H.B. 2837 addresses two matters. It adds to the law a definition of the term "boarding school" and it amends the state's special education law.
The bill adds to the law a definition of the term "boarding school" which is a facility with accreditation acceptable to the Secretary of Health and Environment that provides 24-hour care to school age children and provides education as its primary function. Another amendment then excludes boarding schools from requirements applicable to child care facilities regarding the number of qualified persons who must supervise and provide care to residents.
Overview. The bill modifies and supplements the present state law. The bill's purpose is to assure state compliance with federal law and to provide for an appropriate public education for exceptional children (includes gifted, as well as children with disabilities). The requirements contained in the bill concerning children with disabilities exist in federal law. The legislation is not to be construed to create any rights exceeding those created by federal law. One exception is the requirement of parental consent prior to a change in placement of an exceptional child.
The following definitions are critical to understanding the nature of the special education requirement.
Free Appropriate Public Education. The term means special education and related services that:
Individualized Education Program (IEP). The term means a written statement for each exceptional child that is developed, reviewed, and revised in accordance with the law.
Special Education. This term means specially designed instruction provided at no cost to parents to meet the unique needs of an exceptional child, including:
Related Services. The term means transportation and includes developmental, corrective, and other supportive services, including speech-language pathology and audiology services; psychological services; physical and occupational therapy; recreation, including therapeutic recreation; social work services; counseling services, including rehabilitation counseling; orientation and mobility services; and medical services; except that medical services are for diagnostic and evaluation purposes only, as required to assist an exceptional child benefit from special education and early identification and assessment of disabling conditions in children.
Supplementary Aids and Services. The term includes aids, services, and other supports provided in regular education classes or other education-related settings to enable children with disabilities to be educated with nondisabled children to the maximum extent appropriate.
Children with Disabilities. The term means children with mental retardation, hearing impairments including deafness, speech or language impairments, visual impairments including blindness, serious emotional disturbances, orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities.
Substantial Change in Placement. The term means moving a child with disabilities from a less restrictive environment to a more restrictive environment or vice versa for more than 25.0 percent of the child's school day, or addition to, or deletion from, a child's IEP of a related service or supplementary service.
State Board of Education Duties
General Requirements. The bill imposes upon the State Board of Education the responsibility of assuring that the requirements of the federal law are met and that educational programs for exceptional children, including programs administered by any other state agency:
This requirement does not limit the responsibility of any other state agency to provide or pay the costs of an appropriate public education for an exceptional child.
Performance Goals and Indicators. The State Board is directed to:
Assessment Programs. The State Board and each local school board must include, to the extent required by state and federal law, exceptional children in general state and districtwide assessment programs, with appropriate accommodations where necessary. The State Board and each board must:
The State Board must report to the public with the same frequency and in the same detail as it reports on the assessment of nondisabled children, the following:
Mediation for Dispute Resolution. The State Board must establish voluntary mediation procedures, under direction of a qualified and impartial mediator, in an attempt to resolve disputes between parents and school districts. The State Board also may establish procedures to require parents who choose not to use the mediation process to meet with a disinterested party who would explain the benefits of mediation. The State Board pays the costs of the mediation process and the mediation educational initiative.
State Advisory Council for Special Education
Size. The amendments remove the current nine-member limit on the State Advisory Council for Special Education and provide greater specificity with respect to the Council's representation and duties.
Representation. The Council's membership must be representative of the state population and be comprised of persons involved in, or concerned with, the education of exceptional children, including parents of exceptional children; individuals with disabilities; teachers; representatives of institutions of higher education that prepare special education and related services personnel; state and local education officials; administrators of programs for exceptional children; representatives of other state agencies involved in financing or delivering related services to exceptional children; representatives of private schools and public charter schools; at least one representative of a vocational, community, or business organization concerned with provision of transition services to children with disabilities; and representatives from the state juvenile and adult corrections agencies. A majority of the members must be individuals with disabilities or parents of children with disabilities.
Duties. The Advisory Council is charged to:
Annual Organizational Meeting Location
An amendment deletes the requirement that the Advisory Council's annual organizational meeting be held in Topeka.
All State Agencies
Interagency Agreements. State agencies are directed to enter into interagency agreements in making an appropriate public education available to all exceptional children residing in the state. The State Board of Education must establish procedures for resolving interagency disputes, including procedures under which local educational agencies may initiate proceedings to secure reimbursement or enforcement of provisions of an interagency agreement.
