As Amended by House Committee

         
As Further Amended by Senate Committee

         
As Amended by Senate Committee
         
Session of 1999
         
SENATE BILL No. 129
         
By Committee on Education
         
1-25
         

12             AN  ACT concerning exceptional children; relating to the provision of
13             special education and related services; amending K.S.A. 38-1513a, 72-
14             961, 72-963, 72-963a, 72-963c, 72-964, 72-965, 72-966, 72-967, 72-
15             970, 72-971, 72-973, 72-973a, 72-975, 72-976, 72-977, 72-979 and, 72-
16             981, 72-5392, 72-5393 and 72-5394 and K.S.A. 1998 Supp. 72-962,
17             72-968, 72-974, 72-978, 72-983, 72-53,109 and 72-8902 and repealing
18             the existing sections; also repealing K.S.A. 72-933, 72-963b, 72-969,
19             72-972 and 72-980.
20      
21       Be it enacted by the Legislature of the State of Kansas:
22             Section  1. K.S.A. 72-961 is hereby amended to read as follows: 72-
23       961. This act shall be known and may be cited as the "special education
24       for exceptional children act." It is the purpose and intention of this act
25       to provide for educational opportunities which will contribute to the de-
26       velopment of each exceptional child in this state in accord with his or her
27       abilities and capacities.
28             Sec.  2. K.S.A. 1998 Supp. 72-962 is hereby amended to read as fol-
29       lows: 72-962. As used in this act:
30             (a) "School district" means any public school district.
31             (b) "Board" means the board of education of any school district.
32             (c) "State board" means the state board of education.
33             (d) "Department" means the state department of education.
34             (e) "State institution" means Topeka state hospital, Osawatomie state
35       hospital, Rainbow mental health facility, Larned state hospital, Parsons
36       state hospital and training center, Winfield state hospital and training
37       center, Kansas neurological institute and any juvenile correctional facility
38       as defined by K.S.A. 38-1602, and amendments thereto any institution
39       under the jurisdiction of a state agency.
40             (f) "State agency" means the secretary of social and rehabilitation
41       services, the secretary of corrections, and the commissioner of juvenile

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  1       justice.
  2             (f) (g) "Exceptional children" means persons who: (1) are children
  3       with disabilities or gifted children and are school age, to be determined
  4       in accordance with rules and regulations adopted by the state board,
  5       which age may differ from the ages of children required to attend school
  6       under the provisions of K.S.A. 72-1111, and amendments thereto; and
  7       (2) differ in physical, mental, social, emotional or educational character-
  8       istics to the extent that special education services are necessary to enable
  9       them to receive educational benefits in accordance with their abilities or
10       capacities.
11             (g) (h) "Gifted children" means exceptional children who are deter-
12       mined to be within the gifted category of exceptionality as such category
13       is defined in by the state plan board.
14             (h) (i) "Special education services" means programs for which spe-
15       cialized training, instruction, programming techniques, facilities and
16       equipment may be needed for the education of exceptional children spe-
17       cially designed instruction provided at no cost to parents to meet the
18       unique needs of an exceptional child, including:
19             (1) Instruction conducted in the classroom, in the home, in hospitals
20       and institutions, and in other settings; and
21             (2) instruction in physical education.
22             (i) (j) "Special teacher" means a person, employed by or under con-
23       tract with a school district or a state institution for to provide special
24       education or related services, who is: (1) A teacher Qualified to instruct
25       provide special education or related services to exceptional children as
26       determined by pursuant to standards established by the state board and
27       who is so certified by the state board; or (2) a paraprofessional qualified
28       to assist certificated teachers in the instruction provision of special edu-
29       cation or related services to exceptional children as determined by pur-
30       suant to standards established by the state board and who is so approved
31       by the state board.
32             (j) (k) "State plan" means the state plan for special education and
33       related services authorized by this act.
34             (k) (l) "Agency" means boards and the secretary of social and reha-
35       bilitation services state agencies.
36             (l) "Lawful custodian" means a parent or a person acting as parent.
37       If none of the above is known or can be found, an agency shall cause
38       proper proceedings to be instituted pursuant to the Kansas code for care
39       of children to determine whether a child is a child in need of care. For a
40       child whose custodian is the secretary of social and rehabilitation services,
41       the term lawful custodian means the secretary except, when used in
42       K.S.A. 72-972 through 72-975, and amendments to such sections, the
43       term means an education advocate.

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  1             (m) "Parent" means a natural parent, an adoptive parent, or a step-
  2       parent person acting as parent, a legal guardian, or an education
  3       advocate.
  4             (n) "Person acting as parent" means: (1) A guardian or conservator;
  5       or (2) a person, other than a parent, who is liable by law to maintain, care
  6       for, or support the child, or who has actual care and control of the child
  7       and is contributing the major portion of the cost of support of the child,
  8       or who has actual care and control of the child with the written consent
  9       of a person who has legal custody of the child, or who has been granted
10       custody of the child by a court of competent jurisdiction.
11        (n) "Person acting as parent" means a person such as a grand-
12       parent or a stepparent with whom a child lives or a person other
13       than a parent who is legally responsible for the welfare of a child.
14             (o) (o) "Education advocate" means a person appointed by the state
15       board in accordance with the provisions of K.S.A. 38-1513a, and amend-
16       ments thereto. A person appointed as an education advocate for a child
17       shall not be: (1) An employee of the agency which is required by law to
18       provide special education or related services for the child, or; (2) an em-
19       ployee of the state board, the department, or any agency which is directly
20       involved in providing educational services for the child,; or (3) any person
21       having a professional or personal interest which would conflict with the
22       interests of the child.
23             (o) (p) "Free appropriate public education" means special education
24       and related services that: (1) Are provided at public expense, under public
25       supervision and direction, and without charge; (2) meet the standards of
26       the state board; (3) include an appropriate preschool, elementary, or sec-
27       ondary school education; and (4) are provided in conformity with an
28       individualized education program.
29             (p) (q) "Federal law" means the individuals with disabilities educa-
30       tion act, as amended.
31             (q) (r) "Individualized education program" or "IEP" means a written
32       statement for each exceptional child that is developed, reviewed, and re-
33       vised in accordance with the provisions of section 12, and amendments
34       thereto.
35             (r) (s) "Related services" means transportation, and such develop-
36       mental, corrective, and other supportive services, including speech-lan-
37       guage pathology and audiology services, psychological services, physical
38       and occupational therapy, recreation, including therapeutic recreation,
39       social work services, counseling services, including rehabilitation coun-
40       seling, orientation and mobility services, and medical services, except that
41       such medical services shall be for diagnostic and evaluation purposes only,
42       as may be required to assist an exceptional child to benefit from special
43       education, and includes the early identification and assessment of disa-

