopted by the agency. Such rules and regula-
  9       tions shall afford procedural due process, including the following:
10           (1) The right of the parties to have counsel or an advisor of their own
11       choice present and to receive the advice of such counsel or other advisor
12       whom they may select;
13           (2) the right of the child and the lawful custodian parent of the child
14       to be present at the hearing;
15           (3) the right of the child, the lawful custodian parent of the child
16       and their counsel or advisor to hear or read a full report of the testimony
17       of witnesses responsible for recommending the proposed action and of
18       any other material witnesses;
19           (4) the right of the parties and their counsel or advisor to confront
20       and cross-examine witnesses who appear in person at the hearing, either
21       voluntarily or as a result of the issuance of a subpoena;
22           (5) the right of the parties to present witnesses in person or their
23       testimony by affidavit, including expert medical, psychological or educa-
24       tional testimony;
25           (6) the right of the child and the lawful custodian parent, on behalf
26       of the child, to testify and give reasons in opposition to the proposed
27       action;
28           (7) the right of the parties to prohibit the presentation of any evi-
29       dence at the hearing which has not been disclosed to the opposite party
30       at least five days prior to the hearing, including any evaluations completed
31       by that date and any recommendations based on such evaluations;
32           (8) the right of the parties to have an orderly hearing;
33           (9) the right of the child to a fair and impartial decision based on
34       substantial evidence; and
35           (10) the right of the parties to have a record of the hearing made by
36       mechanical or electronic recording or by an official court reporter written
37       or, at the option of the parent, an electronic, verbatim record of the hear-
38       ing.
39           (b) The Each due process hearing, other than an expedited hearing
40       under section 31 or section 32, and amendments thereto, shall be held
41       not later than 30 days from the date on which the request therefor is
42       received or, if no request is received, not later than 30 days from the date
43       by which the request should have been made, or on which objection, or

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  1       revocation of consent, to the proposed action is received by the agency.
  2       The child and the lawful custodian parent of the child shall be notified
  3       in writing of the time and place of the hearing at least five days prior
  4       thereto. At any reasonable time prior to the hearing, the lawful custodian
  5       parent and the counsel or advisor of the involved child shall be given
  6       access to all records, tests, reports or clinical evaluations relating to the
  7       proposed action.
  8           (c) (1) Except as otherwise provided in section 30 32, and amend-
  9       ments thereto, during the pendency of any proceedings conducted under
10       this act, unless the agency and parent otherwise agree, the child shall
11       remain in the then-current educational placement of such child.
12           (2) If proceedings arise in connection with the initial admission of the
13       child to school, the child shall be placed in the appropriate regular edu-
14       cation classroom or program in compliance with K.S.A. 72-1111, and
15       amendments thereto, unless otherwise directed pursuant to section 30,
16       and amendments thereto.
17           (c) (d) Subject to the provisions of K.S.A. 72-973a, and amendments
18       thereto, the agency shall appoint a hearing officer for the purpose of
19       conducting the hearing. Members of the state board, the secretary of
20       social and rehabilitation services, the commissioner of the juvenile justice
21       authority, and members of any board or agency involved in the education
22       of the child shall not serve as hearing officers. No hearing officer shall be
23       any person (1) responsible for recommending the proposed action upon
24       which the hearing is based, (2) any person having a personal or profes-
25       sional interest which would conflict with objectivity in the hearing, or (3)
26       any person who is an employee of the state board or any agency involved
27       in the education of the child. A person shall not be considered an em-
28       ployee of the agency solely because the person is paid by the agency to
29       serve as a hearing officer. Each agency shall maintain a list of hearing
30       officers. Such list shall include a statement of the qualifications of each
31       hearing officer. Each hearing officer and each state review officer shall
32       be qualified in accordance with standards and requirements established
33       by the state board and shall have satisfactorily completed a training pro-
34       gram conducted or approved by the state board. Whenever a hearing
35       officer conducts any hearing, such hearing officer shall render a decision
36       on the matter not later than 10 days after the conclusion of the hearing
37       and shall prepare a written report thereon to the agency providing for
38       the hearing, or at the option of the parent, an electronic decision, includ-
39       ing findings of fact and conclusions. Any action of the hearing officer in
40       accordance with this subsection shall be final, subject to appeal and review
41       in accordance with K.S.A. 72-974, and amendments thereto this act.
42           Sec. 21. K.S.A. 72-973a is hereby amended to read as follows: 72-
43       973a. Prior to appointing any hearing officer to conduct a due process

