2022 -- H 7536

========

LC003291

========

     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2022

____________

A N   A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT -- OFFICE OF THE SPECIAL

EDUCATION OMBUD

     Introduced By: Representatives Carson, Cortvriend, Fogarty, Alzate, Donovan, Fenton-
Fung, Shallcross Smith, Amore, Serpa, and Craven

     Date Introduced: February 18, 2022

     Referred To: House Education

     It is enacted by the General Assembly as follows:

     SECTION 1. Legislative findings. The general assembly hereby finds and declares that:

     (1) Every student who receives special education is covered by the Individuals with

Disabilities Education Act (IDEA). There are seven (7) basic principles which are consistent with

the IDEA. These principles are as follows:

     (i) To identify the child with special needs;

     (ii) To provide free and appropriate public education;

     (iii) To conduct an evaluation where school districts gather the information necessary to

help determine the student's educational needs and guide decision making about appropriate

educational programming;

     (iv) To produce an individualized education program (IEP) to ensure that each student's

individual needs are met; school districts shall create a written statement of the educational program

designed to the needs of the student;

     (v) To provide the least restrictive environment for the student so that each student receives

an appropriate education designed to meet their special needs.

     (vi) To offer opportunities for meaningful participation of parents, guardians, and

custodians of students with disabilities, and the students, when appropriate, to become involved

throughout the special education process; and

     (vii) To implement procedural safeguards to ensure that each student's rights and the rights

of the parents, guardians, and custodians of the students with disabilities are protected and establish

clear steps to address issues which may arise. Parents, guardians and custodians of students with

disabilities between the ages of three (3) through eighteen (18) or custodians or guardians of

students with disabilities who are over the age of eighteen (18) through twenty-two (22) and

enrolled in school shall have the ability to participate in meetings, examine all education records

and obtain an individual educational evaluation of the student.

     SECTION 2. Title 42 of the General Laws entitled "STATE AFFAIRS AND

GOVERNMENT" is hereby amended by adding thereto the following chapter:

CHAPTER 162

OFFICE OF THE SPECIAL EDUCATION OMBUD

     42-162-1. Establishment.

     There is hereby created the office of the Special Education Ombud.

     42-162-2. Purpose.

     The office of the special education ombud shall be independent of the Rhode Island

department of education and shall serve as a point of contact for teachers, local education agencies

(LEAs), advocates, parents, guardians, and custodians of students with disabilities between the ages

of three (3) through eighteen (18) or for those guardians and custodians of students with disabilities

who are over the age of eighteen (18) through the age of twenty-two (22) and enrolled in school.

The office shall coordinate and advocate to ensure compliance by the school district with the

applicable individualized education program (IEP) and related services for students with disabilities

pursuant to chapter 24 of title 16 and federal law including the Individuals with Disabilities

Education Act (IDEA).

     42-162-3. Definitions.

     When used in this chapter, the following terms shall have the following meanings:

     (1) "504 Plan" means the federal § 504 of the Rehabilitation Act of 1973 (Pub. L. No. 98-

112, 87 Stat. 394 (Sept. 26, 1973) codified at 29 U.S.C. § 701 et seq.).

     (2) "Department" means the Rhode Island department of education (RIDE);

     (3) "Guardian" or "guardians" means parents, guardians, and custodians of students with

disabilities between the ages of three (3) through eighteen (18) or those guardians and custodians

of students with disabilities who are over the age of eighteen (18) through the age of twenty-two

(22). It includes an individual who has custody and control of a student or one who has legal

authority to make educational decisions on behalf of the student;

     (4) "Office" means the office of the special education ombud;

     (5) "State special education ombud", "state ombud" or "ombud" means the state special

LC003291 - Page 2 of 8

education ombud; and

     (6) "Student" means a public school student age three (3) through the age of twenty-two

(22) receiving or seeking special education services, such as early intervention, IEP, 504 Plan and

transitional plan for student leaving high school.

     42-162-4. Appointment of the special education ombud.

     (a) The governor, with the advice and consent of the senate, shall appoint a person qualified

by education, training and experience to perform the responsibilities of the state special education

ombud, as set forth in § 42-162-5. The ombud shall hold office for a term of five (5) years and shall

continue to hold office until his or her successor is appointed and qualified.

