This document includes Senate 3rd Reading Floor Amendments incorporated into the bill on Thu, Feb 14, 2019 at 2:57 PM by estauffer.
Senator Lyle W. Hillyard proposes the following substitute bill:


1     
SPECIAL EDUCATION RECODIFICATION

2     
2019 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Val L. Peterson

5     
Senate Sponsor: Lyle W. Hillyard

6     

7     LONG TITLE
8     General Description:
9          This bill recodifies Title 53E, Chapter 7, Special Education.
10     Highlighted Provisions:
11          This bill:
12          ▸     defines terms;
13          ▸     repeals outdated provisions related to special education;
14          ▸     reorganizes, redrafts, and updates existing provisions related to special education;
15     and
16          ▸     makes technical and conforming changes.
17     Money Appropriated in this Bill:
18          None
19     Other Special Clauses:
20          This bill provides a coordination clause.
21     Utah Code Sections Affected:
22     AMENDS:
23          53E-3-503, as last amended by Laws of Utah 2018, Chapter 75 and renumbered and
24     amended by Laws of Utah 2018, Chapter 1
25          53E-7-201, as enacted by Laws of Utah 2018, Chapter 1

26          53G-8-305, as renumbered and amended by Laws of Utah 2018, Chapter 3
27          62A-2-108.1, as last amended by Laws of Utah 2018, Chapter 415
28          62A-5a-102, as last amended by Laws of Utah 2018, Chapter 415
29          62A-5a-105, as last amended by Laws of Utah 2018, Chapter 415
30     REPEALS AND REENACTS:
31          53E-7-202, as last amended by Laws of Utah 2018, Chapter 75 and renumbered and
32     amended by Laws of Utah 2018, Chapter 1
33          53E-7-204, as last amended by Laws of Utah 2018, Chapter 75 and renumbered and
34     amended by Laws of Utah 2018, Chapter 1
35          53E-7-206, as renumbered and amended by Laws of Utah 2018, Chapter 1
36          53E-7-207, as renumbered and amended by Laws of Utah 2018, Chapter 1
37          53E-7-208, as renumbered and amended by Laws of Utah 2018, Chapter 1
38     RENUMBERS AND AMENDS:
39          53G-6-709, (Renumbered from 53E-7-205, as renumbered and amended by Laws of
40     Utah 2018, Chapter 1)
41     REPEALS:
42          53E-7-301, as last amended by Laws of Utah 2018, Chapter 75 and renumbered and
43     amended by Laws of Utah 2018, Chapter 1
44          53E-7-302, as renumbered and amended by Laws of Utah 2018, Chapter 1
45          53E-7-303, as renumbered and amended by Laws of Utah 2018, Chapter 1
46          53E-7-304, as renumbered and amended by Laws of Utah 2018, Chapter 1
47     Utah Code Sections Affected by Coordination Clause:
48          53E-7-201, as enacted by Laws of Utah 2018, Chapter 1
49          53E-7-204, as last amended by Laws of Utah 2018, Chapter 75 and renumbered and
50     amended by Laws of Utah 2018, Chapter 1
51     

52     Be it enacted by the Legislature of the state of Utah:
53          Section 1. Section 53E-3-503 is amended to read:
54          53E-3-503. Education of individuals in custody of or receiving services from
55     certain state agencies -- Establishment of coordinating council -- Advisory councils.
56          (1) For purposes of this section, "board" means the State Board of Education.