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  1       hearing provided for in K.S.A. 72-972, and amendments thereto under
  2       this act, the agency shall make its list of hearing officers available to the
  3       lawful custodian parent of the involved child and shall inform the lawful
  4       custodian parent of the right to request disqualification of any or all of
  5       the hearing officers on the list and to request the state board to appoint
  6       a hearing officer in accordance with the procedure provided in this sub-
  7       section. If the lawful custodian parent does not request disqualification
  8       of all of the hearing officers give written notice of disqualification to
  9       the agency within five days after the list is received by the parent,
10       the agency may appoint from its list any hearing officer whom the lawful
11       custodian parent has not requested to be disqualified. If the lawful cus-
12       todian parent requests disqualification of all of the hearing officers and
13       requests the appointment of a hearing officer by the state board, the
14       agency shall immediately notify the state board and shall request the state
15       board to provide a list of the names and qualifications of five prospective
16       hearing officers. The agency and the lawful custodian parent of the in-
17       volved child may each remove two names from the list. The agency may
18       remove any name or names it wishes to remove and then allow the parent
19       the opportunity to remove names from the list. The agency shall inform
20       the state board of the name or names remaining on the list and the state
21       board shall appoint a hearing officer therefrom appoint a hearing offi-
22       cer.
23           Sec. 22. K.S.A. 1997 Supp. 72-974 is hereby amended to read as
24       follows: 72-974. (a) Written notice of the result of any hearing provided
25       for under K.S.A. 72-972, and amendments thereto, this act shall be given
26       to the agency providing for the hearing and shall be sent by restricted
27       certified mail to the affected child or the lawful custodian parent, counsel
28       or advisor of the child within 24 hours after the result is determined. Such
29       decision, after deletion of any personally identifiable information con-
30       tained therein, shall also be transmitted to the state board which shall
31       make the decision available to the state advisory council for special edu-
32       cation and to the public upon request.
33           (b) (1) Any party to a due process hearing provided for under K.S.A.
34       72-972, and amendments thereto, this act may appeal the decision to the
35       state board by filing a written notice of appeal with the commissioner of
36       education not later than 30 calendar days after receiving the date of the
37       postmark on the written notice specified in subsection (a). Any such hear-
38       ing and decision therein shall be reviewed by a reviewing A review officer
39       appointed by the state board, shall conduct an impartial review of such
40       decision. Except in the case of a review of an expedited hearing under
41       sections 31 or 32, and amendments thereto, the The review officer shall
42       render a decision not later than 20 calendar days after the notice of appeal
43       is filed. The reviewing review officer shall: (A) Examine the record of the

SB 591--Am.

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  1       hearing; (B) determine whether the procedures at the hearing were in
  2       accordance with the requirements of due process; (C) afford the parties
  3       an opportunity for oral or written argument, or both, at the discretion of
  4       the reviewing review officer; (D) seek additional evidence if necessary;
  5       (E) render a an independent decision on any such appeal not later than
  6       five days after completion of the review; and (F) send written notice of
  7       the decision on any such appeal to the parties and to the state board.
  8           (2) For the purpose of reviewing any hearing and decision under
  9       provision (1), the state board may appoint one or more reviewing review
10       officers. Any such appointment may apply to a review of a particular
11       hearing or to reviewing a set or class of hearings as specified by the state
12       board in making the appointment. Whenever a reviewing officer ap-
13       pointed under authority of this subsection conducts any review, the re-
14       viewing officer shall decide the matter by affirming, reversing or modi-
15       fying the decision from which the appeal was taken and shall prepare a
16       written report thereon to the state board.
17           (c) Any action of a reviewing review officer pursuant to this section
18       is subject to review in accordance with the act for judicial review and civil
19       enforcement of agency actions or to an action in federal court as allowed
20       by the federal law.
21        (d) Any action in federal court shall be filed within 30 days after
22       service of the reviewing officer's decision.
23           Sec. 23. K.S.A. 72-975 is hereby amended to read as follows: 72-975.
24       (a) Any person conducting a hearing or review under article 9 of chapter
25       72 of Kansas Statutes Annotated this act may administer oaths for the
26       purpose of taking testimony therein.
27           (b) Any person conducting a hearing or review under article 9 of
28       chapter 72 of Kansas Statutes Annotated this act or any party to any such
29       hearing or review may request the clerk of the district court to issue
30       subpoenas for the attendance and testimony of witnesses and the pro-
31       duction of all relevant records, tests, reports and evaluations in the same
32       manner provided for the issuance of subpoenas in civil actions pursuant
33       to K.S.A. 60-245, and amendments thereto.
34           (c) Any person conducting a hearing or review under article 9 of
35       chapter 72 of Kansas Statutes Annotated this act, at the request of either
36       party, may grant specific extensions of time beyond the limitations spec-
37       ified in K.S.A. 72-973 and 72-974, and amendments thereto this act.
38        (d) Any person conducting a hearing under this act shall con-
39       sider any request for discovery in accordance with the provisions
40       of K.S.A. 77-522, and amendments thereto, except that depositions
41       of witnesses who will be available for the hearing shall not be al-
42       lowed.
43           (d) (e) Every hearing and review under article 9 of chapter 72 of

