SECTIONS 56320-56331 - California Statutes

EDUCATION CODE

SECTION 56320-56331

56320. Before any action is taken with respect to the initial
placement of an individual with exceptional needs in special
education instruction, an individual assessment of the pupil's
educational needs shall be conducted, by qualified persons, in
accordance with requirements including, but not limited to, all of
the following:
(a) Testing and assessment materials and procedures used for the
purposes of assessment and placement of individuals with exceptional
needs are selected and administered so as not to be racially,
culturally, or sexually discriminatory. Pursuant to Section 1412(a)
(6)(B) of Title 20 of the United States Code, the materials and
procedures shall be provided in the pupil's native language or mode
of communication, unless it is clearly not feasible to do so.
(b) Tests and other assessment materials meet all of the following
requirements:
(1) Are provided and administered in the language and form most
likely to yield accurate information on what the pupil knows and can
do academically, developmentally, and functionally, unless it is not
feasible to so provide or administer as required by Section 1414(b)
(3)(A)(ii) of Title 20 of the United States Code.
(2) Are used for purposes for which the assessments or measures
are valid and reliable.
(3) Are administered by trained and knowledgeable personnel and
are administered in accordance with any instructions provided by the
producer of the assessments, except that individually administered
tests of intellectual or emotional functioning shall be administered
by a credentialed school psychologist.
(c) Tests and other assessment materials include those tailored to
assess specific areas of educational need and not merely those that
are designed to provide a single general intelligence quotient.
(d) Tests are selected and administered to best ensure that when a
test administered to a pupil with impaired sensory, manual, or
speaking skills produces test results that accurately reflect the
pupil's aptitude, achievement level, or any other factors the test
purports to measure and not the pupil's impaired sensory, manual, or
speaking skills unless those skills are the factors the test purports
to measure.
(e) Pursuant to Section 1414(b)(2)(B) of Title 20 of the United
States Code, no single measure or assessment is used as the sole
criterion for determining whether a pupil is an individual with
exceptional needs or determining an appropriate educational program
for the pupil.
(f) The pupil is assessed in all areas related to the suspected
disability including, if appropriate, health and development, vision,
including low vision, hearing, motor abilities, language function,
general intelligence, academic performance, communicative status,
self-help, orientation and mobility skills, career and vocational
abilities and interests, and social and emotional status. A
developmental history shall be obtained, when appropriate. For pupils
with residual vision, a low vision assessment shall be provided in
accordance with guidelines established pursuant to Section 56136. In
assessing each pupil under this article, the assessment shall be
conducted in accordance with Sections 300.304 and 300.305 of Title 34
of the Code of Federal Regulations.
(g) The assessment of a pupil, including the assessment of a pupil
with a suspected low incidence disability, shall be conducted by
persons knowledgeable of that disability. Special attention shall be
given to the unique educational needs, including, but not limited to,
skills and the need for specialized services, materials, and
equipment consistent with guidelines established pursuant to Section
56136.
(h) As part of an initial assessment, if appropriate, and as part
of any reassessment under Part B of the federal Individuals with
Disabilities Education Act (20 U.S.C. Sec. 1400 et seq.) and this
part, the group that includes members of the individualized education
program team, and other qualified professionals, as appropriate,
shall follow the procedures specified in Section 1414(c) of Title 20
of the United States Code. The group may conduct its review without a
meeting.
(i) Each local educational agency shall ensure that assessments of
individuals with exceptional needs who transfer from one district to
another district in the same academic year are coordinated with the
individual's prior and subsequent schools, as necessary and as
expeditiously as possible, in accordance with Section 1414(b)(3)(D)
of Title 20 of the United States Code, to ensure prompt completion of
the full assessment.

56320.1. All identification, evaluation, and assessment procedures
for individuals with exceptional needs who are younger than three
years of age shall be provided pursuant to Chapter 4.4 (commencing
with Section 56425) and the California Early Intervention Services
Act, Title 14 (commencing with Section 95000) of the Government Code.

