SECTIONS 56040-56048 - California Statutes

EDUCATION CODE

SECTION 56040-56048

56040. (a) Every individual with exceptional needs who is eligible
to receive special education instruction and related services under
this part, shall receive that instruction and those services at no
cost to his or her parents or, as appropriate, to him or her. A free
appropriate public education shall be available to individuals with
exceptional needs in accordance with Section 1412(a)(1) of Title 20
of the United States Code and Section 300.101 of Title 34 of the Code
of Federal Regulations.
(b) An individual, aged 18 through 21 years, who, in the
educational placement prior to his or her incarceration in an adult
correctional facility was not identified as being an individual with
exceptional needs or did not have an individualized education program
under this part, is not entitled to a free appropriate public
education pursuant to Section 1412(a)(1)(B)(ii) of Title 20 of the
United States Code.

56040.1. In accordance with Section 1412(a)(5) of Title 20 of the
United States Code and Section 300.114 of Title 34 of the Code of
Federal Regulations, each public agency shall ensure the following to
address the least restrictive environment for individuals with
exceptional needs:
(a) To the maximum extent appropriate, individuals with
exceptional needs, including children in public or private
institutions or other care facilities, are educated with children who
are nondisabled.
(b) Special classes, separate schooling, or other removal of
individuals with exceptional needs from the regular educational
environment occurs only if the nature or severity of the disability
is such that education in the regular classes with the use of
supplementary aids and services cannot be achieved satisfactorily.

56040.5. (a) State and local educational agency personnel are
prohibited, pursuant to paragraph (25) of subsection (a) of Section
1412 of Title 20 of the United States Code, from requiring an
individual with exceptional needs to obtain a prescription for a
medication that is a substance covered by the Controlled Substances
Act (21 U.S.C. Sec. 801 et seq.) as a condition of attending school,
receiving an assessment under subsection (a) or (c) of Section 1414
of Title 20 of the United States Code, or receiving services under
this part.
(b) Subdivision (a) does not create a federal prohibition against
teachers and other school personnel consulting or sharing
classroom-based observations with parents or guardians regarding a
pupil's academic and functional performance, his or her behavior in
the class or school, or the need for assessment for special education
and related services under paragraph (3) of subsection (a) of
Section 1412 of Title 20 of the United States Code.

56041. Except for those pupils meeting residency requirements for
school attendance specified in subdivision (a) of Section 48204, and
notwithstanding any other provision of law, if it is determined by
the individualized education program team that special education
services are required beyond the pupil's 18th birthday, the district
of residence responsible for providing special education and related
services to pupils between the ages of 18 to 22 years, inclusive,
shall be assigned, as follows:
(a) For nonconserved pupils, the last district of residence in
effect prior to the pupil's attaining the age of majority shall
become and remain as the responsible local educational agency, as
long as and until the parent or parents relocate to a new district of
residence. At that time, the new district of residence shall become
the responsible local educational agency.
(b) For conserved pupils, the district of residence of the
conservator shall attach and remain the responsible local educational
agency, as long as and until the conservator relocates or a new one
is appointed. At that time, the new district of residence shall
attach and become the responsible local educational agency.

56041.5. When an individual with exceptional needs reaches the age
of 18, with the exception of an individual who has been determined to
be incompetent under state law, the local educational agency shall
provide any notice of procedural safeguards required by this part to
both the individual and the parents of the individual. All other
rights accorded to a parent under this part shall transfer to the
individual with exceptional needs. The local educational agency shall
notify the individual and the parent of the transfer of rights.

56042. Notwithstanding any other provision of law, an attorney or
advocate for a parent of an individual with exceptional needs shall
not recommend placement in a nonpublic, nonsectarian school or agency
with which the attorney or advocate is employed or contracted, or
otherwise has a conflict of interest or from which the attorney or
advocate receives a benefit.

