2022 -- H 7536

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LC003291

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2022

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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, 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:

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

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

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

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the IDEA. These principles are as follows:

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     (i) To identify the child with special needs;

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     (ii) To provide free and appropriate public education;

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

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

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educational programming;

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

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

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designed to the needs of the student;

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

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an appropriate education designed to meet their special needs.

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

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

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throughout the special education process; and

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

 

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

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

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

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

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

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and obtain an individual educational evaluation of the student.

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

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

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CHAPTER 162

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OFFICE OF THE SPECIAL EDUCATION OMBUD

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     42-162-1. Establishment.

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

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     42-162-2. Purpose.

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

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

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

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

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

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

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

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

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Education Act (IDEA).

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     42-162-3. Definitions.

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

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

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

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

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

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

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

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

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authority to make educational decisions on behalf of the student;

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

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

 

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education ombud; and

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

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

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transitional plan for student leaving high school.

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

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

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

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

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

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

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

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

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advocacy law appointed by the Rhode Island Bar Association;

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

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Rhode Island School Superintendents Organization;

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

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of Teachers (AFT);

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

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Association;

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

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appointed by Rhode Island Advocacy for Children;

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

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disabilities council, or designee; and

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

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

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

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

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

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     (a) The state special education ombud shall:

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

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are filed with the office by guardians;

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

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

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

 

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Education Act (IDEA);

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

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

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

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representatives of the office;

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

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educational rights and recommend strategies for improvement to the department;

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

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

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

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report systemic special education issues to the department;

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

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

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state;

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

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opportunities;

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     (iii) Dispute resolution; and

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

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

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

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

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

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

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

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

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

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recommendations related to those problems and concerns.

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     42-162-6. Annual report.

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

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governor and to the general assembly that includes:

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

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

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

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

 

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students and protecting the educational rights of students; and

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

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

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

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remove barriers to education and educational services.

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

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

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

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

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and the reasons for the decision.

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

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

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

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

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responsibilities.

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     42-162-9. Confidentiality.

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

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

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

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

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

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disclosure; or

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

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

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

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

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immediately in writing by a representative of the office; or

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     (4) Disclosure is ordered by the court.

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

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

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

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relationship and communications between the student and the office.

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     42-162-10. Conflict of Interest.

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     (a) An ombud shall not:

 

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

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special education services;

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

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education services; and

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

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providing special education services.

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     (b) The governor shall ensure that:

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

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have a conflict of interest;

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

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

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

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

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

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

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

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

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

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

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form of the notice shall be approved by the office.

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

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

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

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

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

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

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and analyze data for research and recommendations.

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

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

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conflict of interest, to:

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

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students; and

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

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ombud and representatives.

 

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

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

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

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

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with the office.

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

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school fails to comply with the provisions of this chapter:

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

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

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address special education services concerns; and

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

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

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

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

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

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

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

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     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

***

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

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

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

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

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

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ombud may use to collect data and make recommendations.

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     This act would take effect upon passage.

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