Florida Senate - 2009 SB 2038
By Senator Detert
23-01056A-09 20092038__
1 A bill to be entitled
2 An act relating to exceptional students; amending s.
3 1003.57, F.S.; revising provisions relating to due
4 process hearings for exceptional students; requiring
5 that such hearings be conducted by an administrative
6 law judge from the Division of Administrative Hearings
7 pursuant to a contract with the Department of
8 Education; providing that any party to a hearing
9 related to gifted students may request that the
10 findings or decision be reviewed by the district court
11 of appeal; authorizing a district school board to
12 consider a change in placement for a student who has a
13 disability if the student engages in behavior that
14 violates the district school board's code of student
15 conduct; providing for the removal and placement of
16 such student in an alternative educational setting for
17 a limited period; specifying the grounds for removal;
18 providing definitions for the terms “weapon” and
19 “controlled substance”; creating s. 1003.571, F.S.;
20 requiring that the State Board of Education comply
21 with the Individuals with Disabilities Education Act
22 after evaluating and determining that such act is
23 consistent with certain principles; requiring that the
24 State Board of Education adopt rules; amending s.
25 1003.58, F.S.; conforming a cross-reference; providing
26 an effective date.
27
28 Be It Enacted by the Legislature of the State of Florida:
29
30 Section 1. Subsection (1) of section 1003.57, Florida
31 Statutes, is amended to read:
32 1003.57 Exceptional students instruction.—
33 (1)(a) Each district school board shall provide for an
34 appropriate program of special instruction, facilities, and
35 services for exceptional students as prescribed by the State
36 Board of Education as acceptable, including provisions that:
37 1.(a) The district school board provide the necessary
38 professional services for diagnosis and evaluation of
39 exceptional students.
40 2.(b) The district school board provide the special
41 instruction, classes, and services, either within the district
42 school system, in cooperation with other district school
43 systems, or through contractual arrangements with approved
44 private schools or community facilities that meet standards
45 established by the commissioner.
46 3.(c) The district school board annually provide
47 information describing the Florida School for the Deaf and the
48 Blind and all other programs and methods of instruction
49 available to the parent of a sensory-impaired student.
50 4.(d) The district school board, once every 3 years, submit
51 to the department its proposed procedures for the provision of
52 special instruction and services for exceptional students.
53 (b)(e) A student may not be given special instruction or
54 services as an exceptional student until after he or she has
55 been properly evaluated, classified, and placed in the manner
56 prescribed by rules of the State Board of Education. The parent
57 of an exceptional student evaluated and placed or denied
58 placement in a program of special education shall be notified of
59 each such evaluation and placement or denial. Such notice shall
60 contain a statement informing the parent that he or she is
61 entitled to a due process hearing on the identification,
62 evaluation, and placement, or lack thereof. Such hearings are
63 shall be exempt from the provisions of ss. 120.569, 120.57, and
64 286.011, except to the extent that the State Board of Education
65 adopts rules establishing other procedures. and Any records
66 created as a result of such hearings are shall be confidential
67 and exempt from the provisions of s. 119.07(1) and s. 24(a),
68 Art. I of the State Constitution. The hearing must be conducted
69 by an administrative law judge from the Division of
70 Administrative Hearings pursuant to a contract between the
71 Department of Education and the Division of Administrative
72 Hearings of the Department of Management Services. The decision
73 of the administrative law judge is shall be final, except that
74 any party aggrieved by the finding and decision rendered by the
75 administrative law judge has shall have the right to bring a
76 civil action in the state circuit court. In such an action, the
77 court shall receive the records of the administrative hearing
78 and shall hear additional evidence at the request of either
79 party. In the alternative, in hearings conducted on behalf of a
80 student who is identified as gifted, any party aggrieved by the
81 finding and decision rendered by the administrative law judge
82 has shall have the right to request a an impartial review of the
83 administrative law judge's order by the district court of appeal
84 as provided in by s. 120.68.
85 (c) Notwithstanding any law to the contrary, during the
86 pendency of any proceeding conducted pursuant to this section,
87 unless the district school board and the parents otherwise
88 agree, the student shall remain in his or her then-current
89 educational assignment or, if applying for initial admission to
90 a public school, shall be assigned, with the consent of the
91 parents, in the public school program until all such proceedings
92 have been completed.