56043. The primary timelines affecting special education programs
are as follows:
(a) A proposed assessment plan shall be developed within 15
calendar days of referral for assessment, not counting calendar days
between the pupil's regular school sessions or terms or calendar days
of school vacation in excess of five schooldays, from the date of
receipt of the referral, unless the parent or guardian agrees in
writing to an extension, pursuant to subdivision (a) of Section
56321.
(b) A parent or guardian shall have at least 15 calendar days from
the receipt of the proposed assessment plan to arrive at a decision,
pursuant to subdivision (c) of Section 56321.
(c) Once a child has been referred for an initial assessment to
determine whether the child is an individual with exceptional needs
and to determine the educational needs of the child, these
determinations shall be made, and an individualized education program
team meeting shall occur within 60 days of receiving parental
consent for the assessment, pursuant to subdivision (a) of Section
56302.1, except as specified in subdivision (b) of that section, and
pursuant to Section 56344.
(d) The individualized education program team shall review the
pupil's individualized education program periodically, but not less
frequently than annually, pursuant to subdivision (d) of Section
56341.1.
(e) A parent or guardian shall be notified of the individualized
education program team meeting early enough to ensure an opportunity
to attend, pursuant to subdivision (b) of Section 56341.5. In the
case of an individual with exceptional needs who is 16 years of age
or younger, if appropriate, the meeting notice shall indicate that a
purpose of the meeting will be the consideration of the postsecondary
goals and transition services for the individual with exceptional
needs, and the meeting notice described in this subdivision shall
indicate that the individual with exceptional needs is invited to
attend, pursuant to subdivision (e) of Section 56341.5.
(f) (1) An individualized education program required as a result
of an assessment of a pupil shall be developed within a total time
not to exceed 60 calendar days, not counting days between the pupil's
regular school sessions, terms, or days of school vacation in excess
of five schooldays, from the date of receipt of the parent's or
guardian's written consent for assessment, unless the parent or
guardian agrees in writing to an extension, pursuant to Section
56344.
(2) A meeting to develop an initial individualized education
program for the pupil shall be conducted within 30 days of a
determination that the child needs special education and related
services pursuant to Section 300.323(c)(1) of Title 34 of the Code of
Federal Regulations and in accordance with Section 56344.
(g) (1) Beginning not later than the first individualized
education program to be in effect when the pupil is 16 years of age,
or younger if determined appropriate by the individualized education
program team, and updated annually thereafter, the individualized
education program shall include appropriate measurable postsecondary
goals and transition services needed to assist the pupil in reaching
those goals, pursuant to paragraph (8) of subdivision (a) of Section
56345.
(2) The individualized education program for pupils in grades 7 to
12, inclusive, shall include any alternative means and modes
necessary for the pupil to complete the district's prescribed course
of study and to meet or exceed proficiency standards for graduation,
pursuant to paragraph (1) of subdivision (b) of Section 56345.
(3) Beginning not later than one year before the pupil reaches the
age of 18 years, the individualized education program shall contain
a statement that the pupil has been informed of the pupil's rights
under this part, if any, that will transfer to the pupil upon
reaching the age of 18 years, pursuant to Section 56041.5,
subdivision (g) of Section 56345, and Section 300.520 of Title 34 of
the Code of Federal Regulations.
(h) Beginning at the age of 16 years or younger, and annually
thereafter, a statement of needed transition services shall be
included in the pupil's individualized education program, pursuant to
Section 56345.1 and Section 1414(d)(1)(A)(i)(VIII) of Title 20 of
the United States Code.
(i) A pupil's individualized education program shall be
implemented as soon as possible following the individualized
education program team meeting, pursuant to Section 300.323(c)(2) of
Title 34 of the Code of Federal Regulations and in accordance with
Section 56344.
(j) An individualized education program team shall meet at least
annually to review a pupil's progress, the individualized education
program, including whether the annual goals for the pupil are being
achieved, the appropriateness of the placement, and to make any
necessary revisions, pursuant to subdivision (d) of Section 56343.
The local educational agency shall maintain procedures to ensure that
the individualized education program team reviews the pupil's
individualized education program periodically, but not less
frequently than annually, to determine whether the annual goals for
the pupil are being achieved, and revises the individualized
education program as appropriate to address, among other matters, the
provisions specified in subdivision (d) of Section 56341.1, pursuant
to subdivision (a) of Section 56380.
(k) A reassessment of a pupil shall occur not more frequently than
once a year, unless the parent and the local educational agency
agree otherwise in writing, and shall occur at least once every three
years, unless the parent and the local educational agency agree, in
writing, that a reassessment is unnecessary, pursuant to Section
56381, and in accordance with Section 1414(a)(2) of Title 20 of the
United States Code.
(l) A meeting of an individualized education program team
requested by a parent or guardian to review an individualized
education program pursuant to subdivision (c) of Section 56343 shall
be held within 30 calendar days, not counting days between the pupil'
s regular school sessions, terms, or days of school vacation in
excess of five schooldays, from the date of receipt of the parent's
or guardian's written request, pursuant to Section 56343.5.
(m) If an individual with exceptional needs transfers from
district to district within the state, the following are applicable
pursuant to Section 56325:
(1) If the child has an individualized education program and
transfers into a district from a district not operating programs
under the same local plan in which he or she was last enrolled in a
special education program within the same academic year, the local
educational agency shall provide the pupil with a free appropriate
public education, including services comparable to those described in
