2023 -- H 5166

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LC000141

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2023

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A N   A C T

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

EDUCATION OMBUD

     Introduced By: Representatives Carson, Cortvriend, Craven, Diaz, Fogarty, Bennett,
Donovan, Casimiro, McGaw, and Shallcross Smith

     Date Introduced: January 19, 2023

     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 in order 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 165

OFFICE OF THE SPECIAL EDUCATION OMBUD

     42-165-1. Establishment.

     There is hereby created and established the office of the special education ombud.

     42-165-2. Purpose.

     (a) The office of the special education ombud (the office) shall be independent of the Rhode

Island department of education (the department) and shall serve as an impartial state office readily

available to members of the public, including, but not limited to, teachers, local education agencies

(LEAs), advocates, students, 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.

     (b) The primary responsibility of the office shall be to direct students, parents, guardians

or custodians to the most appropriate resource in the community, in a school district or within the

department, to ensure compliance by schools and school districts with the applicable individualized

education program (IEP), as defined in Section 1401 of 20 U.S.C., 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).

     (c) When appropriate and necessary, in the discretion of the ombud and pursuant to this

chapter, the office of the special education ombud may also serve to monitor and investigate

administrative action by the department related to special education services and its authority under

the Individuals with Disabilities Education Act.

     42-165-3. Definitions.

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

     (1) "504 Plan" means § 504 of the Rehabilitation Act of 1973 (Pub. L. No. 93-112, 87 Stat.

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

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     (2) "Administrative action" means any action, decision, adjudication, failure to act,

omission, rule or regulation, interpretation, recommendation, policy, practice or procedure of the

department.

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

     (4) "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 who has legal authority

to make educational decisions on behalf of the student;

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

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

education ombud; and

     (7) "Student" means a public school, public charter school or private 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.

     42-165-4. 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 analyze problems of law, administration and public policy,

and to perform the responsibilities of the state special education ombud, as set forth in this chapter.

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. The ombud may be reappointed for additional terms.

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

a committee, to be convened by the governor, 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 a special education administrator of a municipal school district,

appointed by the Association of Rhode Island Administrators of Special Education;

     (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

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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).

     42-165-5. Organization of the office of the state special education ombud.

     (a) The ombud shall select, appoint and fix the compensation of a person as deputy ombud

and shall select, appoint and fix the compensation of such other employees as the ombud may deem

necessary to discharge the ombud’s responsibilities under this chapter, and shall include, but not

be limited to:

     (1) In-house legal counsel;

     (2) A data and evaluation coordinator;

     (3) An intake coordinator to screen inquiries and complaints filed by the public; and

     (4) A community liaison to develop strategic partnerships with community organizations,

including the parent training and information center, that serve students with disabilities and their

families. Compensation shall be fixed within the amount available by appropriation. All officers

and employees shall serve at the ombud’s pleasure.

     (b) The ombud may delegate to staff members any authority, power or duty except this

power of delegation and the ombud’s duty to make any report under this chapter. However, the

ombud may authorize the deputy ombud to act in the ombud’s stead in the event of illness, absence,

leave or disability, or when, in the ombud’s sole discretion, an appearance of impropriety or

partiality or a conflict of interest prevents the ombud from discharging his or her duty in a particular

matter.

     42-165-6. Powers and duties of the state special education ombud.

     (a) The state special education ombud shall have the authority to:

     (1) Monitor the department’s special education complaint and dispute resolution processes

to ensure transparency and accountability;

     (2) Investigate, on complaint or on the ombud’s own initiative, any administrative act by

the department pertaining to special education services, pursuant to § 42-165-8;

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

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

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

(IDEA);

     (4) Under limited circumstances pursuant to § 42-165-8, investigate special education-

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related action taken by a local education agency or school; and

     (5) Promulgate rules and regulations required for the discharge of the ombud’s duties,

including procedures for receiving and processing complaints, conducting investigations, and

reporting findings conclusions and recommendations;

     (b) The office of the state special education ombud shall:

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

     (2) 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;

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

educational rights and recommend strategies for improvement to the department;

     (4) Collaborate with the department and local education agencies' directors of special

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

     (5) Collect, analyze, and disseminate data and collaborate with advocacy agencies within

the state to identify and report systemic special education issues to the department;

     (6) 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;

     (7) 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;

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

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

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

     (10) 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.

     42-165-7. 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:

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     (1) Actions taken by the office in the prior school 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

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.

     42-165-8. Investigations of special education complaints to the ombud.

     (a) The office shall have the authority to investigate complaints related to special education

communicated to the office by or on behalf of students and guardians, pursuant to procedures and

regulations promulgated by the office of the special education ombud.