57          (2) (a) The board is directly responsible for the education of all individuals who are:
58          (i) (A) younger than 21 years old; or
59          [(B) students with disabilities entitled to a free, appropriate public education as
60     described in Section 53E-7-202; and]
61          (B) eligible for special education services as described in Chapter 7, Part 2, Special
62     Education Program; and
63          (ii) (A) receiving services from the Department of Human Services;
64          (B) in the custody of an equivalent agency of a Native American tribe recognized by
65     the United States Bureau of Indian Affairs and whose custodial parent or legal guardian resides
66     within the state; or
67          (C) being held in a juvenile detention facility.
68          (b) The board shall make rules, in accordance with Title 63G, Chapter 3, Utah
69     Administrative Rulemaking Act, to provide for the distribution of funds for the education of
70     individuals described in Subsection (2)(a).
71          (3) Subsection (2)(a)(ii)(B) does not apply to an individual taken into custody for the
72     primary purpose of obtaining access to education programs provided for youth in custody.
73          (4) The board shall, where feasible, contract with school districts or other appropriate
74     agencies to provide educational, administrative, and supportive services, but the board shall
75     retain responsibility for the programs.
76          (5) The Legislature shall establish and maintain separate education budget categories
77     for youth in custody or who are under the jurisdiction of the following state agencies:
78          (a) detention centers and the Divisions of Juvenile Justice Services and Child and
79     Family Services;
80          (b) the Division of Substance Abuse and Mental Health; and
81          (c) the Division of Services for People with Disabilities.
82          (6) (a) The Department of Human Services and the board shall appoint a coordinating
83     council to plan, coordinate, and recommend budget, policy, and program guidelines for the
84     education and treatment of persons in the custody of the Division of Juvenile Justice Services
85     and the Division of Child and Family Services.
86          (b) The Department of Human Services and the board may appoint similar councils for
87     those in the custody of the Division of Substance Abuse and Mental Health or the Division of

88     Services for People with Disabilities.
89          (7) A school district contracting to provide services under Subsection (4) shall
90     establish an advisory council to plan, coordinate, and review education and treatment programs
91     for individuals held in custody in the district.
92          Section 2. Section 53E-7-201 is amended to read:
93          53E-7-201. Definitions.
94          [Reserved]
95          As used in this part:
96          (1) "Child with a disability" means the same as that term is defined in 34 C.F.R. Sec.
97     300.308.
98          (2) "Due process hearing" means an administrative due process hearing authorized by
99     20 U.S.C. Sec. 1415.
100          (3) "Individualized education program" or "IEP" means a written statement for an
101     eligible student that is developed, reviewed, and revised in accordance with the Individuals
102     with Disabilities Education Act, 20 U.S.C. Sec. 1400 et seq.
103          (4) "LEA special education program" means the implementation of an eligible student's
104     IEP by the eligible student's LEA.
105          (5) "Local education agency" or "LEA" means:
106          (a) a school district;
107          (b) a charter school; or
108          (c) the Utah Schools for the Deaf and the Blind.
109          (6) "Special education services" means the specialized instruction and related services,
110     described in an eligible student's IEP, that are necessary to provide a free appropriate public
111     education to the eligible student.
112          (7) "State board" means the State Board of Education.
113          (8) "Student who is eligible for special education services" or "eligible student" means
114     a child with a disability who is:
115          (a) at least 3 years old but younger than 22 years old; or
116          (b) 22 years old, if the school year in which the child with a disability turned 22 years
117     old has not yet ended.
118          Section 3. Section 53E-7-202 is repealed and reenacted to read:

119          53E-7-202. Free appropriate public education for eligible students.
120          An eligible student who has not received a regular high school diploma is entitled to a
121     free appropriate public education.
122          Section 4. Section 53E-7-204 is repealed and reenacted to read:
123          53E-7-204. State Board of Education special education authority and duties --
124     Rulemaking.
125          (1) The State Board of Education shall have general control and supervision over all
126     public educational programs in the state for students who are eligible for special education
127     services.
128          (2) A program described in Subsection (1) shall comply with state board rule.
129          (3) In accordance with federal law, state law, and Title 63G, Chapter 3, Utah
130     Administrative Rulemaking Act, the state board shall make rules to implement this part,
131     including provisions that ensure:
132          (a) appropriate and timely identification of a potential eligible student;
133          (b) the evaluation and classification of an eligible student by qualified personnel;
134          (c) standards for special education services and supports;
135          (d) availability of LEA special education programs;
136          (e) delivery of special education service responsibilities;
137          (f) certification and qualification for the instructional staff of eligible students; and
138          (g) special education services for eligible students who are dual enrollment students
139     attending public school on a part-time basis as described in Section 53G-6-702.
140          (4) In accordance with federal law, state law, and Title 63G, Chapter 3, Utah
141     Administrative Rulemaking Act, the state board may make rules to otherwise administer the
142     state board's authority described in Subsection (1).
143          Section 5. Section 53E-7-206 is repealed and reenacted to read:
144          53E-7-206. Special education funding.
145          In accordance with Title 53F, Chapter 2, State Funding -- Minimum School Program,
146     state board rule, and other applicable law, the state board shall administer the payment of
147     restricted state and federal funds to an LEA to provide special education services to an eligible
148     student.
149          Section 6. Section 53E-7-207 is repealed and reenacted to read:

150          53E-7-207. Local education agency special education duty and authority.
151          (1) An LEA shall, at no cost to the eligible student, provide a full continuum of special
152     education services and placements to an eligible student enrolled at the LEA.
153          (2) (a) Upon request of the Division of Child and Family Services Ŝ→ and if the LEA
153a     obtains appropriate consent for the evaluation ←Ŝ, an LEA shall
154     provide an initial special education evaluation to an individual who enters the custody of the
155     Division of Child and Family Services, if the Division of Child and Family Services suspects
156     the individual may be an eligible student.
157          (b) (i) Except as provided in Subsection (2)(b)(ii), the LEA shall conduct an evaluation
158     described in Subsection (2)(a) within 30 days after the day on which the Division of Child and
159     Family Services makes the request.
160          (ii) An LEA may refuse to conduct an evaluation described in Subsection (2)(a) if the
161     LEA reviews the relevant data regarding the individual and, within 10 days after the day on
162     which the LEA received the request described in Subsection (2)(a), gives the Division of Child
163     and Family Services written prior notice of refusal to evaluate.
164          (3) (a) In accordance with Subsection (3)(b), an LEA may provide education or training
165     for an individual with a disability who is:
166          (i) younger than 3 years old; or
167          (ii) at least 22 years old and not an eligible student.
168          (b) (i) Except as provided in Subsection (3)(b)(ii), an LEA may not use funding
169     described in Title 53F, Chapter 2, State Funding -- Minimum School Program, to pay for the
170     cost of education or training described in Subsection (3)(a).
171          (ii) An LEA may use adult education program funding described in Section 53F-2-401,
172     in accordance with the requirements described in Section 53F-2-401, to pay for the cost of the
173     education or training described in Subsection (3)(a).
174          (c) To pay for the cost of education or training described in Subsection (3)(a), an LEA
175     may use fees, contributions, or other funds received by the LEA if the purpose of the fees,
176     contributions, or other funds is to provide the education or training.
177          Section 7. Section 53E-7-208 is repealed and reenacted to read:
178          53E-7-208. Special education dispute resolution -- Rulemaking -- Due process
179     hearing -- Right to appeal.
180          (1) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, and

181     this section, the state board shall make rules that:
182          (a) allow for a prompt, fair, and final resolution of a dispute that arises over the
183     provision of special education services to an eligible student;
184          (b) establish and maintain procedural safeguards that meet the requirements of 20
185     U.S.C. Sec. 1415; and
186          (c) establish timelines that provide adequate time to address and resolve a dispute
187     described in Subsection (1)(a) without unnecessarily disrupting or delaying an eligible student's
188     free appropriate public education.
189          (2) A party to a dispute described in Subsection (1)(a), including an LEA, shall make a
190     diligent and good faith effort to resolve the dispute informally at the LEA level before seeking
191     a due process hearing under state board rule.
192          (3) (a) If a dispute is not resolved informally as described in Subsection (2), a party to
193     the dispute may request a due process hearing in accordance with state board rule.
194          (b) Upon request of a party to a dispute described in Subsection (2), the state board
195     shall, in accordance with state board rule and 20 U.S.C. Sec. 1415:
196          (i) conduct a due process hearing; and
197          (ii) issue a decision on the due process hearing.
198          (4) (a) A party to a due process hearing may appeal the decision resulting from the due
199     process hearing by filing a civil action with a court described in 20 U.S.C. Sec. 1415(i), if the
200     party files the action within 30 days after the day on which the due process hearing decision
201     was issued.
202          (b) If parties to a due process hearing fail to reach agreement on the payment of
203     attorney fees for the due process hearing, a party may seek to recover attorney fees in
204     accordance with 20 U.S.C. Sec. 1415(i) by filing a court action within 30 days after the day on
205     which the due process hearing decision was issued.
206          Section 8. Section 53G-6-709, which is renumbered from Section 53E-7-205 is
207     renumbered and amended to read:
208          [53E-7-205].      53G-6-709. Participation of students with a disability in
209     extracurricular activities.
210          (1) A student with a disability may not be denied the opportunity of participating in a
211     public school [programs] program or extracurricular [activities] activity solely because of the

