GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1989

S	4 

SENATE BILL 1615
Second Edition Engrossed 7/6/90
House Committee Substitute Favorable 7/19/90
Fourth Edition Engrossed 7/26/90

Short Title:  Panel/Due Process Hearings.	(Public)
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Sponsors:
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Referred to:
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July 5, 1990

A BILL TO BE ENTITLED
AN ACT TO AMEND THE EXCEPTIONAL CHILDREN'S APPEALS PROCESS, TO PRESERVE FEDERAL FUNDS, AND TO SAVE THE STATE REPLACEMENT FUNDS.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 115C-116 reads as rewritten:
"§ 115C-116.  Notice of decisions; mediation, administrative review, and judicial review of disagreements.
	(a) Prior Notice. – The parent, guardian, or surrogate parent of a child shall be notified promptly when the local educational agency proposes to initiate or change, or refuses to initiate or change, the identification, evaluation, or educational placement of a child as a child with special needs.  The written notice shall contain a full explanation of all the procedural safeguards available to the parent, guardian, or surrogate parent including the right to review the proposed decision, and a statement offering the parent, guardian, or surrogate parent the opportunity for mediation.  The local educational agency shall document that all required notices have been sent to and received by parents, guardians, or surrogate parents.
(b)	Mediation. – Mediation of disputes or disagreements regarding the identification of children with special needs and the provision of special education for children with special needs prior to formal administrative review is encouraged.  If a request for formal administrative review has not been filed, the superintendent, upon the request of a parent, guardian, or surrogate parent, shall meet, or designate an assistant or associate superintendent to meet, with the parent, guardian, or surrogate parent to attempt to resolve the dispute or disagreement.  The meeting shall be informal and the General Assembly intends that the meeting shall be nonadversarial, as required by G.S. 150B-22.
(c)	Right of Review. – The parent, guardian, or surrogate parent may obtain review of proposed decisions on the following grounds:
(1)	The child has not been identified or has been incorrectly identified as a child with special needs;
(2)	The child's individualized education plan is not appropriate to meet his needs;
(3)	The child's individualized education plan is not being implemented; or
(4)	The child is otherwise being denied a free, appropriate education.
In addition, a local educational agency may obtain review as provided by this section if a parent, guardian, or surrogate parent refuses to consent to the evaluation of the child for the purpose of determining whether the child is a child with special needs or for the purpose of developing a free appropriate educational program for the child.
(d)	Administrative Review. – Except as otherwise provided in this section, the administrative review shall be initiated and conducted in accordance with Article 3 of Chapter 150B of the General Statutes, the Administrative Procedure Act.
(e)	Scope of Review. –The issues for review shall be limited to those set forth in subsection (c).
(f)	Venue of Hearing. –The hearing shall be conducted in the county where the child attends school or is entitled to enroll pursuant to G.S. 115C-366.
(g)	Hearing Closed. –The hearing shall be closed to the public unless the parent, guardian, or surrogate parent, requests in writing that the hearing be open to the public.
(h)	Decision of the Administration Law Judge. – Following the hearing, the administrative law judge shall make a decision regarding the issues set forth in subsection (c).  The decision shall contain findings of fact and conclusions of law. Notwithstanding the provisions of Chapter 150B of the General Statutes, the decision of the administrative law judge becomes final and not subject to further review unless appealed to the Review Officer as provided in subsection (i).  A copy of the administrative law judge's decision shall be served upon each party and a copy shall be furnished to the attorneys of record.  The written notice shall contain a statement informing the parties of the availability of appeal and the 30-day limitations period for appeal as set forth in subsection (i).
(i)	Review by Review Officer. – Any party aggrieved by the decision of the administrative law judge may appeal that decision within 30 days after receipt of notice of the decision by filing a written notice of appeal with the Superintendent of Public Instruction.  The State Superintendent of Public Instruction shall appoint a Review Officer from a pool of review officers approved by the State Board of Education.  A Review Officer must be an educator or other professional who is knowledgeable about special education and who possesses such other qualifications as may be established by the State Board of Education.
No person may be appointed as a Review Officer if that person is an employee of an agency that has been involved in the education or care of the child whose parents have filed the petition (including an employee or official of the State Department of Education or the State Board of Education) or if the person is or has been employed by the local Board of Education responsible for the education or care of the child whose parents have filed the petition.  The decision of the Review Officer shall contain findings of fact and conclusions of law and becomes final unless an aggrieved party brings a civil action pursuant to subsection (k).  A copy of the decision shall be served upon each party and a copy shall be furnished to the attorneys of record.  The written notice shall contain a statement informing the parties of the right to file a civil action and the 30-day limitations period for filing a civil action pursuant to subsection (k).
(j)	Power to Enforce Final Decision. – The State Board shall have the power to enforce the final decision of the administrative law judge, if not appealed pursuant to subsection (i), or the final decision of the Review Officer, by ordering a local educational agency:
(1)	To provide a child with appropriate education;
(2)	To place a child in a private school that is approved to provide special education and that can provide the child an appropriate education; or
(3)	To reimburse parents for reasonable private school placement costs in accordance with the provisions of G.S. 115C-115 when it is determined that the local educational agency did not offer or provide the child with appropriate education and the private school in which the parent, guardian, or surrogate parent placed the child was an approved school and did provide the child an appropriate education.
(k)	Right to File Civil Action. – Any party aggrieved by the decision of the Review Officer may institute a civil action in State or federal court as provided in 20 U.S.C. § 1415 within 30 days after receipt of notice of the decision.
(l)	Change in Placement. – Upon the filing of a petition, no change may be made in the child's status or program by school officials during the period of the administrative review or subsequent judicial review, unless the parent, guardian, or surrogate parent gives written consent."
Sec. 2.  This act shall become effective October 1, 1990, and shall apply to all petitions filed on or after that date.