SB 591--Am.

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  1       Kansas Statutes Annotated this act shall be provided for at no cost to the
  2       child or the lawful custodian parent of the child. The costs of any hearing
  3       provided for by a board shall be paid by the school district.
  4           (e) (f) Any reviewing review officer conducting a review under sub-
  5       section (b) of K.S.A. 72-974, and amendments thereto, this act may hold
  6       a hearing to receive additional evidence. Every such hearing shall be
  7       conducted in accordance with requirements which are consonant with
  8       the requirements of subsection (a) of K.S.A. 72-973, and amendments
  9       thereto this act.
10           (f) No action described in subsection (a) of K.S.A. 72-972, and
11       amendments thereto, shall be taken during the pendency of any pro-
12       ceedings conducted pursuant to the provisions of K.S.A. 72-972 to 72-
13       975, inclusive, and amendments thereto, except that the proposed action
14       may be taken before all such proceedings have been completed if the
15       lawful custodian of the involved child gives written consent thereto.
16           Sec. 24. K.S.A. 72-976 is hereby amended to read as follows: 72-976.
17       (a) A Each school district shall not be required, to keep an exceptional
18       child in regular school programs or to provide such exceptional child with
19       special education services for exceptional children when it is determined
20       pursuant to the provisions of K.S.A. 72-972 to 72-975, inclusive, and
21       amendments thereto, that the education of such child cannot be satisfac-
22       torily achieved thereby and that such child requires housing, maintenance
23       and special education services provided at a state institution the maximum
24       extent appropriate, to educate children with disabilities with children who
25       are not disabled, and to provide special classes, separate schooling or for
26       the removal of children with disabilities from the regular education en-
27       vironment only when the nature or severity of the disability of the child
28       is such that education in regular classes with supplementary aids and
29       services cannot be achieved satisfactorily.
30           (b) Nothing in this section shall be construed to authorize the state
31       board or any board to function as an admitting agency to the state insti-
32       tutions or to limit or supersede or in any manner affect the requirements
33       of each board to comply with the provisions of K.S.A. 72-933 and 72-966,
34       and amendments thereto, to provide special education services for each
35       exceptional child in the school district unless and until such child meets
36       the criteria for admission to a state institution and is so admitted by the
37       state institution. Each state institution shall publish annually the criteria
38       for admission to such state institution and shall furnish such criteria to
39       each board upon request therefor.
40           Sec. 25. K.S.A. 72-977 is hereby amended to read as follows: 72-977.
41       (a) Except as otherwise provided in this section, when a school district or
42       a state institution provides special education services for exceptional chil-
43       dren as required by this act, and a determination has been made as pro-

SB 591--Am.