56321. (a) If an assessment for the development or revision of the
individualized education program is to be conducted, the parent or
guardian of the pupil shall be given, in writing, a proposed
assessment plan within 15 days of the referral for assessment not
counting days between the pupil's regular school sessions or terms or
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. However, in any event, the assessment plan
shall be developed within 10 days after the commencement of the
subsequent regular school year or the pupil's regular school term as
determined by each district's school calendar for each pupil for whom
a referral has been made 10 days or less prior to the end of the
regular school year. In the case of pupil school vacations, the
15-day time shall recommence on the date that the pupil's regular
schooldays reconvene. A copy of the notice of a parent's or guardian'
s rights shall be attached to the assessment plan. A written
explanation of all the procedural safeguards under the federal
Individuals with Disabilities Education Act (20 U.S.C. Sec. 1400 et
seq.), and the rights and procedures contained in Chapter 5
(commencing with Section 56500), shall be included in the notice of a
parent's or guardian's rights, including information on the
procedures for requesting an informal meeting, prehearing mediation
conference, mediation conference, or due process hearing; the
timelines for completing each process; whether the process is
optional; and the type of representative who may be invited to
participate.
(b) The proposed assessment plan given to parents or guardians
shall meet all the following requirements:
(1) Be in language easily understood by the general public.
(2) Be provided in the native language of the parent or guardian
or other mode of communication used by the parent or guardian, unless
to do so is clearly not feasible.
(3) Explain the types of assessments to be conducted.
(4) State that no individualized education program will result
from the assessment without the consent of the parent.
(c) (1) The local educational agency proposing to conduct an
initial assessment to determine if the child qualifies as an
individual with exceptional needs shall make reasonable efforts to
obtain informed consent from the parent of the child before
conducting the assessment, in accordance with Section 1414(a)(1)(D)
of Title 20 of the United States Code.
(2) If the parent of the child does not provide consent for an
initial assessment, or the parent fails to respond to a request to
provide the consent, the local educational agency may, but is not
required to, pursue the initial assessment utilizing the procedures
described in Section 1415 of Title 20 of the United States Code and
in accordance with paragraph (3) of subdivision (a) of Section 56501
and subdivision (e) of Section 56506.
(3) In accordance with Section 300.300(a)(3)(ii) of Title 34 of
the Code of Federal Regulations, the local educational agency does
not violate its obligation under Section 300.111 and Sections 300.301
to 300.311, inclusive, of Title 34 of the Code of Federal
Regulations if it declines to pursue the assessment.
(4) The parent or guardian shall have at least 15 days from the
receipt of the proposed assessment plan to arrive at a decision. The
assessment may begin immediately upon receipt of the consent.
(d) Consent for initial assessment shall not be construed as
consent for initial placement or initial provision of special
education and related services to an individual with exceptional
needs, pursuant to Section 1414(a)(1)(D)(i)(I) of Title 20 of the
United States Code.
(e) In accordance with Section 300.300(d)(1) of Title 34 of the
Code of Federal Regulations, parental consent is not required before
reviewing existing data as part of an assessment or reassessment, or
before administering a test or other assessment that is administered
to all children, unless before administration of that test or
assessment, consent is required of the parents of all the children.
(f) Pursuant to Section 1414(a)(1)(E) of Title 20 of the United
States Code, the screening of a pupil by a teacher or specialist to
determine appropriate instructional strategies for curriculum
implementation shall not be considered to be an assessment for
eligibility for special education and related services.
(g) In accordance with Section 300.300(d)(5) of Title 34 of the
Code of Federal Regulations, to meet the reasonable efforts
requirement in subdivision (c), the local educational agency shall
document its attempts to obtain parental consent using the procedures
in subdivision (h) of Section 56341.5.

56321.1. If the child is a ward of the state and is not residing
with his or her parent, the agency shall, pursuant to clause (iii) of
subparagraph (D) of paragraph (1) of subsection (a) of Section 1414
of Title 20 of the United States Code, make reasonable efforts to
obtain the informed consent from the parent, as defined in Section
56028, of the child for an initial assessment to determine whether
the child is an individual with exceptional needs.

56321.5. The copy of the notice of parent rights shall include the
right to electronically record the proceedings of individualized
education program team meetings as specified in subdivision (g) of
Section 56341.1.

56321.6. The copy of the notice of parent rights shall include
information regarding the state special schools for pupils who are
deaf, hard of hearing, blind, visually impaired, or deaf-blind.

56322. The assessment shall be conducted by persons competent to
perform the assessment, as determined by the local educational
agency.

56323. Admission of a pupil to special education instruction shall
be made only in accordance with this article, Article 2.5 (commencing
with Section 56333) and standards established by the board and upon
a recommendation by the individualized education program team.

56324. (a) Any psychological assessment of pupils shall be made in
accordance with Section 56320 and shall be conducted by a
credentialed school psychologist who is trained and prepared to
assess cultural and ethnic factors appropriate to the pupil being
assessed.
(b) Any health assessment of pupils shall be made in accordance
with Section 56320 and shall be conducted by a credentialed school
nurse or physician who is trained and prepared to assess cultural and
ethnic factors appropriate to the pupil being assessed.