93 (d)(f) In providing for the education of exceptional
94 students, the district school superintendent, principals, and
95 teachers shall utilize the regular school facilities and adapt
96 them to the needs of exceptional students to the maximum extent
97 appropriate. Segregation of exceptional students shall occur
98 only if the nature or severity of the exceptionality is such
99 that education in regular classes with the use of supplementary
100 aids and services cannot be achieved satisfactorily.
101 (e)(g) In addition to the services agreed to in a student's
102 individual educational education plan, the district school
103 superintendent shall fully inform the parent of a student having
104 a physical or developmental disability of all available services
105 that are appropriate for the student's disability. The
106 superintendent shall provide the student's parent with a summary
107 of the student's rights.
108 (f) School personnel may consider any unique circumstances
109 on a case-by-case basis when determining whether a change in
110 placement is appropriate for a student who has a disability and
111 violates a district school board's code of student conduct.
112 School personnel may remove and place such student in an interim
113 alternative educational setting for not more than 45 school
114 days, without regard to whether the behavior is determined to be
115 a manifestation of the student's disability, if the student:
116 1. Carries a weapon to or possesses a weapon at school, on
117 school premises, or at a school function under the jurisdiction
118 of the school district;
119 2. Knowingly possesses or uses illegal drugs, or sells or
120 solicits the sale of a controlled substance, while at school, on
121 school premises, or at a school function under the jurisdiction
122 of the school district; or
123 3. Has inflicted serious bodily injury upon another person
124 while at school, on school premises, or at a school function
125 under the jurisdiction of the school district.
126 (g) For purposes of paragraph (f), the term:
127 1. “Weapon” means a device, instrument, material, or
128 substance, animate or inanimate, which is used for, or is
129 readily capable of, causing death or serious bodily injury;
130 however, this definition does not include a pocketknife having a
131 blade that is less than 2 1/2 inches in length.
132 2. “Controlled substance” means a drug or other substance
133 identified under Schedule I, Schedule II, Schedule III, Schedule
134 IV, or Schedule V of the Controlled Substances Act, 21 U.S.C. s.
135 812(c) and s. 893.02(4).
136 Section 2. Section 1003.571, Florida Statutes, is created
137 to read:
138 1003.571 Instruction for exceptional students who have a
139 disability.—
140 (1) The State Board of Education shall comply with the
141 Individuals with Disabilities Education Act (IDEA), as amended,
142 and its implementing regulations after evaluating and
143 determining that the IDEA, as amended, and its implementing
144 regulations are consistent with the following principles:
145 (a) Ensuring that all children who have disabilities are
146 afforded a free and appropriate public education that emphasizes
147 special education and related services designed to meet their
148 unique needs and prepare them for further education, employment,
149 and independent living;
150 (b) Ensuring that the rights of children who have
151 disabilities and their parents are protected; and
152 (c) Assessing and ensuring the effectiveness of efforts to
153 educate children who have disabilities.
154 (2) The State Board of Education shall adopt rules pursuant
155 to ss. 120.536(1) and 120.54 to implement this section.
156 Section 3. Subsection (3) of section 1003.58, Florida
157 Statutes, is amended to read:
158 1003.58 Students in residential care facilities.—Each
159 district school board shall provide educational programs
160 according to rules of the State Board of Education to students
161 who reside in residential care facilities operated by the
162 Department of Children and Family Services or the Agency for
163 Persons with Disabilities.
164 (3) The district school board shall have full and complete
165 authority in the matter of the assignment and placement of such
166 students in educational programs. The parent of an exceptional
167 student shall have the same due process rights as are provided
168 under s. 1003.57(1)(b) s. 1003.57(1)(e).
169
170 Notwithstanding the provisions herein, the educational program
171 at the Marianna Sunland Center in Jackson County shall be
172 operated by the Department of Education, either directly or
173 through grants or contractual agreements with other public or
174 duly accredited educational agencies approved by the Department
175 of Education.
176 Section 4. This act shall take effect July 1, 2009.