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  1       vided in K.S.A. 72-972 to 72-975, inclusive, and amendments thereto,
  2       that a child is an exceptional child and special education services are
  3       necessary for such child, it shall be the duty of the lawful custodian parent
  4       of such each exceptional child to require such child to enroll for and
  5       attend school to receive the special education and related services which
  6       are indicated by such determination on the child's IEP or the to provide
  7       for such services privately.
  8           (b) The provisions of subsection (a) do not apply to gifted children
  9       or to lawful custodians parents of gifted children.
10           (c) Failure of a parent to comply with the provisions of subsection (a)
11       shall cause the child to be deemed a child in need of care under the code
12       for care of children.
13           Sec. 26. K.S.A. 1997 Supp. 72-978 is hereby amended to read as
14       follows: 72-978. (a) (1) In each school year, in accordance with appropri-
15       ations for special education and related services provided under this act,
16       each school district which has provided special education or related serv-
17       ices in compliance with the requirements of the state plan and the pro-
18       visions of this act shall be entitled to receive:
19           (A) Reimbursement for actual travel allowances paid to special teach-
20       ers at not to exceed the rate specified under K.S.A. 75-3203, and amend-
21       ments thereto, for each mile actually traveled during the school year in
22       connection with duties in providing special education or related services
23       for exceptional children; such reimbursement shall be computed by the
24       state board by ascertaining the actual travel allowances paid to special
25       teachers by the school district for the school year and shall be in an
26       amount equal to 80% of such actual travel allowances;
27           (B) reimbursement in an amount equal to 80% of the actual travel
28       expenses incurred for providing transportation for exceptional children to
29       special education or related services; such reimbursement shall not be
30       paid if such child has been counted in determining the transportation
31       weighting of the district under the provisions of the school district finance
32       and quality performance act;
33           (C) reimbursement in an amount equal to 80% of the actual expenses
34       incurred for the maintenance of an exceptional child at some place other
35       than the residence of such child for the purpose of providing special
36       education or related services; such reimbursement shall not exceed $600
37       per exceptional child per school year; and
38           (D) after subtracting the amounts of reimbursement under (A), (B)
39       and (C) from the total amount appropriated for special education and
40       related services under this act, an amount which bears the same propor-
41       tion to the remaining amount appropriated as the number of full-time
42       equivalent special teachers who are qualified to provide special education
43       or related services to exceptional children and are employed by the school

SB 591--Am.

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  1       district for approved special education or related services bears to the
  2       total number of such qualified full-time equivalent special teachers em-
  3       ployed by all school districts for approved special education or related
  4       services.
  5           (2) Each special teacher who is a paraprofessional qualified to assist
  6       in the provision of special education or related services to exceptional
  7       children shall be counted as 2/5 full-time equivalent special teacher who
  8       is qualified to provide special education or related services to exceptional
  9       children.
10           (b) (1) No special teacher in excess of the number of special teachers
11       necessary to comply with the ratio of special teacher to exceptional chil-
12       dren prescribed by the state board for the school district shall be counted
13       in making computations under this section.
14           (2) No time spent by a special teacher in connection with duties per-
15       formed under a contract entered into by the Atchison juvenile correc-
16       tional facility, the Beloit juvenile correctional facility, the Larned juvenile
17       correctional facility or the Topeka juvenile correctional facility and a
18       school district for the provision of special education or related services
19       by such state institution shall be counted in making computations under
20       this section.
21           Sec. 27. K.S.A. 72-979 is hereby amended to read as follows: 72-979.
22       (a) Payments under this act shall be made in a the manner to be and at
23       such times during each school year as are determined by the state board.
24       In the event If any district is paid more than it is entitled to receive under
25       any distribution made under this act, the state board shall notify the dis-
26       trict of the amount of such overpayment, and such district shall remit the
27       same to the state board. The state board shall remit any moneys so re-
28       ceived to the state treasurer, and the state treasurer shall deposit the same
29       in the state treasury to the credit of the general fund. If any such district
30       fails so to remit, the state board shall deduct the excess amounts so paid
31       from future payments becoming due to such district. In the event If any
32       district is paid less than the amount to which it is entitled under any
33       distribution made under this act, the state board shall pay the additional
34       amount due at any time within the school year in which the underpayment
35       was made or within sixty (60) 60 days after the end of such school year.
36           (b) The state board shall prescribe all forms necessary for reporting
37       under this act. Funds shall be distributed to the respective boards as soon
38       as the state board deems practicable.
39           (c) Every board shall make such periodic and special reports of sta-
40       tistical and financial information to the state board as it may request in
41       order to carry out its responsibilities under this act.
42           Sec. 28. K.S.A. 72-981 is hereby amended to read as follows: 72-981.
43       The department, upon request, shall from time to time as requested:

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  1           (1) Give technical advice and assistance to any board agency in con-
  2       nection with the establishment and maintenance of programs of screen-
  3       ing, diagnosis and certification of special education and related services
  4       for exceptional children;
  5           (2) make recommendations to any board agency concerning appro-
  6       priate special education or related services for to be provided to excep-
  7       tional children; and
  8           (3) consider and give advice to any board agency concerning prob-
  9       lems encountered by such board agency in complying with the require-
10       ments of K.S.A. 72-933 and 72-966 this act.
11           Sec. 29. K.S.A. 1997 Supp. 72-983 is hereby amended to read as
12       follows: 72-983. (a) In each school year, commencing with the 1994-95
13       school year, to the extent that appropriations are available, each school
14       district which has provided special education and related services for an
15       exceptional child who uniquely or so severely differs from other excep-
16       tional children in physical, mental, social, emotional or educational char-
17       acteristics that the costs attributable to the provision of special education
18       services for the child are whose IEP provides for services which cost in
19       excess of $25,000 for the school year is shall be eligible to receive a grant
20       of state moneys in an amount equal to 75% of that portion of the costs,
21       incurred by the district in the provision of special education and related
22       services for the child, that is in excess of $25,000.
23           (b) In order to be eligible for a grant of state moneys provided for by
24       subsection (a), a school district shall submit to the state board of education
25       an application for a grant and a description of the special education and
26       related services provided and the name or names of the child or children
27       for whom provided. The application and description shall be prepared in
28       such form and manner as the state board shall require and shall be sub-
29       mitted at a time to be determined and specified by the state board. Ap-
30       proval by the state board of applications for grants of state moneys is
31       prerequisite to the award of grants.
32           (c) Each school district which is awarded a grant under this section
33       shall make such periodic and special reports of statistical and financial
34       information to the state board as it may request.
35           (d) All moneys received by a school district under authority of this
36       section shall be deposited in the special education fund of the school
37       district. Amounts received under this section and deposited in the special
38       education fund shall be used exclusively to reimburse the school district,
39       in part, for the excessive amount expended in providing special education
40       and related services for uniquely or severely different exceptional chil-
41       dren.
42           (e) The state board of education shall:
43           (1) Prescribe and adopt criteria for identification of uniquely or se-

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  1       verely different exceptional children and for and determination of exces-
  2       sive costs attributable to the provision of special education and related
  3       services for such children under this section;
  4           (2) approve applications of school districts for grants;
  5           (3) determine the amount of grants and be responsible for payment
  6       of such grants to school districts; and
  7           (4) prescribe all forms necessary for reporting under this section.
  8           (f) If the amount of appropriations for the payment of grants under
  9       this section is insufficient to pay in full the amount each school district is
10       determined to be eligible to receive for the school year, the state board
11       shall prorate the amount appropriated among all school districts which
12       are eligible to receive grants of state moneys in proportion to the amount
13       each school district is determined to be eligible to receive.
14           New Sec. 30. (a) School personnel may order a change in the place-
15       ment of a child with a disability:
16           (1) To an appropriate interim alternative educational setting or other
17       setting, or the short-term suspension of the child; or
18           (2) to an appropriate interim alternative educational setting for not
19       more than 45 calendar days if: (A) The child carries a weapon to school
20       or to a school function under the jurisdiction of the agency; or (B) the
21       child knowingly possesses or uses illegal drugs or sells or solicits the sale
22       of a controlled substance while at school or a school function under the
23       jurisdiction of the agency.
24           (b) The alternative educational setting described in subsection (a)(2)
25       shall be determined by the IEP team.
26           (c) Either before, or not later than 10 days after, taking a disciplinary
27       action as described in subsection (a):
28           (1) If the agency did not conduct a functional behavioral assessment
29       and implement a behavioral intervention plan for such child before the
30       behavior that resulted in the disciplinary action, the agency shall convene
31       an IEP meeting to develop an intervention plan to address that behavior;
32       or
33           (2) if the child already has a behavioral intervention plan, the IEP
34       team shall review the plan and modify it, as necessary, to address the
35       behavior.
36           (d) A hearing officer who meets the qualifications specified in this
37       act may order a change in the placement of a child with a disability to an
38       appropriate interim alternative educational setting for not more than 45
39       calendar days if the hearing officer:
40           (1) Determines that the agency has demonstrated, by substantial ev-
41       idence, that maintaining the current placement of such child is substan-
42       tially likely to result in injury to the child or to others;
43           (2) considers the appropriateness of the child's current placement;

