CHAPTER 63

FORMERLY

SENATE BILL NO. 160

AS AMENDED BY SENATE AMENDMENT NO. 1 AND HOUSE AMENDMENT NO. 1

AN ACT TO AMEND CHAPTER 31, PART I, TITLE 14 OF THE DELAWARE CODE RELATING TO THE EDUCATION OF THE HANDICAPPED AND PROVIDING CERTAIN PROCEDURAL SAFEGUARDS; AND TO AMEND CHAPTER 9, PART I, TITLE 10 OF THE DELAWARE CODE RELATING TO THE JURISDICTION OF THE FAMILY COURT.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Chapter 31, Part I, Title 14 of the Delaware Code by adding thereto a new subchapter, designated as Subchapter V, which new subchapter shall read as follows:

"SUBCHAPTER V. PROCEDURAL SAFEGUARDS

§3130.Opportunity to examine records and educational program

(a) The parents of a handicapped child, either personally or through a representative, shall be afforded an opportunity to inspect and review all relevant records with respect to:

(1) The identification, evaluation, and eduational program and placement of the child; and

(2) The provision of a free appropriate public education to the child.

(b) The parents shall have the right to obtain copies of all records, except the actual evaluation or examination instrument, described in subsection (a) either without charge, or, at the discretion of the district or state agency, at a fee not to exceed actual cost. Under no circumstances shall a fee be assessed which effectively prevents parents from exercising their right to inspect, review, and copy records.

(c) The parents of a handicapped child shall have the right to visit and observe, either personally or through a representative, their child's current or proposed public educational program.

§3131. Minutes of meetings

Subject to confidentiality requirements of applicable State or federal law, minutes may be taken, by disclosed recording device or stenographer, of any meeting, review, or conference concerning a handicapped child's free, appropriate, public education, at the option of the parents of the handicapped child, their authorized representative, or the agency conducting the meeting, review, or conference. Costs of the recording shall be borne by the person or agency exercising his or its option under this section.

§3132. Surrogate parents

The State Board of Education shall establish and maintain procedures to protect the rights of a handicapped child whenever the parents of the child are not known, unavailable, or the child is a ward of the State, including the assignment of an individual, who shall not be an employee of any public agency involved in the education or care of the child, to act as a surrogate parent for the child. The surrogate parent shall exercise and be accorded all rights of a parent to assure the provision of a free, appropriate, public education to the child.

§3133. Notice

Written notice which meets the requirements under S3134 must be given to the parents of a handicapped child a reasonable time before any school district or state agency:

(a) Proposes to initiate or change the identification, evaluation, or educational placement of the child or the provision of a free and appropriate public education to the child; or

(b) Refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of a free, appropriate, public education to the child.

§3134. Content of notice

The notice under §3133 must include:

(a) A full explanation of all of the procedural safeguards available to the parents under this subchapter;

(b) A description of the action proposed or refused by the district or agency, an explanation of why the district or agency proposes or refuses to take the action, and a description of any options the district or agency considered and the reasons why those options were rejected;

(c) A description of each evaluation procedure, test, record, or report the district or agency uses as a basis for the proposal or refusal; and

(d) A description of any other factors which are relevant to the district or agency's proposal or refusal.

§3135. Impartial administrative hearing

(a) A parent, district, or state agency may initiate a hearing concerning any right or entitlement conferred by this chapter.

(b) A hearing is initiated by submission of a written request to the State Superintendent of Public Instruction.

(c) The State Superintendent of Public Instruction, upon receipt of a request for hearing, shall appoint a hearing panel whose membership shall meet the requirements of $3137.

(d) The district or state agency shall Inform the parent of any free or low-cost legal and other relevant services available in the area whenever:

(1) The parent requests the information; or

(2) A hearing is initiated pursuant to this section

§3136. Timeliness of administrative hearings

(a) The State Superintendent of Public Instruction shall ensure that, not later than forty-five days after receipt of a request for a hearing:

(1) A hearing is conducted;

(2) A final decision is reached in the hearing; and

(3) A copy of the decision is mailed to each of the parties.

(b) The hearing panel, for good cause, may grant specific extensions of time beyond the forty-five day limit at the request of either party; provided, however, that a final decision shall be reached and a copy of the decision mailed to each of the parties within fifteen days of the date of the hearing, or, where applicable, within fifteen days of the completion of post-hearing argument.

§3137. Impartial hearing panel

(a) A hearing panelist may not be:

(1) A person who is an employee of a district or agency which is involved in the education or care of the child; or

(2) A person having a personal or professional interest which would conflict with his or her objectivity in the hearing.

(b) The State Superintendent of Public Instruction shall maintain a list of the persons who serve as hearing panelists. The list must include a statement of the qualifications of each of those persons.

(c) All hearing panelists shall have successfully completed such training as may be required by the State Superintendent of Public Instruction to ensure the adequate knowledge and competent performance of panelists.

(d) Each panel shall consist of three panelists, appointed by the State Superintendent of Public Instruction on a rotating basis, as follows:

(1) One attorney admitted to practice in the State;

(2) One educator knowledgeable in the field of special education and special educational programming;

(3) One layperson with demonstrated interest in the education of the handicapped included on an approved list compiled by the Advisory Council for Exceptional Citizens and submitted to the State Superintendent of Public Instruction.