Duties of Local School Boards
General Requirements. School district boards are required to implement procedures to assure that all exceptional children in the school district, including those enrolled in private schools, who are in need of special education and related services are identified, located, and evaluated.
Each school board must provide a free appropriate public education for exceptional children enrolled full-time in the school district, for children with disabilities placed in a private school or facility by the school district, and for children with disabilities who have been suspended for an extended term or expelled from school.
Least Restrictive Environment. A school district must, to the maximum extent appropriate, educate children with disabilities with children who are not disabled, and provide special classes, separate schooling, or remove children with disabilities from the regular education environment only when the nature or severity of the disability of the child is such that education in regular classes with supplementary aids and services cannot be achieved satisfactorily.
Special Education Services in Nonpublic Schools. Consistent with the number of exceptional children enrolled in private schools in the school district, a board must provide for participation of these children in special education and related services as follows: amounts spent for special education services must include an amount equal to a proportionate amount of the district's federal special education funds; and, to the extent consistent with law, the services may be provided to exceptional children on the premises of private schools.
A school district is not required to pay special education and related services costs of education at a private school if the district made an appropriate public education available to the child and the parents elected to place the child in the private school.
If the parents of an exceptional child who previously received special education and related services from a school district enroll the child in a private school without approval by the school district, a hearing officer or court may require the district to reimburse the parents for the cost of that enrollment if the finding is that the school district had not made an appropriate public education available to the child in a timely manner prior to the enrollment. However, the amount of reimbursement may be reduced or denied if:
(The notice requirement is inapplicable when the parent is illiterate and cannot write in English, when compliance with the notice requirement likely would result in physical or serious emotional harm to the child, or when the parent had not received notice from the district of the parent's obligation to provide the notice.)
Duty of Parents of a Child With a Disability
In General. A duty is imposed on the parent to require the child to attend school to receive the special education and related services which are included in the child's IEP or to provide for such services privately (excludes gifted).
Failure of a parent to comply with this requirement causes the child to be deemed a child in need of care under the Code for Care of Children.
Evaluation and Reevaluation of Children
Initial Evaluation. Agencies are required to conduct an initial evaluation of a child before providing special education and related services. This evaluation determines if a child is an exceptional child and, if so, the child's educational needs.
The agency must obtain informed consent from the parent before the evaluation is conducted. This is not the same as consent for placement for special education services. If the parents refuse consent, the agency may pursue an evaluation by opting for mediation or due process.
All Evaluations. Notice must be provided to the parents of a child which describes any proposed evaluation procedures. In conducting the evaluation, the agency must:
The agency must ensure that:
A team of professionals and the parent determine if the child is exceptional.
As part of an initial evaluation, if appropriate, and as part of a reevaluation, the IEP team and other qualified professionals must:
Reevaluations. Agencies are required to perform a reevaluation of an exceptional child when conditions warrant it or the child's parent or teacher requests it, but at least once every three years.
An agency must obtain parental consent prior to conducting any reevaluation of an exceptional child, unless the agency can demonstrate that it took reasonable measures to obtain the consent and the child's parent failed to respond.
If the IEP team and other professionals determine no additional data are needed to determine if the child continues to be an exceptional child, the agency notifies the child's parents of the determination and the reasons for it and of their right to request an assessment to determine whether the child continues to be a child with a disability. The agency is not required to conduct an assessment unless requested by the child's parents.
Individualized Education Program (IEP)
The IEP Team. The law specifies a team of persons who are responsible for developing the IEP of a child. This team must be composed of:
Developing the IEP. In developing a child's IEP, the following must be considered:
What the IEP Must Include. The IEP for each exceptional child must include:
The Regular Education Teacher. The regular education teacher of the child, a member of the IEP team, participates in the development of the IEP, including the behavioral interventions and strategies, supplementary aids and services, program modifications, support for school personnel, and review and revision of the child's IEP.
Annual IEP Review. The team must review the child's IEP at least annually to determine whether the annual goals for the child are being achieved and to revise the IEP to address: lack of expected progress toward the annual goals and in the general curriculum; the results of any reevaluation; information about the child provided to, or by, the parents; the child's anticipated needs; or other matters.