the previously approved individualized education program, in
consultation with the parents or guardians, for a period not to
exceed 30 days, by which time the local educational agency shall
adopt the previously approved individualized education program or
shall develop, adopt, and implement a new individualized education
program that is consistent with federal and state law, pursuant to
paragraph (1) of subdivision (a) of Section 56325.
(2) If the child has an individualized education program and
transfers into a district from a district operating programs under
the same special education local plan area of the district in which
he or she was last enrolled in a special education program within the
same academic year, the new district shall continue, without delay,
to provide services comparable to those described in the existing
approved individualized education program, unless the parent and the
local educational agency agree to develop, adopt, and implement a new
individualized education program that is consistent with state and
federal law, pursuant to paragraph (2) of subdivision (a) of Section
56325.
(3) If the child has an individualized education program and
transfers from an educational agency located outside the state to a
district within the state within the same academic year, the local
educational agency shall provide the pupil with a free appropriate
public education, including services comparable to those described in
the previously approved individualized education program, in
consultation with the parents or guardians, until the local
educational agency conducts an assessment as specified in paragraph
(3) of subdivision (a) of Section 56325.
(4) In order to facilitate the transition for an individual with
exceptional needs described in paragraphs (1) to (3), inclusive, the
new school in which the pupil enrolls shall take reasonable steps to
promptly obtain the pupil's records, as specified, pursuant to
subdivision (b) of Section 56325.
(n) The parent or guardian shall have the right and opportunity to
examine all school records of the child and to receive complete
copies within five business days after a request is made by the
parent or guardian, either orally or in writing, and before any
meeting regarding an individualized education program of his or her
child or any hearing or resolution session pursuant to Chapter 5
(commencing with Section 56500), in accordance with Section 56504 and
Chapter 6.5 (commencing with Section 49060) of Part 27.
(o) Upon receipt of a request from a local educational agency
where an individual with exceptional needs has enrolled, a former
educational agency shall send the pupil's special education records,
or a copy thereof, to the new local educational agency within five
working days, pursuant to subdivision (a) of Section 3024 of Title 5
of the California Code of Regulations.
(p) The department shall do all of the following:
(1) Have a time limit of 60 calendar days after a complaint is
filed with the state educational agency to investigate the complaint.
(2) Give the complainant the opportunity to submit additional
information about the allegations in the complaint.
(3) Review all relevant information and make an independent
determination as to whether there is a violation of a requirement of
this part or Part B of the federal Individuals with Disabilities
Education Act (20 U.S.C. Sec. 1400 et seq.).
(4) Issue a written decision pursuant to Section 300.152(a)(5) of
Title 34 of the Code of Federal Regulations.
(q) A prehearing mediation conference shall be scheduled within 15
calendar days of receipt by the Superintendent of the request for
mediation, and shall be completed within 30 calendar days after the
request for mediation, unless both parties to the prehearing
mediation conference agree to extend the time for completing the
mediation, pursuant to Section 56500.3.
(r) Any request for a due process hearing arising from subdivision
(a) of Section 56501 shall be filed within two years from the date
the party initiating the request knew or had reason to know of facts
underlying the basis for the request, except that this timeline shall
not apply to a parent if the parent was prevented from requesting
the due process hearing, pursuant to subdivision (l) of Section
56505.
(s) The Superintendent shall ensure that, within 45 calendar days
after receipt of a written due process hearing request, the hearing
is immediately commenced and completed, including any mediation
requested at any point during the hearing process, and a final
administrative decision is rendered, pursuant to subdivision (f) of
Section 56502.
(t) If either party to a due process hearing intends to be
represented by an attorney in the due process hearing, notice of that
intent shall be given to the other party at least 10 calendar days
prior to the hearing, pursuant to subdivision (a) of Section 56507.
(u) Any party to a due process hearing shall have the right to be
informed by the other parties to the hearing, at least 10 calendar
days prior to the hearing, as to what those parties believe are the
issues to be decided at the hearing and their proposed resolution of
those issues, pursuant to paragraph (6) of subdivision (e) of Section
56505.
(v) Any party to a due process hearing shall have the right to
receive from other parties to the hearing, at least five business
days prior to the hearing, a copy of all documents, including all
assessments completed and not completed by that date, and a list of
all witnesses and their general area of testimony that the parties
intend to present at the hearing, pursuant to paragraph (7) of
subdivision (e) of Section 56505.
(w) An appeal of a due process hearing decision shall be made
within 90 calendar days of receipt of the hearing decision, pursuant
to subdivision (k) of Section 56505.
(x) When an individualized education program calls for a
residential placement as a result of a review by an expanded
individualized education program team, the individualized education
program shall include a provision for a review, at least every six
months, by the full individualized education program team of all of
the following pursuant to paragraph (2) of subdivision (c) of Section
7572.5 of the Government Code:
(1) The case progress.
(2) The continuing need for out-of-home placement.
(3) The extent of compliance with the individualized education
program.
(4) Progress toward alleviating the need for out-of-home care.
(y) A complaint filed with the department shall allege a violation
of the federal Individuals with Disabilities Education Act (20
U.S.C. Sec. 1400 et seq.) or a provision of this part that occurred
not more than one year prior to the date that the complaint is
received by the department, pursuant to Section 56500.2 and Section
300.153(c) of Title 34 of the Code of Federal Regulations.