212     student's age or disability, unless the participation threatens the health or safety of the student.
213          (2) The school district or charter school, in cooperation with the Utah Department of
214     Health shall establish criteria used to determine the health and safety factor.
215          (3) Subsection (1) applies to a student who:
216          (a) has not graduated from high school with a regular diploma; and
217          (b) is under the age of [20] 22, if participation is recommended by the student's
218     individualized education program team.
219          Section 9. Section 53G-8-305 is amended to read:
220          53G-8-305. Exception.
221          Behavior reduction intervention which is in compliance with Section 76-2-401 and with
222     state and local rules adopted under Section [53E-7-202] 53E-7-204 is excepted from this part.
223          Section 10. Section 62A-2-108.1 is amended to read:
224          62A-2-108.1. Coordination of human services and educational services --
225     Licensing of programs -- Procedures.
226          (1) For purposes of this section:
227          (a) "accredited private school" means a private school that is accredited by an
228     accrediting entity recognized by the Utah State Board of Education; and
229          (b) "education entitled children" means children:
230          (i) subject to compulsory education under Section 53G-6-202;
231          (ii) subject to the school attendance requirements of Section 53G-6-203; or
232          [(iii) entitled to educational services under Section 53E-7-202.]
233          (iii) who are eligible for special education services as described in Title 53E, Chapter
234     7, Part 2, Special Education Program.
235          (2) Subject to Subsection (8) or (9), a human services program may not be licensed to
236     serve education entitled children unless the human services program presents an educational
237     service plan that includes evidence:
238          (a) satisfactory to:
239          (i) the office; and
240          (ii) (A) the local school board of the school district in which the human services
241     program will be operated; or
242          (B) the school district superintendent of the school district in which the human services

243     program will be operated; and
244          (b) that children served by the human services program shall receive appropriate
245     educational services satisfying the requirements of applicable law.
246          (3) Subject to Subsection (8) or (9), if a human services program serves any education
247     entitled children whose custodial parents or legal guardians reside outside the state, then the
248     program shall also provide an educational funding plan that includes evidence:
249          (a) satisfactory to:
250          (i) the office; and
251          (ii) (A) the local school board of the school district in which the human services
252     program will be operated; or
253          (B) the school district superintendent of the school district in which the human services
254     program will be operated; and
255          (b) that all costs for educational services to be provided to the education entitled
256     children, including tuition, and school fees approved by the local school board, shall be borne
257     by the human services program.
258          (4) Subject to Subsection (8) or (9), and in accordance with Subsection (2), the human
259     services program shall obtain and provide the office with a letter:
260          (a) from the entity referred to in Subsection (2)(a)(ii):
261          (i) approving the educational service plan referred to in Subsection (2); or
262          (ii) (A) disapproving the educational service plan referred to in Subsection (2); and
263          (B) listing the specific requirements the human services program must meet before
264     approval is granted; and
265          (b) from the entity referred to in Subsection (3)(a)(ii):
266          (i) approving the educational funding plan, referred to in Subsection (3); or
267          (ii) (A) disapproving the educational funding plan, referred to in Subsection (3); and
268          (B) listing the specific requirements the human services program must meet before
269     approval is granted.
270          (5) Subject to Subsection (8), failure of a local school board or school district
271     superintendent to respond to a proposed plan within 45 days of receipt of the plan is equivalent
272     to approval of the plan by the local school board or school district superintendent if the human
273     services program provides to the office:

274          (a) proof that:
275          (i) the human services program submitted the proposed plan to the local school board
276     or school district superintendent; and
277          (ii) more than 45 days have passed from the day on which the plan was submitted; and
278          (b) an affidavit, on a form produced by the office, stating:
279          (i) the date that the human services program submitted the proposed plan to the local
280     school board or school district superintendent;
281          (ii) that more than 45 days have passed from the day on which the plan was submitted;
282     and
283          (iii) that the local school board or school district superintendent described in
284     Subsection (5)(b)(i) failed to respond to the proposed plan within 45 days from the day on
285     which the plan was submitted.
286          (6) If a licensee that is licensed to serve an education entitled child fails to comply with
287     its approved educational service plan or educational funding plan, then:
288          (a) the office shall give the licensee notice of intent to revoke the licensee's license; and
289          (b) if the licensee continues its noncompliance for more than 30 days after receipt of
290     the notice described in Subsection (6)(a), the office shall revoke the licensee's license.
291          (7) If an education entitled child whose custodial parent or legal guardian resides
292     within the state is provided with educational services by a school district other than the school
293     district in which the custodial parent or legal guardian resides, then the funding provisions of
294     Section 53G-6-405 apply.
295          (8) A human services program that is an accredited private school:
296          (a) for purposes of Subsection (2):
297          (i) is only required to submit proof to the office that the accreditation of the private
298     school is current; and
299          (ii) is not required to submit an educational service plan for approval by an entity
300     described in Subsection (2)(a)(ii);
301          (b) for purposes of Subsection (3):
302          (i) is only required to submit proof to the office that all costs for educational services
303     provided to education entitled children will be borne by the human services program; and
304          (ii) is not required to submit an educational funding plan for approval by an entity

305     described in Subsection (3)(a)(ii); and
306          (c) is not required to comply with Subsections (4) and (5).
307          (9) Except for Subsection (7), the provisions of this section do not apply to a human
308     services program that is:
309          (a) a foster home; and
310          (b) required to be licensed by the office.
311          Section 11. Section 62A-5a-102 is amended to read:
312          62A-5a-102. Definitions.
313          As used in this chapter:
314          (1) "Council" means the Coordinating Council for Persons with Disabilities.
315          (2) "State agencies" means:
316          (a) the Division of Services for People with Disabilities and the Division of Substance
317     Abuse and Mental Health, within the Department of Human Services;
318          (b) the Division of Health Care Financing within the Department of Health;
319          (c) family health services programs established under Title 26, Chapter 10, Family
320     Health Services, operated by the Department of Health;
321          (d) the Utah State Office of Rehabilitation created in Section 35A-1-202; and
322          (e) special education programs operated by the State Board of Education [and local
323     school districts] or an LEA under Title 53E, Chapter 7, Part 2, Special Education Program.
324          Section 12. Section 62A-5a-105 is amended to read:
325          62A-5a-105. Coordination of services for school-age children.
326          (1) Within appropriations authorized by the Legislature, the state director of special
327     education, the director of the Utah State Office of Rehabilitation created in Section 35A-1-202,
328     the executive director of the Department of Human Services, and the family health services
329     director within the Department of Health, or their designees, and the affected [local school
330     district] LEA, as defined in Section 53E-7-201, shall cooperatively develop a single
331     coordinated education program, treatment services, and individual and family supports for
332     students entitled to a free appropriate education under Title 53E, Chapter 7, Part 2, Special
333     Education Program, who also require services from the Department of Human Services, the
334     Department of Health, or the Utah State Office of Rehabilitation.
335          (2) Distribution of costs for services and supports described in Subsection (1) shall be

336     determined through a process established by the State Board of Education, the Department of
337     Human Services, and the Department of Health.
338          Section 13. Repealer.
339          This bill repeals:
340          Section 53E-7-301, Definitions.
341          Section 53E-7-302, Braille skills assessment -- Development of individualized
342     education program.
343          Section 53E-7-303, Instruction in reading and writing of Braille.
344          Section 53E-7-304, Braille versions of textbooks.
345          Section 14. Coordinating H.B. 29 with H.B. 27 -- Substantive and technical
346     amendments.
347          If this H.B. 29 and H.B. 27, Public Education Definitions Amendments, both pass and
348     become law, it is the intent of the Legislature that the Office of Legislative Research and
349     General Counsel shall prepare the Utah Code database for publication by:
350          (1) repealing Subsections 53E-7-201(3), (5), and (7) and renumbering the remaining
351     subsections accordingly; and
352          (2) replacing the words "State Board of Education" in Subsection 53E-7-204(1) with
353     the words "state board".