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  1       bling conditions in children.
  2             (s) (t) "Supplementary aids and services" means aids, services, and
  3       other supports that are provided in regular education classes or other
  4       education-related settings to enable children with disabilities to be edu-
  5       cated with nondisabled children to the maximum extent appropriate.
  6             (t) (u) "Individualized education program team" or "IEP team"
  7       means a group of individuals composed of: (1) The parents of a child; (2)
  8       at least one regular education teacher of the child, if the child is, or may
  9       be, participating in the regular education environment; (3) at least one
10       special education teacher or, where appropriate, at least one special ed-
11       ucation provider of the child; (4) a representative of the agency directly
12       involved in providing educational services for the child who: (A) Is qual-
13       ified to provide, or supervise the provision of, specially designed instruc-
14       tion to meet the unique needs of exceptional children; (B) is knowledgeable
15       about the general curriculum; and (C) is knowledgeable about the avail-
16       ability of resources of the agency; (5) an individual who can interpret the
17       instructional implications of evaluation results; (6) at the discretion of the
18       parent or the agency, other individuals who have knowledge or special
19       expertise regarding the child, including related services personnel as ap-
20       propriate; and (7) whenever appropriate, the child.
21             (u) (v) "Evaluation" means a multisourced and multidisciplinary ex-
22       amination, conducted in accordance with the provisions of section 11, and
23       amendments thereto, to determine whether a child is an exceptional child.
24             (v) (w) "Independent educational evaluation" means an examination
25       which is obtained by the parent of an exceptional child and performed by
26       an individual or group of individuals who meet state and local standards
27       to conduct such an examination.
28             (w) (x) "Elementary school" means any nonprofit institutional day or
29       residential school that offers instruction in any or all of the grades kin-
30       dergarten through nine.
31             (x) (y) "Secondary school" means any nonprofit institutional day or
32       residential school that offers instruction in any or all of the grades nine
33       through 12.
34             (y) (z) "Children with disabilities" means children with mental re-
35       tardation, hearing impairments including deafness, speech or language
36       impairments, visual impairments including blindness, emotional distur-
37       bance, orthopedic impairments, autism, traumatic brain injury, other
38       health impairments, or specific learning disabilities and who, by reason
39       thereof, need special education and related services.
40             (z) (aa) "Substantial change in placement" means the movement of
41       an exceptional child, for more than 25% of the child's school day, from a
42       less restrictive environment to a more restrictive environment or from a
43       more restrictive environment to a less restrictive environment, or the ad-

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  1       dition to, or deletion from, the child's IEP of a related service or a sup-
  2       plementary aid or service.
  3             (aa) (bb) "Material change in services" means an increase or
  4       decrease of 25% or more of the duration or frequency of a special
  5       education service, a related service or a supplementary aid or a
  6       service specified on the IEP of an exceptional child.
  7             Sec.  3. K.S.A. 72-963 is hereby amended to read as follows: 72-963.
  8       The state board shall adopt, from time to time amend, and administer
  9       the state plan. The state board may amend the state plan as necessary.
10       The state plan, and any amendments thereto, shall be prepared in con-
11       sultation with the state advisory council for special education provided
12       for in this act. The state plan shall include a statement of the objectives
13       of state supervision of special education services in school districts and
14       state institutions.
15             The state board may adopt rules and regulations for the administration
16       of the special education for exceptional children this act and shall adopt
17       rules and regulations necessary to comply with the federal law and to
18       implement and give effect to the state plan. Rules and regulations adopted
19       by the state board to implement and give effect to the state plan shall
20       include the following:
21             (a) Provisions for the establishment, maintenance and supervision of
22       special education services in school districts and state institutions the pro-
23       visions of this act.
24             (b) Prescribed courses of study and curricula necessary to meet
25       requirements for approval of special education services.
26             (c) Criteria for screening, diagnosis and certification of exceptional
27       children including physical, educational and psychological examinations.
28       No child from a home in which English is not the principal language may
29       be assigned to special education services for exceptional children until
30       such time that the child has been given, in the principal language used
31       in the home of the child, examinations reasonably related to the child's
32       cultural environment.
33             (d) Definitions of the various categories of exceptionality.
34             (e) Implementation dates of special education services for the various
35       categories of exceptionality.
36             (f) Standards for special education services to be received by each of
37       the several categories of exceptional children.
38             Rules and regulations adopted by the state board to implement and
39       give effect to the state plan shall be incorporated by reference in the state
40       plan.
41             Sec.  4. K.S.A. 72-963a is hereby amended to read as follows: 72-
42       963a. Within 30 days after the effective date of this act, The state board
43       shall:

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  1             (a) Establish procedures, which shall be utilized by each agency, to
  2       allow parties to disputes involving any matter described in subsection
  3       (b)(4) of section 17, and amendments thereto, or in section 31, and amend-
  4       ments thereto, to resolve such disputes through a mediation process or
  5       through due process hearings which meet the requirements of the federal
  6       law and this act.
  7             (a) (b) Establish, in consultation with the state advisory council for
  8       special education, standards and requirements for qualification of persons
  9       as hearing officers and mediators. Such standards and requirements shall
10       include, but not be limited to, standards and requirements relating to the
11       education and training necessary to assure the competent performance
12       of functions and procedures which hearing officers and mediators are
13       authorized to perform.
14             (b) (c) Establish standards and criteria for conducting and approving
15       training programs for hearing officers and mediators.
16             (c) (d) Compile and maintain a list of qualified hearing officers and
17       mediators.
18             Sec.  5. K.S.A. 72-963c is hereby amended to read as follows: 72-
19       963c. (a) The state board, in consultation with the state advisory council
20       for special education, shall:
21             (1) Prescribe guidelines for the selection of persons for appointment
22       as education advocates and for the exercise of their authorized powers,
23       duties and functions;
24             (2) establish standards and criteria for qualification of persons for
25       appointment as education advocates; and
26             (3) provide for special training programs with respect to the powers,
27       duties and functions of lawful custodians parents.
28             (b) Lawful custodians Parents who are education advocates shall, and
29       all other lawful custodians parents may, participate in the special training
30       programs provided for under provision (3) of subsection (a).
31             (c) The state board shall adopt rules and regulations for effectuation
32       of the provisions of this section and shall make such rules and regulations
33       a part of the state plan.
34             Sec.  6. K.S.A. 72-964 is hereby amended to read as follows: 72-964.
35       (a) The There is established a state advisory council for special education
36       which shall consist of nine not more than 21 members. Members of the
37       advisory council shall be appointed by the state board of education, and
38       every such appointment shall be serve for a fixed term of not to exceed
39       three years. No member may serve more than two consecutive terms
40       whenever a vacancy occurs in the membership of the advisory council for
41       any reason other than the expiration of the term of a member, the state
42       board shall appoint a successor for the remainder of the unexpired term.
43       Members appointed

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

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

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  1       to practice medicine and surgery, is admitted to a hospital, treatment
  2       center, or other health care institution, or to a group boarding home or
  3       other care facility, and the institution or facility is located outside the
  4       school district in which the child resides, the district in which the insti-
  5       tution or facility is located must may contract with the district in which
  6       a parent or person acting as parent of the child resides, to provide special
  7       education or related services, if such services are necessary for the child.
  8       Special education and related services required by this subsection shall
  9       may be provided pursuant to and in accordance with a contract which
10       shall be entered into between the board of education of the school district
11       of which the child is a resident and the board of education of the school
12       district in which the child is living housed. Each Any such contract shall
13       be subject to the provisions of subsection subsections (a)(3) and subsec-
14       tion (c) of K.S.A. 72-967, and amendments thereto. If a contract is not
15       entered into between the school districts, the child shall be deemed to be
16       a pupil of the school district which is providing special education and
17       related services to the child. Nothing in this subsection shall be construed
18       to limit or supersede or in any manner affect or diminish the requirements
19       of compliance by each school district with the provisions of subsection
20       (a), but shall operate as a comity of school districts in assuring the pro-
21       vision of special education services for each exceptional child in the state.
22             (c)  (1) Special education and related services required by this section
23       shall meet standards and criteria set by the state board.
24             (2) The manner and time for implementation in school districts of
25       special education services designed for each of the various categories of
26       exceptionality shall be designated by the state board in accordance with
27       the state plan. shall be responsible for assuring that the requirements of
28       the federal law and this act are met and that all educational programs for
29       exceptional children, including programs administered by any other state
30       agency: (A) Are under the general supervision of individuals who are
31       responsible for educational programs for exceptional children; and (B)
32       meet the educational standards prescribed by the state board.
33             (3) Provision (2) of this subsection shall not limit the responsibility of
34       any other state agency to provide, or pay for some or all of the costs of,
35       a free appropriate public education for an exceptional child.
36             (d) Consistent with state and federal law, state agencies shall enter
37       into such interagency agreements as are necessary or advisable in making
38       a free appropriate public education available to all exceptional children
39       residing in the state. The state board shall establish procedures for re-
40       solving interagency disputes, including procedures under which local ed-
41       ucational agencies may initiate proceedings to secure reimbursement or
42       otherwise implement or seek enforcement of the provisions of the intera-
43       gency agreement.

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  1             New Sec.  9. The state board shall:
  2             (1) Establish goals for the performance of children with disabilities
  3       in the state that: (A) Will promote the purposes of this act; and (B) are
  4       consistent, to the maximum extent appropriate, with other goals and stan-
  5       dards for children established by the state board;
  6             (2) establish performance indicators the state will use to assess pro-
  7       gress toward achieving those goals that, at a minimum, address the per-
  8       formance of children with disabilities on assessments, dropout rates, and
  9       graduation rates;
10             (3) every two years, report to the secretary of the U.S. department
11       of education, and to the public, the progress of the state, and of children
12       with disabilities in the state, toward meeting the goals established under
13       this section; and
14             (4) based on its assessment of that progress, revise its state improve-
15       ment plan in accordance with the provisions of subpart 1 of part D of the
16       federal law as may be needed to improve performance, if the state re-
17       ceives assistance under that subpart.
18             New Sec.  10. (a) The state board and each board shall include, to
19       the extent required by the federal law and this act, exceptional children
20       in general state and district-wide assessment programs, with appropriate
21       accommodations where necessary. As appropriate, the state board and
22       each board shall:
23             (1) Develop guidelines for the participation of children with disabil-
24       ities in alternate assessments for those children who cannot participate in
25       state and district-wide assessment programs; and
26             (2) develop and, beginning not later than July 1, 2000, conduct those
27       alternate assessments.
28             (b) The state board shall make available to the public, and report to
29       the public with the same frequency and in the same detail as it reports
30       on the assessment of nondisabled children, the following:
31             (1) The number of children with disabilities participating in regular
32       assessments;
33             (2) the number of children with disabilities participating in alternate
34       assessments; and
35             (3) the performance of children with disabilities on regular assess-
36       ments beginning not later than July of 1999, and on alternate assessments
37       not later than July 1, 2000, if doing so would be statistically sound and
38       would not result in the disclosure of performance results identifiable of
39       individual children.
40             (c) Data relating to the performance of children with disabilities shall
41       be disaggregated for assessments conducted after the effective date of
42       this act.
43             New Sec.  11. (a) (1) An agency shall conduct a full and individual