56045. (a) The Superintendent shall send a notice to the governing
board of each local educational agency within 30 days of when the
Superintendent determines any of the following:
(1) The local educational agency is substantially out of
compliance with one or more significant provisions of this part, the
implementing regulations, provisions of the federal Individuals with
Disabilities Education Act (20 U.S.C. Sec. 1400 et seq.), or the
implementing regulations.
(2) The local educational agency fails to comply substantially
with corrective action orders issued by the department resulting from
focused monitoring findings or complaint investigations.
(3) The local educational agency fails to implement the decision
of a due process hearing officer for noncompliance with provisions of
this part, the implementing regulations, provisions of the federal
Individuals with Disabilities Education Act (20 U.S.C. Sec. 1400 et
seq.), or the implementing regulations, which noncompliance results
in the denial of, or impedes the delivery of, a free appropriate
public education for an individual with exceptional needs.
(b) The notice shall provide a description of the special
education and related services that are required by law and with
which the local educational agency is not in compliance.
(c) Upon receipt of the notification sent pursuant to subdivision
(a), the governing board shall at a regularly scheduled public
hearing address the issue of noncompliance.

56046. (a) An employee of a local educational agency shall not
directly or indirectly use or attempt to use the official authority
or influence of the employee for the purpose of intimidating,
threatening, coercing, or attempting to intimidate, threaten, or
coerce, any person, including, but not limited to, a teacher, a
provider of designated instruction and services, a paraprofessional,
an instructional aide, a behavioral aide, a health aide, other
educators or staff of the local educational agency, a private
individual or entity under contract with the local educational
agency, or a subordinate of the employee, for the purpose of
interfering with the action of that person at any time, to assist a
parent or guardian of a pupil with exceptional needs to obtain
services or accommodations for that pupil.
(b) If a person described in subdivision (a), believes an employee
or agent of a local educational agency is in violation of
subdivision (a) because of using or attempting to use official
authority or influence, that person may file a complaint under the
Uniform Complaint Procedures as set forth in Title 5 of the
California Code of Regulations. If a person files a complaint
pursuant to this subdivision, the state shall intervene directly and
the conditions for intervention in Section 4650 of Title 5 of the
California Code of Regulations are not applicable.
(c) This section does not limit or alter any right a person
described in subdivision (a) may have to file a complaint pursuant to
either a governing board-adopted grievance process or a collectively
bargained grievance process.
(d) This section does not do any of the following:
(1) Limit or alter the right or duty of a public school official
to direct or discipline an employee or contractor.
(2) Prevent a local educational agency from enforcing a law or
regulation regarding conflicts of interest, incompatible activities,
or the confidentiality of pupil records.
(e) (1) For purposes of this section, "services or accommodations"
includes information that would assist a parent or guardian to
obtain a free appropriate public education for his or her child as
guaranteed by the federal Individuals with Disabilities Education Act
(20 U.S.C. Sec. 1400 et seq.), or other services or accommodations
guaranteed under Section 504 of the federal Rehabilitation Act of
1973 (29 U.S.C. Sec. 794) and the federal Americans with Disabilities
Act of 1990 (42 U.S.C. Sec. 12101 et seq.), as well as state laws
regarding individuals with exceptional needs.
(2) For purposes of this section, "use of official authority or
influence" includes promising to confer or conferring any benefit,
affecting or threatening to affect any reprisal, or taking, directing
others to take, recommending, processing, or approving any personnel
action, including, but not limited to, appointment, promotion,
transfer, assignment, performance evaluation, suspension, or other
disciplinary action. "Use of official authority or influence" does
not include good faith advocacy by an employee of a public school
agency, to any person including another agency employee or
contractor, regarding the services, if any, to be provided to a pupil
under the laws referred to in paragraph (1).
(f) This section does not diminish the rights, privileges, or
remedies of a public school employee under any other federal or state
law or under an employment contract or collective bargaining
agreement.
(g) A school employee's or contractor's assistance offered to a
parent or guardian of a pupil with exceptional needs to obtain
services or accommodations for that pupil shall not interfere with
the school employee's or contractor's regular duties for the local
educational agency.

56048. The superintendent shall review the information and
calculations submitted by special education local plan areas in
support of all apportionment computations described in this part. The
review shall be conducted on the data submitted during the initial
year of apportionment and for the first succeeding fiscal year only.
Adjustments to any year's apportionment shall be received by the
superintendent from the special education local plan area prior to
the end of the first fiscal year following the fiscal year to be
adjusted. The superintendent shall consider and adjust only the
information and computational factors originally established during
an eligible fiscal year, if the superintendent's review determines
that they are correct.