56325. (a) (1) As required by subclause (I) of clause (i) of
subparagraph (C) of paragraph (2) of subsection (d) of Section 1414
of Title 20 of the United States Code, the following shall apply to
special education programs for individuals with exceptional needs who
transfer from district to district within the state. In the case of
an individual with exceptional needs who 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, 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.
(2) In the case of an individual with exceptional needs who 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 federal and state law.
(3) As required by subclause (II) of clause (i) of subparagraph
(C) of paragraph (2) of subsection (d) of Section 1414 of Title 20 of
the United States Code, the following shall apply to special
education programs for individuals with exceptional needs who
transfer from an educational agency located outside the State of
California to a district within California. In the case of an
individual with exceptional needs who transfers from district to
district 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, until the local educational agency conducts an assessment
pursuant to paragraph (1) of subsection (a) of Section 1414 of Title
20 of the United States Code, if determined to be necessary by the
local educational agency, and develops a new individualized education
program, if appropriate, that is consistent with federal and state
law.
(b) (1) To facilitate the transition for an individual with
exceptional needs described in subdivision (a), the new school in
which the individual with exceptional needs enrolls shall take
reasonable steps to promptly obtain the pupil's records, including
the individualized education program and supporting documents and any
other records relating to the provision of special education and
related services to the pupil, from the previous school in which the
pupil was enrolled, pursuant to paragraph (2) of subsection (a) of
Section 99.31 of Title 34 of the Code of Federal Regulations.
(2) The previous school in which the individual with exceptional
needs was enrolled shall take reasonable steps to promptly respond to
the request from the new school.
(c) If whenever a pupil described in subdivision (a) was placed
and residing in a residential nonpublic, nonsectarian school, prior
to transferring to a district in another special education local plan
area, and this placement is not eligible for funding pursuant to
Section 56836.16, the special education local plan area that contains
the district that made the residential nonpublic, nonsectarian
school placement is responsible for the funding of the placement,
including related services, for the remainder of the school year. An
extended year session is included in the school year in which the
session ends. This subdivision also applies to special education and
related services required under Section 7573 of the Government Code
for an individual with exceptional needs who was placed in a
residential placement by an expanded individualized education program
team, pursuant to Section 7572.5 of the Government Code, if the
parent of the individual moves during the course of the year to a
district in another special education local plan area.

56326. A pupil may be referred, as appropriate, for further
assessment and recommendations to the California Schools for the Deaf
or Blind or the Diagnostic Centers.

56327. The personnel who assess the pupil shall prepare a written
report, or reports, as appropriate, of the results of each
assessment. The report shall include, but not be limited to, all the
following:
(a) Whether the pupil may need special education and related
services.
(b) The basis for making the determination.
(c) The relevant behavior noted during the observation of the
pupil in an appropriate setting.
(d) The relationship of that behavior to the pupil's academic and
social functioning.
(e) The educationally relevant health and development, and medical
findings, if any.
(f) For pupils with learning disabilities, whether there is such
a discrepancy between achievement and ability that it cannot be
corrected without special education and related services.
(g) A determination concerning the effects of environmental,
cultural, or economic disadvantage, where appropriate.
(h) The need for specialized services, materials, and equipment
for pupils with low incidence disabilities, consistent with
guidelines established pursuant to Section 56136.

56328. Notwithstanding the provisions of this chapter, a special
education local plan area may utilize a schoolsite level and a
regional level service, as provided for under Section 56336.2 as it
read prior to July 28, 1980, to provide the services required by this
chapter.

