71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1433-1
Senate Bill 700
Sponsored by Senator STARR (at the request of Therese Steward)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Directs Department of Education to use hearing officers from
Hearing Officer Panel for special education contested cases. Sets
qualifications for hearing officer. Requires prehearing
fact-finding process. Directs department to produce hearing
manual.
A BILL FOR AN ACT
Relating to special education; creating new provisions; and
amending ORS 343.165 and section 9, chapter 849, Oregon Laws
1999.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 343.165 is amended to read:
343.165. (1) A hearing shall be conducted pursuant to rules of
the State Board of Education if:
(a) The parent requests a hearing to contest the determination
of the school district concerning the identification, evaluation,
individualized education program, educational placement or the
provision of a free appropriate public education to the child; or
(b) The school district requests a hearing to obtain a decision
regarding whether its identification, evaluation, individualized
education program or educational placement of the child is
appropriate or whether the district's proposed action is
necessary to provide the child with a free appropriate public
education.
(2) The State Board of Education shall adopt rules that
establish when a school district is obligated to initiate a
contested case hearing to ensure that a student with disabilities
is provided with a free appropriate public education.
(3) The board's rules in subsection (1) of this section shall
be as consistent as possible with the procedures applicable to a
contested case under ORS 183.310 to 183.550. However, the board's
rules shall provide that:
(a) Any party to a hearing has the right to prohibit the
introduction of any evidence that has not been disclosed to that
party at least five business days before the hearing; and
(b) The hearing officer may prohibit the introduction of any
evidence regarding evaluations and recommendations based on those
evaluations that a party intends to use at the hearing, if the
evidence has not been disclosed to the other party at least five
business days before the hearing, unless the other party consents
to the introduction of the evidence.
(4) Notwithstanding subsection (3) of this section, in an
expedited hearing the evidence must be disclosed to the other
party not later than two business days before the hearing.
(5) The parent shall be entitled to have the child who is the
subject of the hearing present at the hearing and to have the
hearing open to the public.
(6) When either party requests, an expedited hearing shall be
held in a dispute over a disciplinary action for a child with a
disability if:
(a) The child's parent disagrees with a determination that the
child's behavior was not a manifestation of the child's
disability or with any decision regarding the child's educational
placement; or
(b) The school district maintains that it is dangerous for the
child to be in the child's current educational placement during
the pendency of the hearing.
(7) The hearing shall be conducted by { - an independent
hearing officer appointed by the Superintendent of Public
Instruction - } { + a hearing officer assigned from the Hearing
Officer Panel established under section 3, chapter 849, Oregon
Laws 1999 + }. The hearing officer shall not be:
(a) An employee of a school district { - involved in the
education or care of the child - } ;
(b) An employee of the Department of Education; { - or - }
{ + (c) An individual who has been employed by a school
district or the Department of Education within the five years
immediately preceding the hearing;
(d) An attorney who represents, or has represented within the
five years immediately preceding the hearing, a school district,
the Department of Education, a child with a disability or a
parent of a child with a disability in any action under this
chapter; or + }
{ - (c) - } { + (e) + } A person having any personal or
professional interest which would conflict with the person's
objectivity in the hearing.
{ + (8) The board's rules in subsection (1) of this section
shall establish a voluntary prehearing process for the parties to
determine the facts leading to the request for a hearing. The
process may be used only with the consent of the parent.
(9) The Department of Education shall produce and disseminate a
hearing manual designed to educate parents about the hearing
process and the potential benefits of mediation. The manual shall
include all information used to train hearing officers and
information concerning interpretations of special education law
that hearing officers must follow. The manual shall be made
available to all parents of children with disabilities and to all
school district employees and contractors providing services to
children with disabilities. + }
SECTION 2. ORS 343.165, as amended by section 1 of this 2001
Act, is amended to read:
343.165. (1) A hearing shall be conducted pursuant to rules of
the State Board of Education if:
(a) The parent requests a hearing to contest the determination
of the school district concerning the identification, evaluation,
individualized education program, educational placement or the
provision of a free appropriate public education to the child; or
(b) The school district requests a hearing to obtain a decision
regarding whether its identification, evaluation, individualized
education program or educational placement of the child is
appropriate or whether the district's proposed action is
necessary to provide the child with a free appropriate public
education.
(2) The State Board of Education shall adopt rules that
establish when a school district is obligated to initiate a
contested case hearing to ensure that a student with disabilities
is provided with a free appropriate public education.
(3) The board's rules in subsection (1) of this section shall
be as consistent as possible with the procedures applicable to a
contested case under ORS 183.310 to 183.550. However, the board's
rules shall provide that:
(a) Any party to a hearing has the right to prohibit the
introduction of any evidence that has not been disclosed to that
party at least five business days before the hearing; and
(b) The hearing officer may prohibit the introduction of any
evidence regarding evaluations and recommendations based on those
evaluations that a party intends to use at the hearing, if the
evidence has not been disclosed to the other party at least five
business days before the hearing, unless the other party consents
to the introduction of the evidence.
(4) Notwithstanding subsection (3) of this section, in an
expedited hearing the evidence must be disclosed to the other
party not later than two business days before the hearing.
(5) The parent shall be entitled to have the child who is the
subject of the hearing present at the hearing and to have the
hearing open to the public.
(6) When either party requests, an expedited hearing shall be
held in a dispute over a disciplinary action for a child with a
disability if:
(a) The child's parent disagrees with a determination that the
child's behavior was not a manifestation of the child's
disability or with any decision regarding the child's educational
placement; or
(b) The school district maintains that it is dangerous for the
child to be in the child's current educational placement during
the pendency of the hearing.