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  1           (3) considers whether the agency has made reasonable efforts to min-
  2       imize the risk of harm in the child's current placement, including the use
  3       of supplementary aids and services; and
  4           (4) determines that the interim alternative educational setting meets
  5       the requirements of subsection (e).
  6           (e) Any interim alternative educational setting in which a child is
  7       placed under this section shall:
  8           (1) Be selected so as to enable the child to continue to participate in
  9       the general curriculum, although in another setting, and to continue to
10       receive those services and modifications, including those described in the
11       child's current IEP, that will enable the child to meet the goals set out
12       in the IEP; and
13           (2) include services and modifications designed to address the be-
14       havior so that it does not recur.
15           (f) If a disciplinary action is contemplated as described in subsection
16       (a) for a behavior of a child with a disability, or if a disciplinary action
17       involving a change of placement for more than 10 school days is contem-
18       plated for a child with a disability who has engaged in other behavior that
19       violated any rule or code of conduct of the agency that applies to all
20       children:
21           (1) Not later than the date on which the decision to take that action
22       is made, the parents shall be notified of that decision and of all procedural
23       safeguards accorded afforded under this section 31; and
24           (2) immediately, if possible, but in no case later than 10 school days
25       after the date on which the decision ot to take that action is made, a
26       review, as specified in subsection (g), shall be conducted of the relation-
27       ship between the child's disability and the behavior subject to the disci-
28       plinary action.
29           (g) Any review described in subsection (f)(2) shall be conducted by
30       the child's IEP team and other qualified personnel. In carrying out such
31       a review, the IEP team may determine that the behavior of the child was
32       not a manifestation of such child's disability only if the IEP team:
33           (1) First considers, in terms of the behavior subject to disciplinary
34       action, all relevant information, including: (A) evaluation and diagnostic
35       results, including such results or other relevant information supplied by
36       the parents of the child; (B) observations of the child; and (C) the child's
37       IEP and placement; and
38           (2) then determines that: (A) In relationship to the behavior subject
39       to disciplinary action, the child's IEP and placement were appropriate
40       and the special education services, supplementary aids and services, and
41       behavior intervention strategies were provided consistent with the child's
42       IEP and placement; (B) the child's disability did not impair the ability of
43       the child to understand the impact and consequences of the behavior

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  1       subject to disciplinary action; and (C) the child's disability did not impair
  2       the ability of the child to control the behavior subject to disciplinary ac-
  3       tion.
  4           (h) (1) If the result of the review under subsection (g) is a determi-
  5       nation that the behavior of the child was not a manifestation of the child's
  6       disability, the relevant disciplinary procedures applicable to children with-
  7       out disabilities may be applied to the child in the same manner in which
  8       they would be applied to children without disabilities, except that an ap-
  9       propriate public education must continue to be provided to the child
10       during the period of disciplinary action.
11           (2) If the agency initiates disciplinary procedure applicable to all chil-
12       dren, the agency shall ensure that the special education and disciplinary
13       records of the child are transmitted for consideration by the person or
14       persons making the final determination regarding the disciplinary action.
15           (j) For purposes of this section, the following definitions apply:
16           (1) ``Controlled substance'' means a drug or other substance identi-
17       fied under schedules I, II, III, IV, or V in 21 U.S.C. 812(c);
18           (2) ``illegal drug'' means a controlled substance but does not include
19       such a substance that is legally possessed or used under the supervision
20       of a licensed health-care professional or that is legally possessed or used
21       under any other authority under any federal or state law;
22           (3) ``substantial evidence'' means beyond a preponderance of the ev-
23       idence;
24           (4) ``weapon'' has the meaning ascribed thereto by subsection (h) of
25       K.S.A. 1997 Supp. 72-89a01 and amendments thereto means a weapon,
26       device, instrument, material, or substance, animate or inanimate,
27       that is used for, or is readily capable of, causing death or serious
28       bodily injury, except that such term does not include a pocket knife
29       with a blade of less than 21/2 inches in length.
30           New Sec. 31. (a)(1) If a child's parent disagrees with a determination
31       under section 30, and amendments thereto, that the child's behavior was
32       not a manifestation of the child's disability or with any decision regarding
33       placement under that section, the parent may request a due process hear-
34       ing.
35           (2) The agency shall arrange for an expedited hearing in any case
36       described in this section when requested by a parent.
37           (b) In reviewing a decision with respect to the manifestation deter-
38       mination, the hearing officer shall determine whether the agency has
39       demonstrated that the child's behavior was not a manifestation of such
40       child's disability consistent with the requirements of subsection (g) of
41       section 30, and amendments thereto.
42           (2) In reviewing a decision under subsection (a)(2) of section 30, and
43       amendments thereto, to place the child in an interim alternative educa-