(e) The State Board of Education shall promulgate regulations which, consistent with the provisions of this subchapter, further define hearing procedures and the conduct of hearing panelists which shall include standards of competency, expertise, and training for hearing panelists.

§3138. Hearing rights

(a) Any party to a hearing has the right to:

(1) Be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of handicapped children;

(2) Present evidence and confront and cross-examine adverse witnesses;

(3) Compel the attendance of witnesses as authorized by §3139;

(4) Prohibit the introduction of any evidence at the hearing that has not been disclosed to that party at least five days before the hearing;

(5) Obtain a written or electronic verbatim record of the hearing, with the form of record supplied in the cliscretion of the State Superintendent of Public Instruction, at public expense;

(6) Obtain a written decision which includes findings of fact and law.

(b) Parents involved in hearings must be given the right tot

(I) Have the child who is the subject of the hearing present; and (2) Open the hearing to the public.

(c) The hearing panel shall ensure that parents who have requested a hearing have been advised of the procedural safeguards provided by this subchapter.

(d) Any hearing must be Conducted at a time and place which is reasonably convenient to the parents and child involved.

(e) Any testimony presented at a hearing authorized by this section shall be under oath or affirmation.

(f) Copies of all written decisions shall be provided to the Advisory Council for Exceptional Citizens after deleting any personally identifiable information.

§3139. Issuance of subpoenas

(a) Authority to issue subpoenas is conferred upon the Superintendent of Public Instruction, or his designee, in order to implement §3138(03).

(b) Upon the application of any party at least twelve days prior to hearing, a subpoena shall be issued requiring the attendance of the person or persons listed in the application.

(c) If a person subpoenaed to attend a hearing falls to obey without reasonable cause, or if such a person in attendance refuses, without lawful excuse, to be examined or to answer pertinent questions, an application may be filed with the Family Court for an order directing such person to show cause why he should not appear or testify. Upon return of the rule, the Court shall examine such person under oath, and if the Court shall determine, after giving such person an opportunity to be heard, that he refused without legal excuse to attend or testify at the hearing, despite the subpoena, the Court may order such person to comply therewith. Any failure to obey the order may be punished as a contempt of the Family Court, pursuant to the Rules of the Family Court.

§3140. Burden of proof

The burden of proof and persuasion in any proceeding convened pursuant to 53135 shall be on the district or state agency which is a party to the proceeding.

§3141. Effect of decision

A decision made by a hearing panel under this subchapter is final, unless a party to the hearing brings a civil action under §3142.

§3142. Civil action

(a) Any party aggrieved by the decision of the hearing panel may file a civil action in the Family Court. Such proceeding shall be initiated by the filing of a complaint within thirty days of the date of the decision.

(b) In any action brought under this section, the Court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the Court determines is appropriate.

(c) The State Superintendent of Public Instruction, or his designee, shall certify and file with the Court the record of the administrative hearing, which shall include all documents submitted, a transcript of all testimony, and the decision of the hearing panel.

§3143. Child's status during proceedings

(a) During the pendency of any administrative or judicial proceedings regarding a complaint, unless the district or state agency and parents of the child agree otherwise, the child involved in the complaint shall remain In his or her persent educational placement.

(b) If the complaint involves an application for initial admission to public school, the child, with the consent of the parents, shall be placed in the public school program until the completion of all proceedings."

Section 2. Amend §3101, Subchapter I, Chapter 31, Part I, Title 14 of the Delaware Code by adding a new subsection to be designated (6) and to read as follows:

"(6) 'Parent', for purposes of this chapter, includes a handicapped child's biological or natural parent, or, as appropriate, a stepparent, guardian, surrogate parent, or custodian. With respect to a handicapped person who has reached his eighteenth birthday, and for whom no guardian has been appointed, all rights and entitlements accorded to parents by this chapter shall be deemed accorded directly to the handicapped person."

Section 3. Amend §3110, Subchapter II, Chapter 31, Part I, Title 14 of the Delaware Code by adding a new subsection to be designated (c) and to read as follows:

"(c) The State Board of Education shall establish and maintain procedures, by regulation, to assure that handicapped children and their parents are guaranteed procedural safeguards with respect to the provision of a free, appropriate, public education."

Section 4. Amend §3124, Subchapter III, Chapter 31, Part 1, Title 14 of the Delaware Code by striking subsection (b) in its entirety and substituting in lieu thereof a new subsection (b) to read as follows:

"(b) Disputes concerning the private placement of a child are subject to the hearing procedures set forth in §3135 of this chapter. Subject to the parties' right to appeal, the decision of the hearing panel appointed by the Superintendent of Public Instruction is final and binding on all parties and the State Board of Education."

Section 5. Amend §921(11), Subchapter II, Title 10 of the Delaware Code by striking the period (.) at the end of the subsection and substituting in lieu thereof a (;).

Section 6. Amend §921, Subchapter II, Title 10 of the Delaware Code by adding a new subsection to be designated (12) and to read as follows:

"(12) Actions concerning the education of the handicapped and the enforcement of rights guaranteed by Chapter 31 of Title 19 of the Delaware Code."

Approved June 25, 1983.