     (b) The appointment shall be made from a list of at least three (3) individuals submitted by

a committee consisting of seven (7) members as follows:

     (1) One of whom shall be an attorney who practices in the area of special education

advocacy law appointed by the Rhode Island Bar Association;

     (2) One of whom shall be an administrator of a municipal school district, appointed by the

Rhode Island School Superintendents Organization;

     (3) One of whom shall be a special education teacher appointed by the American Federation

of Teachers (AFT);

     (4) One of whom shall be a special education teacher appointed by the National Education

Association;

     (5) One of whom shall be a parent, guardian or caretaker of a student with special needs

appointed by Rhode Island Advocacy for Children;

     (6) One of whom shall be the executive director of the Rhode Island developmental

disabilities council, or designee; and

     (7) One of whom shall be the child advocate, or designee.

     (c) Members of the committee shall have knowledge of federal and state special education

law, knowledge of civil rights, or experience with the implementation of an individualized

education program (IEP) and § 504 of the Rehabilitation Act of 1973 (504 plans).

     42-162-5. Powers and duties of the state special education ombud.

     (a) The state special education ombud shall:

     (1) Identify, investigate and resolve concerns pertaining to special education services that

are filed with the office by guardians;

     (2) Assist students and guardians in protecting the educational rights of students, which

may include assisting students and custodians in individualized education plan meetings or other

proceedings pursuant to chapter 24 of title 16 and the federal Individuals with Disabilities

LC003291 - Page 3 of 8

Education Act (IDEA);

     (3) Inform students and guardians about special education resources in their community;

     (4) Ensure that students and guardians have regular and timely access to the services

provided through the office and that students and guardians receive timely responses from

representatives of the office;

     (5) Identify any patterns of concerns that emerge regarding special education services and

educational rights and recommend strategies for improvement to the department;

     (6) Collaborate with the department and the school district's director of special education

to ensure that all dispute resolution processes are available to students and guardians;

     (7) Collect data and collaborate with all advocacy agencies within the state to identify and

report systemic special education issues to the department;

     (8) Ensure that office staff and contractors are trained in:

     (i) Federal, state and local laws, rules and policies with respect to special education in the

state;

     (ii) Investigative techniques to determine if students are receiving special education

opportunities;

     (iii) Dispute resolution; and

     (iv) Such other matters as the office deems appropriate;

     (9) Analyze, comment on and monitor the development and implementation of federal and

state laws, rules and other governmental policies and actions that pertain to the educational rights

of students with respect to the adequacy of special education services in the state;

     (10) Recommend changes to laws, rules, policies and actions pertaining to the special

educational rights of students as the office determines to be appropriate;

     (11) Facilitate public comment on proposed laws, rules, policies and actions; and

     (12) Provide information and data to public and private agencies, legislators and other

persons regarding the problems and concerns of special education services and make

recommendations related to those problems and concerns.

     42-162-6. Annual report.

     No later than December 1 of each year, the office shall prepare and submit a report to the

governor and to the general assembly that includes:

     (1) Actions taken by the office in the year for which the report is prepared;

     (2) Special education concerns identified by or on behalf of students and guardians,

resolution of the concerns and the effectiveness of the resolution processes;

     (3) Recommendations for improving the quality of special education services provided to

LC003291 - Page 4 of 8

students and protecting the educational rights of students; and

     (4) Policy, inclusive of regulatory and legislative recommendations to solve identified

concerns related to special education, to improve processes of resolutions of concerns, to improve

the quality of services provided to students, to protect the educational rights of students and to

remove barriers to education and educational services.

     42-162-7. Investigation and resolution of special education concerns.

     The office shall identify, investigate and seek to resolve concerns related to special

education communicated by or on behalf of students and guardians. If the office does not address

a concern, the office shall notify the concerned person of the decision not to address the concern

and the reasons for the decision.

     42-162-8. Access to student educational records.

     Upon request and with consent from the student or the student's guardian, the office shall

have access to the student's educational records from the department, school district or any public

school in possession of the student's records that are necessary to carry out the office's

responsibilities.

     42-162-9. Confidentiality.