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  1       tional setting, the hearing officer shall apply the standards set out in sub-
  2       section (d) of section 30, and amendments thereto.
  3           (c) The expedited Any hearing provided for in section 30 or in this
  4       section shall be conducted:
  5           (1) By a due process hearing officer appointed by the state board;
  6       and
  7           (2) within 10 business days of the date of the request for the hearing;
  8       and
  9           (3) in accordance with rules and regulations adopted by the state
10       board.
11           New Sec. 32. (a) If a parent requests a hearing under section 31, and
12       amendments thereto, the child shall remain in the interim alternative
13       educational setting pending the decision of the hearing officer in regard
14       to the manifestation determination or the interim placement decision, or
15       until the expiration of the 45-day time period described in subsection
16       (a)(2) of section 30, and amendments thereto, whichever occurs first,
17       unless the parent and the agency agree otherwise.
18           (b) Except as provided in subsection (c), if a child is placed in an
19       interim alternative educational setting pursuant to section 30, and amend-
20       ments thereto, and school personnel propose to change the child's place-
21       ment after expiration of the interim alternative placement, during the
22       pendency of any proceeding to challenge the proposed change in place-
23       ment, the agency shall return the child to the child's placement prior to
24       the interim alternative educational setting.
25           (c) (1) If the agency maintains that it is dangerous for the child to be
26       returned to the child's placement prior to removal to the interim alter-
27       native education setting during the pendency of due process proceedings,
28       the agency may request an expedited hearing in regard to the proposed
29       change in placement.
30           (2) In determining whether the child may be placed in the alternative
31       education setting or in another appropriate placement ordered by the
32       hearing officer, the hearing officer shall apply the standards set out in
33       subsection (d) of section 30, and amendments thereto.
34           New Sec. 33. (a) A child who has not been determined to be eligible
35       for special education and related services under this act and who has
36       engaged in behavior that violated any rule or code of conduct of the school
37       district, including any behavior described in section 30 and amendments
38       thereto, may assert any of the protections provided for in this act if the
39       school district had knowledge, as determined in accordance with this sec-
40       tion, that the child was a child with a disability before the behavior that
41       precipitated the disciplinary action occurred.
42           (b) A school district shall be deemed to have knowledge that a child
43       is a child with a disability if:

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  1           (1) The parent of the child has expressed concern in writing, unless
  2       the parent is illiterate or has a disability that prevents compliance with
  3       the requirements contained in this clause, to personnel of the appropriate
  4       educational agency that the child is in need of special education and
  5       related services;
  6           (2) the behavior or performance of the child demonstrates the need
  7       for such services;
  8           (3) the parent of the child previously has requested an evaluation of
  9       the child; or
10           (4) the teacher of the child, or other personnel of the school district,
11       previously has expressed concern about the behavior or performance of
12       the child to the director of special education of such school district or to
13       other personnel of the district.
14           (c) (1) Subject to provision (2) of this subsection, if a school district
15       does not have knowledge that a child is a child with a disability prior to
16       taking disciplinary action against the child, the child may be subjected to
17       the same disciplinary action as is applied to children without disabilities
18       who engage in comparable behaviors.
19           (2) If a request is made for an evaluation of a child during the time
20       period in which the child is subjected to disciplinary action described by
21       this act, an evaluation shall be conducted in an expedited manner. If the
22       child is determined to be a child with a disability, taking into consideration
23       information from the evaluation conducted by the school district and in-
24       formation provided by the parents, the school district shall provide special
25       education and related services in accordance with the provisions of this
26       act, except that, pending the results of the evaluation, the child shall
27       remain in the educational placement determined by school authorities,
28       which may be long-term suspension or expulsion from school.
29           New Sec. 34. (a) Nothing in this act shall be construed to prohibit
30       an agency from reporting a crime committed by a child with a disability
31       to appropriate authorities or to prevent state or local law enforcement
32       and judicial authorities from exercising their responsibilities with regard
33       to the application of federal, state, or local law to crimes committed by a
34       child with a disability.
35           (b) An agency reporting a crime committed by a child with a disability
36       shall ensure that copies of the special education and disciplinary records
37       of the child are transmitted for consideration by the appropriate author-
38       ities to whom it reports the crime.
39        New Sec. 35. (a) The state board shall establish and implement
40       procedures to allow agencies and parents to resolve disputes
41       through a mediation process which, at a minimum, shall be avail-
42       able whenever a due process hearing is requested under this act.
43           (b) The procedures adopted shall ensure that the mediation pro-