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

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

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  1       child continues to be an exceptional child, the agency:
  2             (1) Shall notify the child's parents of: (A) That determination and the
  3       reasons for it; and (B) the rights of such parents to request an assessment
  4       to determine whether the child continues to be an exceptional child; and
  5             (2) shall not be required to conduct such an assessment unless re-
  6       quested by the child's parents.
  7             (j) An agency shall evaluate a child in accordance with this section
  8       before determining that the child is no longer an exceptional child.
  9             New Sec.  12. (a) (1) Except as specified in provision (2), at the be-
10       ginning of each school year, each agency shall have an individualized
11       education program in effect for each exceptional child.
12             (2) In the case of a child with a disability aged three through five and
13       for two year-old children with a disability who will turn age three during
14       the school year, an individualized family service plan that contains the
15       material described in 20 U.S.C. 1436, and that is developed in accordance
16       with this section, may serve as the IEP of the child if using that plan as
17       the IEP is agreed to by the agency and the child's parents.
18             (b) The IEP for each exceptional child shall include:
19             (1) A statement of the child's present levels of educational perform-
20       ance, including: (A) How the child's disability or giftedness affects the
21       child's involvement and progress in the general curriculum; or (B) for
22       preschool children, as appropriate, how the disability affects the child's
23       participation in appropriate activities;
24        (2) a statement of measurable annual goals, including benchmarks or
25       short-term objectives, related to: (A) Meeting the child's needs that result
26       from the child's disability or giftedness, to enable the child to be involved
27       in and progress in the general or advanced curriculum; and (B) meeting
28       each of the child's other educational needs that result from the child's
29       disability or giftedness;
30             (3) a statement of the special education and related services and sup-
31       plementary aids and services to be provided to the child, or on behalf of
32       the child, and a statement of the program modifications or supports for
33       school personnel that will be provided for the child: (A) To advance ap-
34       propriately toward attaining the annual goals; (B) to be involved and pro-
35       gress in the general curriculum in accordance with provision (1) and to
36       participate in extracurricular and other nonacademic activities; and (C)
37       to be educated and participate with other exceptional and nonexceptional
38       children in the activities described in this paragraph;
39             (4) an explanation of the extent, if any, to which the child will not
40       participate with nonexceptional children in the regular class and in the
41       activities described in provision (3);
42             (5)  (A) a statement of any individual modifications in the adminis-
43       tration of state or district-wide assessments of student achievement that

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

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

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  1       districts for special education and related services, if such agreements are
  2       approved as provided by this act.
  3             (5) Contract with any accredited private nonprofit corporation or any
  4       public or private institution, within or without outside the state, which
  5       has proper special education or related services for exceptional children.
  6       Prior to the time any school district enters into a contract with any private
  7       nonprofit corporation or any public or private institution for the education
  8       of any exceptional child the curriculum provided by such corporation or
  9       institution and the contract shall be approved by the commissioner of
10       education upon authorization by the state board. Whenever an excep-
11       tional child is educated by a private nonprofit corporation or a public or
12       private institution as provided under the provisions of this paragraph,
13       such child shall be considered a pupil of the school district contracting
14       for such education hereunder to the same extent as other pupils of such
15       school district for the purpose of determining entitlements and partici-
16       pation in all state, county federal and other financial assistance or pay-
17       ments to such school district.
18             (6) Provide Furnish transportation for exceptional children, whether
19       such children are residents or nonresidents of such school district, to and
20       from for the provision of special education or related services attended.
21       In lieu of paying for transportation, the board of the school district in
22       which an exceptional child resides may pay all or part of the cost of room
23       and board for such exceptional child at the place where the special edu-
24       cation or related services attended are located provided.
25             (b) Special education and related services which are provided by
26       school districts for exceptional children shall meet standards and criteria
27       set by the state board in accordance with the state plan and shall be
28       subject to approval by the state board.
29             (c) Any contract entered into by a board under the provisions of this
30       section shall be subject to change or termination by the legislature.
31             Sec.  14. K.S.A. 1998 Supp. 72-968 is hereby amended to read as
32       follows: 72-968. (a) The boards of any two or more school districts within
33       or outside the state may make and enter into agreements providing for
34       cooperative operation and administration in providing special education
35       and related services for exceptional children on a shared-cost basis, sub-
36       ject to the following:
37             (1) An agreement shall be effective only after approval by the state
38       board, which approval shall be granted if the special education services
39       provided for in such agreement meet standards and criteria set by the
40       state board in accordance with the state plan.
41             (2)  (A) The duration of an agreement shall be perpetual but the
42       agreement may be partially or completely terminated as hereinafter
43       provided.

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

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

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  1       include, but not be limited to, the rights specified in this section.
  2             (b) The parents of exceptional children shall have the right to:
  3             (1) Examine all records relating to such child and to participate in
  4       meetings with respect to the identification, evaluation, and educational
  5       placement of the child, and the provision of a free appropriate public
  6       education to such child, and to obtain an independent educational eval-
  7       uation of the child;
  8             (2) written prior notice in accordance with section 19, and amend-
  9       ments thereto, whenever an agency: (A) Proposes to initiate or change;
10       or (B) refuses to initiate or change, the identification, evaluation, or ed-
11       ucational placement of the child, in accordance with subsection (c), or
12       the provision of a free appropriate public education to the child;
13             (3) receive the notice required by provision (2) in their native lan-
14       guage, unless it clearly is not feasible to do so;
15             (4) present complaints with respect to any matter relating to the iden-
16       tification, evaluation, or educational placement of the child, or the pro-
17       vision of a free appropriate public education to the child, subject to the
18       requirements that the parent, or the attorney representing the parent or
19       child, provides notice to the agency that includes: (A) The name of the
20       child, the address of the residence of the child, and the name of the school
21       the child is attending; (B) a description of the nature of the problem of
22       the child relating to such proposed initiation or change, including facts
23       relating to such problem; and (C) a proposed resolution of the problem
24       to the extent known and available to the parents at the time;
25             (5) request mediation in accordance with this act;
26             (6) consent, or refuse to consent, to the evaluation, reevaluation or
27       the initial placement of their child and to any substantial change in place-
28       ment of, or a material change in services for, their child, unless a
29       change in placement of their child is ordered pursuant to the provisions
30       of section 30, and amendments thereto, or the agency can demonstrate
31       that it has taken reasonable measures to obtain parental consent to a
32       change in placement or services, and the child's parent has failed to
33       respond. If the parent fails to respond to the request for parental consent
34       to a substantial change in placement or a material change in services,
35       the agency must maintain detailed records of written and verbal contacts
36       with the parent and the response, if any, received from the parent;
37             (7) be members of any group that makes decisions on the educational
38       placement of their child;
39             (8) demand that their child remain in the child's current educational
40       placement pending the outcome of a due process hearing, except as oth-
41       erwise provided by federal law and this act;
42             (9) request a due process hearing in regard to any complaint filed in
43       accordance with provision (4) of this subsection, or as authorized in sec-