Rights of Parents of Exceptional Children
Listing of Rights. The bill contains the following listing of rights of parents of exceptional children (the listing is not exclusive):
Age of Majority--Transfer of Rights
In General. When a child with a disability reaches age 18, except for a child with a disability who has been determined to be incompetent under state law, the rights of the parent transfer to the individual. Also, the rights of the parent transfer to the individual if incarcerated in an adult or juvenile federal, state, or local correctional institution.
Change in Special Education Placement or
Notification Requirements. When an agency proposes to initiate or change placement or services, the agency must give notice to the parents. The notice must include:
Due Process--Placement of the Child During Proceedings
In General. The bill contains extensive due process procedures, most of which presently are found in the state law.
Educational Placement. During the course of any due process proceedings, unless the parties otherwise agree, the child remains in the then-current educational placement. In the case of the initial admission of the child to school, the child normally will be placed in the appropriate regular education classroom or program. Some exceptions, discussed below, apply.
Change of Placement of a Child
Upon Order of School Personnel. School personnel may order a change in the placement of a child with a disability to:
Before, or not later than ten days after, taking the first disciplinary action (described above), if it has not already done so, the agency must conduct a functional behavioral assessment and implement a behavioral intervention plan for the child. If the child already has such a plan, the IEP team must review the plan and modify it, as necessary, to address the behavior.
Change of Placement By a Hearing Officer. A hearing officer may order a change in the placement of a child with a disability to an appropriate interim alternative educational setting for not more than 45 calendar days when the hearing officer:
Interim Alternative Education Setting. Any interim alternative educational setting must enable the child to continue to participate in the general curriculum, although in another setting, and to continue to receive services and modifications, including those described in the child's current IEP, that will enable the child to meet the goals set out in the IEP and include services and modifications designed to address the behavior so that it does not recur.
Procedures. If a disciplinary action for weapons or drug possession or for other serious misconduct for which a change of placement for more than ten school days is contemplated for a child with a disability, the following procedures apply:
Manifestation Determinations. A determination can be made that the child's behavior is not a manifestation of a disability when the IEP team considers all relevant information, including evaluation and diagnostic results and information supplied by the parents, observations of the child, and the child's IEP and placement, and finds:
If the determination is that the child's behavior is not a manifestation of the disability, the disciplinary procedures applicable to children without disabilities may be applied to the child, except that an appropriate public education must continue to be provided to the child during the period of disciplinary action.
Parent Due Process. If the parent disagrees with a determination that the child's behavior was not a manifestation of the disability or with any decision regarding placement, a due process hearing may be requested. When this occurs, an expedited hearing is held. The hearing officer then determines whether the agency has demonstrated that the child's behavior was not a manifestation of such child's disability.
The expedited hearing is conducted by a due process hearing officer appointed by the State Board. The child remains in the interim alternative educational setting pending the decision of the hearing officer or for 45 days, whichever occurs first, unless the parent and the agency agree otherwise.
Child Placement. When a child has been placed in an interim alternative educational setting and school personnel propose to change the child's placement after expiration of the interim alternative placement, during the pendency of any proceeding to challenge the proposed change in placement, the child is returned to the placement the child was in prior to the interim alternative educational setting. If the agency believes it is dangerous for the child to be returned to the child's original placement, the agency may request an expedited hearing on the proposed change in placement.
Disciplinary Actions--A Child Not Yet
Identified with a Disability
Asserting a Disability. A child who has not been determined to be eligible for special education and related services and who engages in behavior that violates a rule or code of conduct of the school district or provisions of the law may assert the protections provided in the law if, before the offensive behavior occurred, the district had knowledge that the child was a child with a disability. A school district is deemed to have knowledge that a child had a disability if:
If a request is made for evaluation of a child during the time period in which the child is subjected to disciplinary action, an expedited evaluation must be conducted. If the child is determined to have a disability, the district must provide special education and related services. However, pending the results of the evaluation, the child remains in the educational placement determined by school authorities, which may be long-term suspension or expulsion from school.
Reporting of Crimes
Reporting Authorized. An agency may report a crime committed by a child with a disability to appropriate authorities and these authorities may exercise their responsibilities under federal, state, or local law pertaining to crimes.
Certain Information Provided. When an agency reports a crime by a child with a disability, the agency must ensure that copies of the special education and disciplinary records of the child are available for consideration by the authority to whom the crime is reported.
Special Education Services--Correctional Institutions
Correctional institutions are exempt from the special education services requirements of the Kansas law to the extent authorized by the federal law.