     (b) Prior to formally investigating special education complaints, the office of the state

special education ombud shall make a reasonable effort to determine:

     (1) That the student, parent, or guardian has pursued standard special education dispute

resolution processes, or has not been reasonably able to avail themselves of the opportunity to

pursue those processes; or

     (2) That the matter has been referred to the office for investigation by a federally-

designated parent training and information center (PTIC) charged with dealing with special

education and disabilities under 20 U.S.C. 1471; or

     (3) That the student, parent, or guardian has filed a complaint with the department, and the

department has failed to provide timely response to such complaint, or the department has

responded to such complaint and the student’s school or district has failed to comply with the

department’s determination.

     (c)(1) If determined by the ombud to be a suitable subject for investigation, the ombud may

conduct a suitable investigation. An appropriate subject for investigation by the ombud includes

any administrative act by the department which the ombud believes may be:

     (i) Contrary to law or regulation;

     (ii) Based on mistaken facts or irrelevant considerations;

     (iii) Unsupported by an adequate statement of reasons;

     (iv) Performed in an inefficient manner;

     (v) Unreasonable, unfair, or otherwise objectionable, even though in accordance with law;

or

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     (vi) Otherwise erroneous.

     (2) Additionally, a complaint that a school or district has failed to comply with a previous

special education dispute resolution agreement or determination made by the department shall be

considered an appropriate subject for investigation by the ombud.

     (d) If, after investigation, the ombud is of the opinion that the department should:

     (1) Consider the matter further;

     (2) Modify or cancel an administrative action;

     (3) Alter a regulation or practice;

     (4) Explain more fully the administrative action in question; or

     (5) Pursue additional administrative action, in the case of a school or district failing to

comply with a previous agreement or department determination, the ombud shall state any

conclusions, recommendations and reasons therefore to the department. If the ombud so requests,

the department shall inform the ombud, in a timely manner, about the action taken on

recommendations or reasons for not adopting recommendations.

     (e) Before formally issuing a conclusion or recommendation that is significantly critical or

adverse to the department, the ombud shall have consulted with the department and permitted the

department reasonable opportunity to reply.

     (f) The ombud, in his or her discretion, may decide not to investigate for reasons including,

but not limited to:

     (1) The complainant could reasonably be expected to use another remedy or channel;

     (2) The complaint is trivial or not made in good faith;

     (3) The complainant is not aggrieved, either personally or on behalf of a student over whom

they have custody and control, by the subject matter of the complaint; or

     (4) Resources are insufficient for adequate investigation;

     (g) The ombud declining to investigate a complaint shall not bar the ombud from

proceeding on his or her own initiative to investigate an administrative act whether or not included

in the complaint.

     (h) If the office does not address a complaint, the office shall notify the complainant of the

decision not to address the complaint and the reasons for the decision, and shall, if appropriate,

refer the complainant to other special education resources in the community.

     42-165-9. 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, local education agency or any

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

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responsibilities.

     42-165-10. 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 Family Educational Rights and Privacy Act (FERPA) and

the 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, provided they are over the age of eighteen (18), or the student's guardian

consents in writing to the disclosure; or

     (2) The student, who is over the age of eighteen (18), or the student's guardian is unable to

give written consent, and the student or the student's guardian gives consent using any method that

the student or the student's guardian is able to; provided that, the method used to communicate is

usual or customary for the individual and clearly indicates that they consent to the disclosure; and

provided further that, 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 this chapter 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.

     42-165-11. Conflict of Interest.

     (a) An ombud shall not:

     (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 the person or an immediate family member of that person

appointed ombud does not have a conflict of interest.

     (c) The ombud shall ensure that an employee or a contractor of the office does not have a

conflict of interest.

     42-165-12. Posting and distribution of ombud information - Evaluation of process.

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

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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 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 developed by the office and made easily available to schools.

     (b) The department, in conjunction with the ombud, shall develop and implement a

reasonable, accessible and consistent method of evaluation that shall be made available to students

and/or parents or guardians, for the purpose of regularly collecting feedback from families about

their satisfaction with special education services and dispute resolution processes that are available

to them. The evaluation shall be made available in as many modalities as is necessary to be made

reasonably accessible to any student or guardian, and shall be made available in multiple languages.

Students and guardians shall have the option to complete the evaluation anonymously, and any

published data from the evaluation shall be de-identified and protect personally identifiable data.

The ombud shall have access to all data collected from the evaluation method(s) adopted by the

department.

     42-165-13. 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 its representatives.

     42-165-14. 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 complaint with, providing information to or otherwise cooperating

with the office.

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

district or the department fails to comply with the provisions of this chapter:

     (1) The ombud shall report the noncompliance to the commissioner of elementary and

secondary education or, when appropriate, the governor;

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

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address special education services concerns;

     (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); and

     (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.

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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 office of the Rhode Island ombud for special education, which

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 the

individualized education programs for students with disabilities. This act would also require that

families be provided a method of evaluation for collecting feedback about the level of satisfaction

with the special education services and dispute resolution processes available to them.

     This act would take effect upon passage.

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