56329. As part of the assessment plan given to parents or guardians
pursuant to Section 56321, the parent or guardian of the pupil shall
be provided with a written notice that shall include all of the
following information:
(a) (1) Upon completion of the administration of tests and other
assessment materials, an individualized education program team
meeting, including the parent or guardian and his or her
representatives, shall be scheduled, pursuant to Section 56341, to
determine whether the pupil is an individual with exceptional needs
as defined in Section 56026, and to discuss the assessment, the
educational recommendations, and the reasons for these
recommendations.
(2) In making a determination of eligibility under paragraph (1),
a pupil shall not, pursuant to Section 1414(b)(5) of Title 20 of the
United States Code, and Section 300.306(b) of Title 34 of the Code of
Federal Regulations, be determined to be an individual with
exceptional needs if the determinant factor for the determination is
one of the following in subparagraphs (A) to (C), inclusive, plus
subparagraph (D):
(A) Lack of appropriate instruction in reading, including the
essential components of reading instruction as defined in Section
6368(3) of Title 20 of the United States Code.
(B) Lack of appropriate instruction in mathematics.
(C) Limited-English proficiency.
(D) If the pupil does not otherwise meet the eligibility criteria
under Section 300.8(a) of Title 34 of the Code of Federal
Regulations.
(3) A copy of the assessment report and the documentation of
determination of eligibility shall be given to the parent or
guardian.
(b) A parent or guardian has the right to obtain, at public
expense, an independent educational assessment of the pupil from
qualified specialists, as defined by regulations of the board, if the
parent or guardian disagrees with an assessment obtained by the
public education agency, in accordance with Section 300.502 of Title
34 of the Code of Federal Regulations. A parent or guardian is
entitled to only one independent educational assessment at public
expense each time the public education agency conducts an assessment
with which the parent or guardian disagrees. If a public education
agency observed the pupil in conducting its assessment, or if its
assessment procedures make it permissible to have in-class
observation of a pupil, an equivalent opportunity shall apply to an
independent educational assessment of the pupil in the pupil's
current educational placement and setting, and observation of an
educational placement and setting, if any, proposed by the public
education agency, regardless of whether the independent educational
assessment is initiated before or after the filing of a due process
hearing proceeding.
(c) The public education agency may initiate a due process hearing
pursuant to Chapter 5 (commencing with Section 56500) to show that
its assessment is appropriate. If the final decision resulting from
the due process hearing is that the assessment is appropriate, the
parent or guardian maintains the right for an independent educational
assessment, but not at public expense.
If the parent or guardian obtains an independent educational
assessment at private expense, the results of the assessment shall be
considered by the public education agency with respect to the
provision of free appropriate public education to the child, and may
be presented as evidence at a due process hearing pursuant to Chapter
5 (commencing with Section 56500) regarding the child. If a public
education agency observed the pupil in conducting its assessment, or
if its assessment procedures make it permissible to have in-class
observation of a pupil, an equivalent opportunity shall apply to an
independent educational assessment of the pupil in the pupil's
current educational placement and setting, and observation of an
educational placement and setting, if any, proposed by the public
education agency, regardless of whether the independent educational
assessment is initiated before or after the filing of a due process
hearing proceeding.
(d) If a parent or guardian proposes a publicly financed placement
of the pupil in a nonpublic school, the public education agency
shall have an opportunity to observe the proposed placement and the
pupil in the proposed placement, if the pupil has already been
unilaterally placed in the nonpublic school by the parent or
guardian. An observation conducted pursuant to this subdivision shall
only be of the pupil who is the subject of the observation and shall
not include the observation or assessment of any other pupil in the
proposed placement. The observation or assessment by a public
education agency of a pupil other than the pupil who is the subject
of the observation pursuant to this subdivision may be conducted, if
at all, only with the consent of the parent or guardian pursuant to
this article. The results of an observation or assessment of any
other pupil in violation of this subdivision shall be inadmissible in
a due process or judicial proceeding regarding the free appropriate
public education of that other pupil.

56330. A local educational agency shall follow the procedures in
Section 300.306(c) of Title 34 of the Code of Federal Regulations
when interpreting assessment data for the purpose of determining if a
child is an individual with exceptional needs under Section 56026.

56331. (a) A pupil who is suspected of needing mental health
services may be referred to a community mental health service in
accordance with Section 7576 of the Government Code.
(b) Prior to referring a pupil to a county mental health agency
for services, the local educational agency shall follow the
procedures set forth in Section 56320 and conduct an assessment in
accordance with Sections 300.301 to 300.306, inclusive, of Title 34
of the Code of Federal Regulations. If an individual with exceptional
needs is identified as potentially requiring mental health services,
the local educational agency shall request the participation of the
county mental health agency in the individualized education program.
A local educational agency shall provide any specially designed
instruction required by an individualized education program,
including related services such as counseling services, parent
counseling and training, psychological services, or social work
services in schools as defined in Section 300.34 of Title 34 of the
Code of Federal Regulations. If the individualized education program
of an individual with exceptional needs includes a functional
behavioral assessment and behavior intervention plan, in accordance
with Section 300.530 of Title 34 of the Code of Federal Regulations,
the local educational agency shall provide documentation upon
referral to a county mental health agency. Local educational agencies
shall provide related services, by qualified personnel, unless the
individualized education program team designates a more appropriate
agency for the provision of services. Local educational agencies and
community mental health services shall work collaboratively to ensure
that assessments performed prior to referral are as useful as
possible to the community mental health service agency in determining
the need for mental health services and the level of services
needed.