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  1       tion 31, and amendments thereto;
  2             (10) appeal to the state board any adverse decision rendered by a
  3       hearing officer in a local due process hearing;
  4             (11) appeal to state or federal court any adverse decision rendered
  5       by a review officer in a state-level due process appeal; and
  6             (12) recover attorney fees, as provided in the federal law, if they are
  7       the prevailing parties in a due process hearing or court action; however,
  8       only a court shall have the authority to award attorney fees, and such fees
  9       may be reduced or denied in accordance with federal law.
10             (c) The state board shall develop a model form to assist parents in
11       filing a complaint in accordance with subsection (b)(4).
12             (d) The state board shall develop, and thereafter amend as necessary,
13       and distribute for use by agencies, a list of the rights available to the
14       parents of exceptional children under the federal law and this act. The
15       list shall be made available in various languages and be written so as to
16       be easily understandable by parents.
17             (e) A list of the rights available to the parents of exceptional children
18       shall be given to the parents, at a minimum: (A) Upon initial referral for
19       evaluation and upon reevaluation of the child; (B) upon each notification
20       of an individualized education program meeting; and (C) upon registra-
21       tion of a complaint under subsection (b)(4).
22             New Sec.  18. When a person who has been determined to be a child
23       with a disability reaches the age of 18, except for such a person who has
24       been determined to be incompetent under state law:
25             (a) An agency shall provide to both the person and to the person's
26       parents any notice required by this act;
27             (b) all other rights accorded to parents under this act transfer to the
28       person;
29             (c) the agency shall notify the person and the parents of the transfer
30       of rights; and
31             (d) all rights accorded to parents under this act transfer to the person
32       if incarcerated in an adult or juvenile federal, state or local correctional
33       institution.
34             New Sec.  19. The notice required by subsection (b)(2) of section 17,
35       and amendments thereto, shall include:
36             (a) A description of the action proposed or refused by the agency;
37             (b) an explanation of why the agency proposes or refuses to take the
38       action;
39             (c) a description of any other options that the agency considered and
40       the reasons those options were rejected;
41             (d) a description of each evaluation procedure, test, record, or report
42       the agency used as a basis for the proposed or refused action;
43             (e) a description of any other factors that are relevant to the agency's

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  1       proposal or refusal;
  2             (f) a statement that the parents have protection under the procedural
  3       safeguards of this act and, if the notice is not an initial referral for eval-
  4       uation, the means by which a copy of the procedural safeguards can be
  5       obtained; and
  6             (g) sources for parents to contact to obtain assistance in understand-
  7       ing the provisions of the federal law and this act.
  8             Sec.  20. K.S.A. 72-973 is hereby amended to read as follows: 72-973.
  9       (a) The Any due process hearing provided for in K.S.A. 72-972, and
10       amendments thereto, under this act, shall be held at a time and place
11       reasonably convenient to the lawful custodian parent of the involved child,
12       shall be a closed hearing unless the lawful custodian parent requests an
13       open hearing, and shall be conducted in accordance with rules and reg-
14       ulations relating thereto adopted by the agency. Such rules and regula-
15       tions shall afford procedural due process, including the following:
16             (1) The right of the parties to have counsel or an advisor of their own
17       choice present and to receive the advice of such counsel or other advisor
18       whom they may select;
19             (2) the right of the child and the lawful custodian parent of the child
20       to be present at the hearing;
21             (3) the right of the child, the lawful custodian parent of the child and
22       their counsel or advisor to hear or read a full report of the testimony of
23       witnesses responsible for recommending the proposed action and of any
24       other material witnesses;
25             (4) the right of the parties and their counsel or advisor to confront
26       and cross-examine witnesses who appear in person at the hearing, either
27       voluntarily or as a result of the issuance of a subpoena;
28             (5) the right of the parties to present witnesses in person or their
29       testimony by affidavit, including expert medical, psychological or educa-
30       tional testimony;
31             (6) the right of the child and the lawful custodian parent, on behalf
32       of the child, to testify and give reasons in opposition to the proposed
33       action;
34             (7) the right of the parties to prohibit the presentation of any evi-
35       dence at the hearing which has not been disclosed to the opposite party
36       at least five days prior to the hearing, including any evaluations completed
37       by that date and any recommendations based on such evaluations;
38             (8) the right of the parties to have an orderly hearing;
39             (9) the right of the child to a fair and impartial decision based on
40       substantial evidence; and
41             (10) the right of the parties to have a written or, at the option of the
42       parent, an electronic, verbatim record of the hearing made by mechanical
43       or electronic recording or by an official court reporter.