     (a) All files, records and evaluation forms maintained by the office that pertain to students

are confidential and shall not be deemed "public records" subject to disclosure under chapter 2 of

title 38 and shall be compliant with the federal Health Insurance Portability and Accountability Act

(HIPAA) except that the state ombud may disclose the identity of a concerned person or student if:

     (1) The student over the age of eighteen (18), or guardian consents in writing to the

disclosure; or

     (2) The student over the age of eighteen (18), or guardian gives oral consent that is

documented immediately in writing by a representative of the office; or

     (3) If the student over the age of eighteen (18), is unable to give oral consent, the student

may give consent in any way that the student is able to, and the consent shall also be documented

immediately in writing by a representative of the office; or

     (4) Disclosure is ordered by the court.

     (b) The annual report required pursuant to § 42-162-6 may use confidential information

and may be published or furnished to the public; provided that, the report does not identify

individual students directly or indirectly nor violate the privileged or confidential nature of the

relationship and communications between the student and the office.

     42-162-10. Conflict of Interest.

     (a) An ombud shall not:

LC003291 - Page 5 of 8

     (1) Have an ownership or investment or other financial relationship in a school providing

special education services;

     (2) Be employed by, or participating in the management of, a school providing special

education services; and

     (3) Receive, or have the right to receive, directly or indirectly, remuneration with a school

providing special education services.

     (b) The governor shall ensure that:

     (1) The person or an immediate family member of that person appointed ombud does not

have a conflict of interest;

     (2) The ombud shall ensure that an employee or a contractor of the office or an immediate

family member of the employee or contractor does not have a conflict of interest.

     42-162-11. Posting and distribution of ombud information - Evaluation of process.

     (a) Every public school providing special education services shall post, in a conspicuous

location in the school, a notice regarding the office that contains a brief description of the services

provided by the office and the name, address, and phone number of the office and shall post the

information on the school's website, if applicable. The public school providing special education

services shall distribute information regarding the state ombud at the beginning of every school

year, in addition to providing the information as part of the annual individual education plan (IEP)

process prior to scheduling the first individual education plan meeting of each school year. The

form of the notice shall be approved by the office.

     (b) The department, in conjunction with the ombud, shall develop a meeting evaluation

form that will be available on its website and distributed to guardians after every meeting with

representatives from the school regarding a student with disabilities. The form will allow guardians,

to provide feedback on their experience, and level of satisfaction with the processes involving early

intervention, IEPs, 504 Plans, and related supports and services. Guardians will be encouraged to

complete and return the form to the school and a copy to the office so that the ombud may collect

and analyze data for research and recommendations.

     42-162-12. Availability of legal counsel to the office.

     The governor shall ensure that adequate legal counsel is available and is able, without

conflict of interest, to:

     (1) Provide advice and consultation to the office needed to protect the educational rights of

students; and

     (2) Assist the office and contractors in the performance of the official duties of the state

ombud and representatives.

LC003291 - Page 6 of 8

     42-162-13. Interference with the office and retaliation.

     (a) A person shall not willfully interfere with the lawful actions of the office.

     (b) A person shall not institute discriminatory, disciplinary or retaliatory action against any

student or guardian for filing a concern with, providing information to or otherwise cooperating

with the office.

     (c) If public school personnel or a contractor or volunteer of a school district or charter

school fails to comply with the provisions of this chapter:

     (1) The governor shall report the noncompliance to the department;

     (2) The office shall collaborate with the department to access processes and resources to

address special education services concerns; and

     (3) The office shall collaborate with the department to identify further appropriate actions

to be taken in response to the report, which may include a corrective action plan or any other

administrative action that the department is authorized to take to ensure that students receive the

free and appropriate public education required by state law including chapter 24 of title 16 and

federal law including the Individuals with Disabilities Education Act (IDEA).

     (4) The office shall provide a letter to the concerned person and guardian explaining the

actions needed to be taken by the department to ensure compliance with this chapter.

     SECTION 3. This act shall take effect upon passage.

========

LC003291

========

LC003291 - Page 7 of 8

EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT -- OFFICE OF THE SPECIAL

EDUCATION OMBUD

***

     This act would establish the Rhode Island ombud for special education, who would serve

independent of the department of elementary and secondary education, to ensure school districts

throughout the state meet the minimum standards required to comply with individualized education

programs for students with disabilities. This act would further direct that families be provided forms

to evaluate their level of confidence and satisfaction with the schools' program compliance that the

ombud may use to collect data and make recommendations.

     This act would take effect upon passage.

========

LC003291

========

LC003291 - Page 8 of 8