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  1       cess is:
  2           (1) Voluntary on the part of the parties;
  3           (2) not used to deny or delay a parent's right to a due process
  4       hearing, or to deny any other rights afforded under this act; and
  5           (3) conducted by a qualified and impartial mediator who is
  6       trained in effective mediation techniques.
  7           (c) The procedures may allow an agency to establish procedures
  8       to require parents who choose not to use the mediation process to
  9       meet, at a time and location convenient to the parents, with a dis-
10       interested party who is under contract with:
11           (1) A parent training and information center or community par-
12       ent resource center in the state; or
13           (2) an appropriate alternative dispute resolution entity, to en-
14       courage to use, and explain the benefits, of the mediation process
15       to the parents.
16           (d) The state board shall maintain a list of individuals who are
17       qualified mediators and knowledgeable in laws and regulations re-
18       lating to the provision of special education and related services and
19       shall establish procedures for the appointment of a mediator to help
20       resolve disputes between the parties.
21           (e) The state board shall bear the cost of the mediation process,
22       including the costs of meetings described in subsection (c).
23           (f) Each session in the mediation process shall be scheduled in
24       a timely manner and shall be held in a location that is convenient
25       to the parties to the dispute.
26           (g) An agreement reached by the parties to the dispute in the
27       mediation process shall be set forth in a written mediation agree-
28       ment.
29           (h) Discussions that occur during the mediation process shall
30       be confidential and may not be used as evidence in any subsequent
31       due process hearings or civil proceedings and the parties to the
32       mediation process may be required to sign a confidentiality pledge
33       prior to the commencement of such process.
34           Sec. 35 36. K.S.A. 38-1513a is hereby amended to read as follows:
35       38-1513a. (a) When the court has granted legal custody of a child in a
36       hearing under the Kansas code for care of children to an agency, associ-
37       ation or individual, the custodian, or an agent designated by the custodian,
38       shall have authority to make educational decisions for the child if the
39       parents of the child are unknown or unavailable. When the custodian of
40       the child is the secretary, and the parents of the child are unknown or
41       unavailable, and the child appears to be an exceptional child who requires
42       special education services, the secretary shall immediately notify the state
43       board of education, or a designee of the state board, and the school district

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  1       in which the child is residing that the child is in need of an education
  2       advocate. As soon as possible after notification by the secretary of the
  3       need by a child of an education advocate, the state board of education,
  4       or its designee, shall appoint an education advocate for the child.
  5           (b) As used in this section, the terms exceptional child, special edu-
  6       cation services, and education advocate have the meanings respectively
  7       ascribed thereto in the special education for exceptional children act.
  8           Sec. 36 37. K.S.A. 1997 Supp. 72-53,109 is hereby amended to read
  9       as follows: 72-53,109. (a) Subject to the provisions of subsection (b), no
10       school district shall be required to provide any person, who is 16 years of
11       age or older, has been prosecuted as an adult, convicted of a crime, and
12       incarcerated in a county jail or state correctional institution, with an op-
13       portunity to attend school at a school facility operated by the school dis-
14       trict for the period of time the person is incarcerated, nor shall any school
15       district be required to provide any such person with educational services
16       at the county jail or state correctional institution in which the person is
17       incarcerated.
18           (b) The provisions of subsection (a) do not apply to any person who
19       is under 18 21 years of age and who, immediately prior to conviction and
20       incarceration, was determined to be an exceptional child, except for an
21       exceptional child who is determined to be a gifted child, a child with a
22       disability for whom an individualized education program had been de-
23       veloped and effectuated under the provisions of the special education for
24       exceptional children act.
25           Sec. 37 38. K.S.A. 38-1513a, 72-933, 72-961, 72-963, 72-963a, 72-
26       963b, 72-963c, 72-964, 72-965, 72-966, 72-967, 72-969, 72-970, 72-971,
27       72-972, 72-973, 72-973a, 72-975, 72-976, 72-977, 72-979, 72-980 and, 72-
28       981, 72-5392, 72-5393 and 72-5394 and K.S.A. 1997 Supp. 72-962, 72-
29       968, 72-974, 72-978, 72-983 and 72-53,109 are hereby repealed.
30           Sec. 38 39. This act shall take effect and be in force from and after
31       its publication in the statute book.
32