The California Department of Education (CDE) thoroughly compared and analyzed California law and regulations and the Individuals with Disabilities Education Act (IDEA), as amended in 2004. This was undertaken pursuant to 20 U.S.C. 1408 (a)(2) of the IDEA, which requires states to identify state statutes, regulations, or policies that are “state-imposed” and “not required” by the IDEA. CDE contracted with Art Cernosia, Esq., a national expert in special education law, to provide the initial analysis during the winter of 2005-06. A small diverse workgroup was also selected to provide input. After considering Mr. Cernosia and the workgroup's feedback, CDE identified those sections of state law and regulation that impose requirements by educational agencies which are not required by IDEA.
It should be noted that states may have laws and regulations containing unique rules and policies to implement IDEA based on the authority given to states by the statute. The Ninth Circuit continues to hold that "[State procedures which more stringently protect the rights of the handicapped and their parents are consistent with the [IDEA] and [are] thus enforceable." (Union School District v. Smith, 15 F3d, 1519 [1994]) Accordingly, in requiring states to generate a list as part of their funding application, the IDEA does not require nor indicate that a state's laws or regulations included in the list be changed or modified.
Pursuant to the notice and comment periods required by the General Education Provisions Act (GEPA), 20 U.S.C. 1232d (b)(7)(B), comments on the listing are welcome input. Written comments can be forwarded to CDE by April 30, 2008 to Janet Canning, Consultant, jcanning@cde.ca.gov or 916-327-4217.
| EC Section or Regulation | State-imposed "Not Required" by IDEA Statute or Federal Regulations [ 20 USC 1408(a)(2) ] |
|---|---|
| Section 33591 | Appointed members from the California Legislature serve on the Advisory Commission on Special Education |
| Section 56026(c )(4) (A) and (C ) | Allows students with disabilities to continue in special education after reaching age 22 when their birthday falls during the current school term. |
| Section 56029 | Written request for assessment to document the time the request was received. |
| Section 56045 (c ) | Requires the governing board to address issue of noncompliance at a public meeting to provide notice to the community. |
| Section 56046 (a) | Prohibition against intimidation, threats, or coercion against public employees for assisting parents in understanding legal entitlements. |
| Section 56050 (c ) | Surrogate parents held harmless when acting in his or her official capacity. |
| Section 56171 | Requires the LEA of residence (not LEA where private school is located) to locate, identify, and assess private school children. |
| Sections 56190-56192 and 56194 | Establishes the provisions for creating SELPA community advisory committees. |
| Sections 56195.3(a) | Governance structure established for Special Education Local Plan Areas (SELPAs) (i.e. local plans). |
| Section 56321(a) | Requires a copy of the parent's rights be attached to the assessment plan |
| Section 56321 (c) | Requires a parental response to the assessment plan within 15 days. |
| Section 56325 (c) | Clarifies SELPA responsibility for providing special education and related services to eligible pupils who are placed on an interim basis in an NPS or residential placement. |
| Section 56341 (g)(1) | Requires that the parent and LEA to confer with an IEP Team member before consenting to the member's excusal from the IEP meeting. |
| Section 56341.1 (g)(1) | Requires that the parent or LEA be allowed to electronically record the IEP Team meeting after providing their intent to record a meeting at least 24 hours prior to the meeting. |
| Section 56341.5 (d) | Allows the individual with a disability to provide confidential input to any representative of the IEP Team. |
| Section 56346 (d) | Requires the LEA to request a due process hearing if the parent refuses all services after having consent to those services in the past. |
| Section 56346 (f) | Requires the LEA to request a due process hearing if the parent does not consent to services necessary for FAPE. |
| Sections 56362 (c) | Establishes enrollment caseloads for resource specialists. |
| Section 56362 (d)-(f) | Prohibits resource specialists from simultaneously being assigned to serve as resource specialists and to teach regular classes. Prohibits resource specialists from enrolling a pupil for a majority of a school day without prior approval by the superintendent. Stipulates that at least 80% of resource specialists in a local plan shall have an instructional aide. |
| Section 56363.3 | Establishes enrollment caseloads for language, speech, and hearing specialists. |
| Section 56441.11 (d) | Defines "established medical disability" for preschool children between the ages of 3 and 5 years. |
| Section 56461 | Requires the Superintendent to establish a plan to provide transition services |
| Section 56500.1 (b) | Requires that parents be informed of their procedural safeguards at each IEP Team meeting. |
| Section 56500.3 (a) | Prohibits the participation of attorneys/legal advocates from attending a voluntary prehearing, voluntary mediation conference. |
| Section 56500.3 (e) | Requires that a voluntary prehearing mediation conference be held within 15 days and completed within 30 days of receipt of request for mediation. |
| Section 56505 (e)(6) | Requires that the party notify the other party of the due process issues as least 10 days prior to the hearing to focus on unresolved issues. |
| Section 56505 (e)(6) | Requires that the LEA provide an unrepresented parent, upon request, with a mediator to assist them in identifying issues and proposed resolution prior to the hearing date. |
| Section 56505 (i) | Requires the hearing officer to consider the costs, in addition to other factors, in decisions related to placement. |
| Section 56507 (a) | Requires a 10 day notice to the other party to notify the other party will have an attorney representing them. |
| Section 56507 (b)(1) | Specifically allows the parties to agree to attorneys fees to a prevailing parent of a due process hearing without pursuing a court action. |
| Section 56507 (d) | Requires the hearing decision indicate the prevailing party on each issue resolved in the hearing. |
| Section 56602 | Requires a biennial performance report on special education to CA State Legislature, State Board of Education, and Governor. |
| Section 56605 | Requires periodic workshops on special education programs for LEA personnel who evaluate such programs. |
| Section 7579.5 (l) | Surrogate parents and LEAs appointing them are held harmless when acting within the scope of their duties unless such acts or omissions are found to be wanton, reckless, or malicious. |
| California Code of Regulations, Title 5Section 3043(d) | Provides for an extended school year for a minimum of 20 instructional days. |