(7) The hearing shall be conducted by { - a hearing officer
assigned from the Hearing Officer Panel established under section
3, chapter 849, Oregon Laws 1999 - } { + an independent hearing
officer appointed by the Superintendent of Public
Instruction + }. The hearing officer shall not be:
(a) An employee of a school district;
(b) An employee of the Department of Education;
(c) An individual who has been employed by a school district or
the Department of Education within the five years immediately
preceding the hearing;
(d) An attorney who represents, or has represented within the
five years immediately preceding the hearing, a school district,
the Department of Education, a child with a disability or a
parent of a child with a disability in any action under this
chapter; or
(e) A person having any personal or professional interest which
would conflict with the person's objectivity in the hearing.
(8) The board's rules in subsection (1) of this section shall
establish a voluntary prehearing process for the parties to
determine the facts leading to the request for a hearing. The
process may be used only with the consent of the parent.
(9) The Department of Education shall produce and disseminate a
hearing manual designed to educate parents about the hearing
process and the potential benefits of mediation. The manual shall
include all information used to train hearing officers and
information concerning interpretations of special education law
that hearing officers must follow. The manual shall be made
available to all parents of children with disabilities and to all
school district employees and contractors providing services to
children with disabilities.
SECTION 3. { + The amendments to ORS 343.165 by section 2 of
this 2001 Act become operative January 1, 2004. + }
SECTION 4. Section 9, chapter 849, Oregon Laws 1999, is amended
to read:
{ + Sec. 9. + } (1) Except as provided in this section, all
agencies must use hearing officers assigned from the Hearing
Officer Panel established under section 3 { - of this 1999
Act - } { + , chapter 849, Oregon Laws 1999, + } to conduct
contested case hearings, without regard to whether those hearings
are subject to the procedural requirements for contested case
hearings.
(2) The following agencies need not use hearing officers
assigned from the panel:
(a) { + Except as provided in subsection (7) of this
section, + } the Department of Education, the State Board of
Education and the Superintendent of Public Instruction.
(b) Employment Appeals Board.
(c) Employment Relations Board.
(d) Public Utility Commission.
(e) Bureau of Labor and Industries and the Commissioner of the
Bureau of Labor and Industries.
(f) Land Conservation and Development Commission.
(g) Land Use Board of Appeals.
(h) Department of Revenue.
(i) Local government boundary commissions created pursuant to
ORS 199.425 or 199.430.
(j) State Accident Insurance Fund Corporation.
(k) Psychiatric Security Review Board.
(L) State Board of Parole and Post-Prison Supervision.
(m) Department of Corrections.
(n) Energy Facility Siting Council.
(o) Vocational Rehabilitation Division.
(p) Secretary of State.
(q) State Treasurer.
(r) Attorney General.
(s) Fair Dismissal Appeals Board.
(t) Department of State Police.
(u) Oregon Youth Authority.
(v) Boards of stewards appointed by the Oregon Racing
Commission.
(w) The Department of Higher Education and the institutions of
higher education listed in ORS 352.002.
(x) The Governor.
(y) State Land Board.
(3) The Workers' Compensation Board is exempt from using
hearing officers assigned from the panel for any hearing
conducted by the board under ORS chapters 147, 654 and 656. The
Director of the Department of Consumer and Business Services must
use hearing officers assigned from the panel for all contested
case hearings regarding matters other than those concerning a
claim under ORS chapter 656, as provided in ORS 656.704 (2).
Except as specifically provided in this subsection, the
Department of Consumer and Business Services must use hearing
officers assigned from the panel only for contested cases arising
out of the department's powers and duties under:
(a) ORS chapter 59;
(b) ORS 200.005 to 200.075;
(c) ORS chapter 455;
(d) ORS chapter 674;
(e) ORS chapters 706 to 716;
(f) ORS chapter 717;
(g) ORS chapters 722, 723, 725 and 726; and
(h) ORS chapters 731, 732, 733, 734, 735, 737, 742, 743, 744,
746, 748 and 750.
(4) Notwithstanding any other provision of law, in any
proceeding in which an agency is required to use a hearing
officer assigned from the panel, an officer or employee of the
agency may not conduct the hearing on behalf of the agency.
(5) Notwithstanding any other provision of sections 2 to 21
{ - of this 1999 Act - } { + , chapter 849, Oregon Laws
1999 + }, no agency shall be required to use a hearing officer
assigned from the panel if:
(a) Federal law requires that a different hearing officer be
used; or
(b) Use of a hearing officer from the panel could result in a
loss of federal funds.
(6) Notwithstanding any other provision of this section, the
Department of Environmental Quality must use hearing officers
assigned from the panel only for contested case hearings
conducted under the provisions of ORS 183.413 to 183.470.
{ + (7) The Department of Education, the State Board of
Education and the Superintendent of Public Instruction shall use
hearing officers assigned from the panel for hearings conducted
under ORS chapter 343. + }
SECTION 5. { + (1) The amendments to ORS 343.165 and section
9, chapter 849, Oregon Laws 1999, by sections 1 and 4 of this
2001 Act apply to hearings requested on or after the effective
date of this 2001 Act.
(2) The amendments to ORS 343.165 by section 2 of this 2001 Act
apply to hearings requested on or after January 1, 2004, and to
hearings commenced prior to January 1, 2004, and still pending on
January 1, 2004. + }
----------