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

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  1       agency providing for the hearing or, at the option of the parent, shall be
  2       an electronic decision. Any action of the hearing officer in accordance
  3       with this subsection shall be final, subject to appeal and review in ac-
  4       cordance with K.S.A. 72-974, and amendments thereto this act.
  5             Sec.  21. K.S.A. 72-973a is hereby amended to read as follows: 72-
  6       973a. Prior to appointing any hearing officer to conduct a due process
  7       hearing provided for in K.S.A. 72-972, and amendments thereto under
  8       this act, the agency shall make its list of hearing officers available to the
  9       lawful custodian parent of the involved child and shall inform the lawful
10       custodian parent of the right to request disqualification of any or all of
11       the hearing officers on the list and to request the state board to appoint
12       a hearing officer in accordance with the procedure provided in this sub-
13       section. If the lawful custodian parent does not request disqualification
14       of all of the hearing officers give written notice of disqualification to the
15       agency within five days after the parent receives the list, the agency may
16       appoint from its list any hearing officer whom the lawful custodian parent
17       has not requested to be disqualified. If the lawful custodian parent re-
18       quests disqualification of all of the hearing officers and requests the ap-
19       pointment of a hearing officer by the state board, the agency shall im-
20       mediately notify the state board and shall request the state board to
21       provide a list of the names and qualifications of five prospective hearing
22       officers. The agency and the lawful custodian of the involved child may
23       each remove two names from the list. The agency shall inform the state
24       board of the name or names remaining on the list and the state board
25       shall appoint a hearing officer therefrom.
26             Sec.  22. K.S.A. 1998 Supp. 72-974 is hereby amended to read as
27       follows: 72-974. (a) Written notice of the result of any hearing provided
28       for under K.S.A. 72-972, and amendments thereto, this act shall be given
29       to the agency providing for the hearing and shall be sent by restricted
30       certified mail to the affected child or the lawful custodian parent, counsel
31       or advisor of the child within 24 hours after the result is determined. Such
32       decision, after deletion of any personally identifiable information con-
33       tained therein, shall also be transmitted to the state board which shall
34       make the decision available to the state advisory council for special edu-
35       cation and to the public upon request.
36             (b)  (1) Any party to a due process hearing provided for under K.S.A.
37       72-972, and amendments thereto, this act may appeal the decision to the
38       state board by filing a written notice of appeal with the commissioner of
39       education not later than 30 calendar days after receiving the date of the
40       postmark on the written notice specified in subsection (a). Any such hear-
41       ing and decision therein shall be reviewed by a reviewing A review officer
42       appointed by the state board, shall conduct an impartial review of the
43       decision. The review officer shall render a decision not later than 20 cal-

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

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

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  1       dren as required by this act, and a determination has been made as pro-
  2       vided in K.S.A. 72-972 to 72-975, inclusive, and amendments thereto,
  3       that a child is an exceptional child and special education services are
  4       necessary for such child, it shall be the duty of the lawful custodian parent
  5       of such each exceptional child to require such child to enroll for and
  6       attend school to receive the special education and related services which
  7       are indicated by such determination on the child's IEP or to provide for
  8       such services privately.
  9             (b) The provisions of subsection (a) do not apply to gifted children
10       or to lawful custodians parents of gifted children.
11             Sec.  26. K.S.A. 1998 Supp. 72-978 is hereby amended to read as
12       follows: 72-978. (a) (1) In each school year, in accordance with appropri-
13       ations for special education and related services provided under this act,
14       each school district which has provided special education and related
15       services in compliance with the requirements of the state plan and the
16       provisions of this act shall be entitled to receive:
17             (A) Reimbursement for actual travel allowances paid to special teach-
18       ers at not to exceed the rate specified under K.S.A. 75-3203, and amend-
19       ments thereto, for each mile actually traveled during the school year in
20       connection with duties in providing special education or related services
21       for exceptional children; such reimbursement shall be computed by the
22       state board by ascertaining the actual travel allowances paid to special
23       teachers by the school district for the school year and shall be in an
24       amount equal to 80% of such actual travel allowances;
25             (B) reimbursement in an amount equal to 80% of the actual travel
26       expenses incurred for providing transportation for exceptional children to
27       special education or related services; such reimbursement shall not be
28       paid if such child has been counted in determining the transportation
29       weighting of the district under the provisions of the school district finance
30       and quality performance act;
31             (C) reimbursement in an amount equal to 80% of the actual expenses
32       incurred for the maintenance of an exceptional child at some place other
33       than the residence of such child for the purpose of providing special
34       education or related services; such reimbursement shall not exceed $600
35       per exceptional child per school year; and
36             (D) after subtracting the amounts of reimbursement under (A), (B)
37       and (C) from the total amount appropriated for special education and
38       related services under this act, an amount which bears the same propor-
39       tion to the remaining amount appropriated as the number of full-time
40       equivalent special teachers who are qualified to provide special education
41       or related services to exceptional children and are employed by the school
42       district for approved special education or related services bears to the
43       total number of such qualified full-time equivalent special teachers em-

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

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  1       Give technical advice and assistance to any board agency in connection
  2       with the establishment and maintenance of programs of screening, di-
  3       agnosis and certification of special education and related services for ex-
  4       ceptional children; (2) make recommendations to any board agency con-
  5       cerning appropriate special education or related services for to be
  6       provided to exceptional children; and (3) consider and give advice to any
  7       board agency concerning problems encountered by such board agency in
  8       complying with the requirements of K.S.A. 72-933 and 72-966 this act.
  9             Sec.  29. K.S.A. 1998 Supp. 72-983 is hereby amended to read as
10       follows: 72-983. (a) In each school year, commencing with the 1994-95
11       school year, to the extent that appropriations are available, each school
12       district which has provided special education or related services for an
13       exceptional child who uniquely or so severely differs from other excep-
14       tional children in physical, mental, social, emotional or educational char-
15       acteristics that the costs attributable to the provision of special education
16       services for the child are whose IEP provides for services which cost in
17       excess of $25,000 for the school year is eligible to receive a grant of state
18       moneys in an amount equal to 75% of that portion of the costs, incurred
19       by the district in the provision of special education or related services for
20       the child, that is in excess of $25,000.
21             (b) In order to be eligible for a grant of state moneys provided for by
22       subsection (a), a school district shall submit to the state board of education
23       an application for a grant and, a description of the special education or
24       related services provided, and the name or names of the child or children
25       for whom provided. The application and description shall be prepared in
26       such form and manner as the state board shall require and shall be sub-
27       mitted at a time to be determined and specified by the state board. Ap-
28       proval by the state board of applications for grants of state moneys is
29       prerequisite to the award of grants.
30             (c) Each school district which is awarded a grant under this section
31       shall make such periodic and special reports of statistical and financial
32       information to the state board as it may request.
33             (d) All moneys received by a school district under authority of this
34       section shall be deposited in the special education fund of the school
35       district. Amounts received under this section and deposited in the special
36       education fund shall be used exclusively to reimburse the school district,
37       in part, for the excessive amount expended in providing special education
38       or related services for uniquely or severely different the exceptional child
39       or children whose name or names were provided under subsection (b).
40             (e) The state board of education shall:
41             (1) Prescribe and adopt criteria for identification of uniquely or se-
42       verely different exceptional children and for determination of excessive
43       costs attributable to the provision of special education and related services

