GENERAL ASSEMBLY OF NORTH CAROLINA
1989 SESSION
CHAPTER 1058
The General Assembly of North Carolina enacts:
Section 1. G.S. 115C-116 reads as rewritten:
"§ 115C-116. Notice of decisions; mediation, administrative review, and judicial review of disagreements.
(a) Prior Notice. - The parent, guardian, or surrogate parent of a child shall be notified promptly when the local educational agency proposes to initiate or change, or refuses to initiate or change, the identification, evaluation, or educational placement of a child as a child with special needs. The written notice shall contain a full explanation of all the procedural safeguards available to the parent, guardian, or surrogate parent including the right to review the proposed decision, and a statement offering the parent, guardian, or surrogate parent the opportunity for mediation. The local educational agency shall document that all required notices have been sent to and received by parents, guardians, or surrogate parents.
(b) Mediation. - Mediation of disputes or disagreements regarding the identification of children with special needs and the provision of special education for children with special needs prior to formal administrative review is encouraged. If a request for formal administrative review has not been filed, the superintendent, upon the request of a parent, guardian, or surrogate parent, shall meet, or designate an assistant or associate superintendent to meet, with the parent, guardian, or surrogate parent to attempt to resolve the dispute or disagreement. The meeting shall be informal and the General Assembly intends that the meeting shall be nonadversarial, as required by G.S. 150B-22.
(c) Right of Review. - The parent, guardian, or surrogate parent may obtain review of proposed decisions on the following grounds:
(1) The child has not been identified or has been incorrectly identified as a child with special needs;
(2) The child's individualized education plan is not appropriate to meet his needs;
(3) The child's individualized education plan is not being implemented; or
(4) The child is otherwise being denied a free, appropriate education.
In addition, a local educational agency may obtain review as provided by this section if a parent, guardian, or surrogate parent refuses to consent to the evaluation of the child for the purpose of determining whether the child is a child with special needs or for the purpose of developing a free appropriate educational program for the child.
(d) Administrative Review. - Except as otherwise provided in this section, the administrative review shall be initiated and conducted in accordance with Article 3 of Chapter 150B of the General Statutes, the Administrative Procedure Act.
(e) Scope of Review. - Notwithstanding
the provisions of G.S. 150B-23(a) and G.S. 150B-33(b)(9), the The issues
for review shall be limited to those set forth in subsection (c).
(f) Venue of
Hearing. - Notwithstanding the provisions of G.S. 150B-24, the The hearing
shall be conducted in the county where the child attends school or is entitled
to enroll pursuant to G.S. 115C-366.
(g) Hearing Closed. - Notwithstanding
the provisions of G.S. 150B-23(e), the The hearing shall be closed
to the public unless the parent, guardian, or surrogate parent, prior to the
beginning of the hearing, requests in writing that the hearing be open to
the public.
(h) Recommended
Decision. - Following the hearing, the administrative law judge shall make a
recommended decision to the State Board of Education. The recommended
decision shall conform to and be prepared in accordance with G.S. 150B-34. Decision
of the Administration Law Judge. - Following the hearing, the administrative
law judge shall make a decision regarding the issues set forth in subsection
(c). The decision shall contain findings of fact and conclusions of law.
Notwithstanding the provisions of Chapter 150B of the General Statutes, the
decision of the administrative law judge becomes final and not subject to further
review unless appealed to the Review Officer as provided in subsection
(i). A copy of the administrative law judge's decision shall be served
upon each party and a copy shall be furnished to the attorneys of record.
The written notice shall contain a statement informing the parties of the
availability of appeal and the 30-day limitations period for appeal as set
forth in subsection (i).
(i) Final
Decision by the State Board of Education. - The final decision shall be made by
the State Board of Education in accordance with G.S. 150B-36. In its
discretion, the State Board may appoint a panel of at least two members of the
Board to make the final decision for and on its behalf in accordance with G.S.
150B-36, and if the Board elects to exercise its discretion the decision of the
panel shall be the final decision. Review by Review Officer. - Any party
aggrieved by the decision of the administrative law judge may appeal that
decision within 30 days after receipt of notice of the decision by filing a
written notice of appeal with the Superintendent of Public Instruction.
The State Superintendent of Public Instruction shall appoint a Review Officer
from a pool of review officers approved by the State Board of Education.
A Review Officer must be an educator or other professional who is knowledgeable
about special education and who possesses such other qualifications as may be
established by the State Board of Education.
No person may be appointed as a Review Officer if that person is an employee of an agency that has been involved in the education or care of the child whose parents have filed the petition (including an employee or official of the State Department of Education or the State Board of Education) or if the person is or has been employed by the local Board of Education responsible for the education or care of the child whose parents have filed the petition. The decision of the Review Officer shall contain findings of fact and conclusions of law and becomes final unless an aggrieved party brings a civil action pursuant to subsection (k). A copy of the decision shall be served upon each party and a copy shall be furnished to the attorneys of record. The written notice shall contain a statement informing the parties of the right to file a civil action and the 30-day limitations period for filing a civil action pursuant to subsection (k).
(j) Power to
Enforce Final Decision. - The State Board shall have the power to enforce its
the final decision of the administrative law judge, if not
appealed pursuant to subsection (i), or the final decision of the Review
Officer, by ordering a local educational agency:
(1) To provide a child
with an appropriate education;
(2) To place a child in a private school that is approved to provide special education and that can provide the child an appropriate education; or
(3) To reimburse parents
for reasonable private school placement costs in accordance with the provisions
of G.S. 115C-115 in the event it determines when it is
determined that the local educational agency did not offer or provide the
child with an appropriate education and the private school in which the
parent, guardian, or surrogate parent placed the child was an approved school
and did provide the child an appropriate education.
(k) Judicial Review. Right
to File Civil Action. - Any party aggrieved by the State Board's
decision may seek judicial review in the State courts as provided in Chapter
150B, Article 4 of the General Statutes, or in federal court as provided in 20
U.S.C. § 1415. decision of the Review Officer may institute a civil
action in State or federal court as provided in 20 U.S.C. § 1415 within 30 days
after receipt of notice of the decision.
(l) Change in Placement. - Upon the filing of a petition, no change may be made in the child's status or program by school officials during the period of the administrative review or subsequent judicial review, unless the parent, guardian, or surrogate parent gives written consent."
Sec. 2. This act shall become effective October 1, 1990, and shall apply to all petitions filed on or after that date.
In the General Assembly read three times and ratified this the 28th day of July, 1990.