Repeal of the Auxiliary School Services Law
Three sections of law, enacted in 1980, which specify provision by a school district of auxiliary school services to pupils attending private, nonprofit elementary and secondary schools located in the district are repealed. Auxiliary school services include speech and hearing diagnostic services, diagnostic psychological services, therapeutic psychological and speech and hearing services, and programs and services for exceptional children.
Proponents of H.B. 2837, as introduced, included the sponsor, Representative Deena Horst, the President of St. John's Military School (Salina), and the Secretary of Health and Environment.
Proponents explained that Department of Health and Environment staffing ratio requirements for licensed child care facilities are not appropriate for a facility such as St. John's upon which the requirements impose an unnecessary financial burden. Cited in connection with this concern was K.A.R. 28-4-271(d)3 which states that each facility must have a minimum of one child care staff member on duty and available for every seven residents during waking hours and a minimum of one for every ten during sleeping hours. St. John's youngest students are 12 to 13 years old. Cadets sleep in three separate buildings. Now, St. John's has a minimum of one staff member awake and patrolling in each building while cadets are asleep. Also, there are video cameras and intercoms that allow duty personnel to listen and watch for cadets who might need assistance during the night. This is believed to provide sufficient supervision. According to the President, St. John's Military School is the only currently licensed boarding school in the state.
There were no other conferees.
In 1997, the U.S. Congress enacted major changes in the federal Individuals with Disabilities Act (IDEA). This law largely defines how states and school districts must provide educational services to children with disabilities.
The 1997 interim Special Committee on Education, in its study entitled "Special Education Funding and Service Delivery Matters," among other things, acquainted itself with these changes in the law. (For more information, see Committee Reports to the 1998 Kansas Legislature, pp. 5-7 to 5-11.) Testimony provided to the interim Committee by the State Board of Education revealed that the Board was in the process of analyzing the new federal law and that it expected to be proposing several changes in the Kansas special education law so as to bring Kansas law into conformity with the federal law. H.B. 2837 contains these recommendations. (H.B. 2837 replaces S.B. 591, the original vehicle for consideration of these amendments.)
Staff of the State Board of Education explained to the Senate Committee on Education that provisions of the bill were crafted carefully so as to meet the federal requirements and to avoid imposition under state law of any additional or more stringent services requirements than are necessary to comply with the federal law.
The fiscal note on S.B. 591 (now H.B. 2837) indicated that implementation of the bill would require additional FY 1999 expenditures of $250,000 from the State General Fund and $72,880 from federal funds (a total of $322,880). The estimate was that $250,000 would be required to develop and administer alternative assessments and accommodations to regular assessments for exceptional children. The federal funds would be used for establishing a mediation process for dispute resolution--a new requirement of federal law.
Amendments to S.B. 591 by the Senate Education Committee were the product of the work of a subcommittee appointed to consider concerns expressed about the measure. According to the subcommittee report, with one exception, the amendments were intended to be consistent with the concept of minimum state compliance with the federal law. The exception is the requirement for parental approval of any change in a child's placement. Another related change is the proposed repeal of the auxiliary services statutes referred to in the brief (above). These amendments, except the one on parental approval, are included in H.B. 2837, as amended by the Senate Education Committee.
The Kansas Association of School Boards (KASB) and United School Administrators (USA) presented testimony in support of the bill (S.B. 591). KASB suggested several proposed amendments for the Committee's consideration, most of which were recommended by the subcommittee and adopted by the Committee. The spokesperson for Wichita (USD 259) proposed the alternative of adopting legislation simply expressing state conformance to the requirements of the federal law. Spokespersons for the Kansas Council on Developmental Disabilities and Kansas Advocacy and Protective Services generally supported the legislation, but expressed concern about the proposal to eliminate the requirement for parental consent for special education services changes of placement. The Vice-Chairperson of the State Advisory Council on Special Education proposed elimination of the requirement that the Council's annual organizational meeting be held in Topeka. (This change was adopted by the Senate Education Committee and is included in H.B. 2837.)
The Senate Committee of the Whole amendment added the requirement (described above) of obtaining parental consent for changes in placement of a child in special education services.
1. *Supplemental notes are prepared by the Legislative Research Department and do not express legislative intent. The supplemental note and fiscal note for this bill may be accessed on the Internet at http://www.ink.org/public/legislative/fulltext-bill.html.