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

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

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

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

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

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  1       effective mediation techniques.
  2             (c) The state board shall maintain a list of individuals who are qual-
  3       ified mediators and knowledgeable in laws and regulations relating to the
  4       provision of special education and related services and shall establish pro-
  5       cedures for the appointment of a mediator to help resolve disputes be-
  6       tween the parties.
  7             (d) The state board shall bear the cost of the mediation process de-
  8       scribed in this section.
  9             (e) Each session in the mediation process shall be scheduled in a
10       timely manner and shall be held in a location that is convenient to the
11       parties to the dispute.
12             (f) An agreement reached by the parties to the dispute in the medi-
13       ation process shall be set forth in a written mediation agreement.
14             (g) Discussions that occur during the mediation process shall be con-
15       fidential and may not be used as evidence in any subsequent due process
16       hearings or civil proceedings and the parties to the mediation process
17       may be required to sign a confidentiality pledge prior to the commence-
18       ment of such process.
19             Sec.  36. K.S.A. 38-1513a is hereby amended to read as follows: 38-
20       1513a. (a) When the court has granted legal custody of a child in a hearing
21       under the Kansas code for care of children to an agency, association or
22       individual, the custodian or an agent designated by the custodian shall
23       have authority to make educational decisions for the child if the parents
24       of the child are unknown or unavailable. When the custodian of the child
25       is the secretary, and the parents of the child are unknown or unavailable,
26       and the child appears to be an exceptional child who requires special
27       education services, the secretary shall immediately notify the state board
28       of education, or a designee of the state board, and the school district in
29       which the child is residing that the child is in need of an education ad-
30       vocate. As soon as possible after notification by the secretary of the need
31       by a child of an education advocate, the state board of education, or its
32       designee, shall appoint an education advocate for the child.
33             (b) As used in this section, the terms exceptional child, special edu-
34       cation services, and education advocate have the meanings respectively
35       ascribed thereto in the special education for exceptional children act.
36             Sec.  37. K.S.A. 1998 Supp. 72-53,109 is hereby amended to read as
37       follows: 72-53,109. (a) Subject to the provisions of subsection (b), no
38       school district shall be required to provide any person, who is 16 years of
39       age or older, has been prosecuted as an adult, convicted of a crime, and
40       incarcerated in a county jail or state correctional institution, with an op-
41       portunity to attend school at a school facility operated by the school dis-
42       trict for the period of time the person is incarcerated, nor shall any school
43       district be required to provide any such person with educational services

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  1       at the county jail or state correctional institution in which the person is
  2       incarcerated.
  3             (b) The provisions of subsection (a) do not apply to any person who
  4       is under 21 years of age and who, immediately prior to conviction and
  5       incarceration, was determined to be an exceptional child, except for an
  6       exceptional child who is determined to be a gifted child, child with a
  7       disability for whom an individualized education program had been de-
  8       veloped and effectuated under the provisions of the special education for
  9       exceptional children act.
10             Sec.  38. K.S.A. 1998 Supp. 72-8902 is hereby amended to read as
11       follows: 72-8902. (a) (1) Except as authorized in provision (2), a suspen-
12       sion may be for a short term not exceeding five school days, or for an
13       extended term not exceeding 90 school days. An expulsion may be for a
14       term not exceeding 186 school days. If a suspension or expulsion is for a
15       term exceeding the number of school days remaining in the school year,
16       any remaining part of the term of the suspension or expulsion may be
17       applied to the succeeding school year.
18             (2) A short-term suspension may be imposed for not more than 10
19       school days if a pupil: (A) Carries a weapon to school, onto school prop-
20       erty, or to a school supervised activity; (B) knowingly possesses or uses
21       illegal drugs or sells or solicits the sale of a controlled substance while at
22       school, on school property or at a school supervised activity; or (C) has
23       engaged in behavior which resulted in, or was substantially likely to have
24       resulted in, injury to the pupil or to others.
25             (3) For the purposes of this provision, the following definitions apply:
26       (A) "Controlled substance" means a drug or other substance identified
27       under schedules I, II, III, IV, or V in 21 U.S.C. 812(c); (B) "illegal drug"
28       means a controlled substance but does not include such a substance that
29       is legally possessed or used under the supervision of a licensed health-care
30       professional or that is legally possessed or used under any other authority
31       under any federal or state law; and (C) "weapon" means a weapon, device,
32       instrument, material, or substance, animate or inanimate, that is used for,
33       or is readily capable of, causing death or serious bodily injury, except that
34       such term does not include a pocket knife with a blade of less than 2 1/2;
35       inches in length.
36             (b)  (1) Except as authorized in provision (2), no suspension for a
37       short term shall be imposed upon a pupil without giving the pupil notice
38       of the charges and affording the pupil an opportunity for a hearing
39       thereon. The notice may be oral or written and the hearing may be held
40       immediately after the notice is given. The hearing may be conducted
41       informally but shall include the following procedural due process require-
42       ments: (A) The right of the pupil to be present at the hearing; (B) the
43       right of the pupil to be informed of the charges; (C) the right of the pupil

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  1       to be informed of the basis for the accusation; and (D) the right of the
  2       pupil to make statements in defense or mitigation of the charges or ac-
  3       cusations. Refusal of a pupil to be present at the hearing will constitute
  4       a waiver of the pupil's opportunity for a hearing.
  5             (2) A short-term suspension may be imposed upon a pupil forthwith,
  6       and without affording the pupil or the pupil's parent or guardian a hearing
  7       if the presence of the pupil endangers other persons or property or sub-
  8       stantially disrupts, impedes or interferes with the operation of the school.
  9             (c) A written notice of any short-term suspension and the reason
10       therefor shall be given to the pupil involved and to the pupil's parent or
11       guardian within 24 hours after the suspension has been imposed and, in
12       the event the pupil has not been afforded a hearing prior to any short-
13       term suspension, an opportunity for an informal hearing shall be afforded
14       the pupil as soon thereafter as practicable but in no event later than 72
15       hours after such short-term suspension has been imposed. Any notice of
16       the imposition of a short-term suspension that provides an opportunity
17       for an informal hearing after such suspension has been imposed shall state
18       that failure of the pupil and the pupil's parent or guardian to attend the
19       hearing will result in a waiver of the pupil's opportunity for the hearing.
20             (c) (d) No suspension for an extended term and no expulsion shall be
21       imposed upon a pupil until an opportunity for a formal hearing thereon
22       is afforded the pupil. A written notice of any proposal to suspend for an
23       extended term or to expel from school, and the charges upon which the
24       proposal is based shall be given to the pupil proposed to be suspended
25       or expelled from school, and to the pupil's parent or guardian. Any notice
26       of a proposal to suspend for an extended term or to expel from school
27       shall state the time, date and place that the pupil will be afforded an
28       opportunity for a formal hearing, and that failure of the pupil and the
29       pupil's parent or guardian to attend the hearing will result in a waiver of
30       the pupil's opportunity for the hearing. The hearing shall be held not later
31       than 10 days after the date of the notice. The notice shall be accompanied
32       by a copy of this act and the regulations of the board of education adopted
33       under K.S.A. 72-8903, and amendments thereto.
34             (d) (e) Whenever any written notice is required under this act to be
35       given to a pupil or to a pupil's parent or guardian, it shall be sufficient if
36       the notice is mailed to the address on file in the school records of the
37       pupil. In lieu of mailing the written notice, the notice may be personally
38       delivered.
39             (e) (f) A formal hearing on a suspension or expulsion may be con-
40       ducted by any certificated employee or committee of certificated em-
41       ployees authorized by the board of education to conduct the hearing.
42        Sec.  39. K.S.A. 72-5392 is hereby amended to read as follows:
43       72-5392. As used in this act:

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  1             (a) "School district" means any public school district organized
  2       under the laws of this state.
  3             (b) "Exceptional children" and "Auxiliary school special education
  4       services" means (1) speech and hearing diagnostic services; (2) diagnostic
  5       psychological services; (3) therapeutic psychological and speech and hear-
  6       ing services; and (4) programs and services for exceptional children have
  7       the meanings respectively ascribed thereto in K.S.A. 72-962, and amend-
  8       ments thereto.
  9             (c) "Private, nonprofit elementary or secondary school" means
10       an organization which regularly offers education at the elementary
11       or secondary level, which is exempt from federal income taxation
12       under section 501 of the federal internal revenue code of 1954, as
13       amended, which conforms to the civil rights act of 1964, and at-
14       tendance at which satisfies any compulsory school attendance laws
15       of this state.
16             Sec.  40. K.S.A. 72-5393 is hereby amended to read as follows:
17       72-5393. Any Every school district which provides auxiliary school serv-
18       ices to pupils attending its schools shall provide on an equal basis the
19       same auxiliary school special education services to every pupil, whose
20       parent or guardian makes a request therefor, residing for exceptional chil-
21       dren who reside in the school district and attending attend a private,
22       nonprofit elementary or secondary school, whether such school is
23       located within or outside the school district, upon request of a parent
24       or guardian of any such child for the provision of such services. No school
25       district shall be required to provide such services outside the school
26       district. Any such school district may provide auxiliary special edu-
27       cation services to all pupils attending for exceptional children who attend
28       a private, nonprofit elementary or secondary school located within
29       the school district, whether or not all such pupils children reside in
30       the school district. Speech and hearing diagnostic services and diagnos-
31       tic psychological Special education services, if provided in the public
32       schools of the school district, shall be which are provided in any under
33       this section for exceptional children who attend a private, nonprofit
34       elementary or secondary school which is located in the school dis-
35       trict. Therapeutic psychological and speech and hearing services and pro-
36       grams and services for exceptional children, which cannot may be prac-
37       tically provided in any the private, nonprofit elementary or
38       secondary school which is located in the school district, shall be provided
39       or in the public schools of the school district, in a public center, or in
40       mobile units located off the private, nonprofit elementary or secondary
41       school premises as determined by the school district. The site for the
42       provision of special education services under this section for an
43       exceptional child shall be determined by the school district after

SB 129--Am. by H

38

  1       consultation with the parent or guardian of the child and with of-
  2       ficials of the private, nonprofit elementary or secondary school.
  3       Special education services provided under this section for exceptional chil-
  4       dren who attend a private, nonprofit elementary or secondary school are
  5       subject to the following requirements: (a) If the services are provided for
  6       in the private, nonprofit elementary or secondary school, amounts ex-
  7       pended for the provision of such services shall be an amount up to, but
  8       not more than, the average cost to the school district for the provision of
  9       the same services in the public schools of the school district for children
10       within the same category of exceptionality; (b) if the services are provided
11       for in the public schools of the school district, the services shall be pro-
12       vided on an equal basis with the provision of such services for exceptional
13       children attending the public schools; and, (c) if so the services are pro-
14       vided in the public schools of the school district or in a public center,
15       transportation to and from such public school or public center shall
16       be provided by the school district.
17             Sec.  41. K.S.A. 72-5394 is hereby amended to read as follows:
18       72-5394. No auxiliary school special education services shall be pro-
19       vided in connection with religious courses, devotional exercises, re-
20       ligious training, or any other religious activity.
21        Sec.  39 42. K.S.A. 38-1513a, 72-933, 72-961, 72-963, 72-963a, 72-
22       963b, 72-963c, 72-964, 72-965, 72-966, 72-967, 72-969, 72-970, 72-971,
23       72-972, 72-973, 72-973a, 72-975, 72-976, 72-977, 72-979, 72-980 and, 72-
24       981, 72-5392, 72-5393 and 72-5394 and K.S.A. 1998 Supp. 72-962, 72-
25       968, 72-974, 72-978, 72-983, 72-53,109 and 72-8902 are hereby repealed.
26        Sec.  40 43. This act shall take effect and be in force from and after
27       its publication in the Kansas register.