2005 North Carolina Code - General Statutes Article 9 - Special Education.
Article 9.
Special Education.
Part 1. State Policy.
§ 115C‑106. Policy.
(a) The General Assembly of North Carolina hereby declares that the policy of the State is to ensure every child a fair and full opportunity to reach his full potential and that no child as defined in this section and in G.S. 115C‑122 shall be excluded from service or education for any reason whatsoever. This policy shall be the practice of the State for children from birth through age 21 and the State requires compliance by all local education agencies and local school administrative units, all local human services agencies including, but not limited to, local health departments, local social service departments, community mental health centers and all State departments, agencies, institutions except institutions of higher education, and private providers which are recipients of general funds as these funds are defined in G.S. 143‑1.
(b) The policy of the State is to provide a free appropriate publicly supported education to every child with special needs. The purpose of this Article is to (i) provide for a system of special educational opportunities for all children requiring special education, hereinafter called children with special needs; (ii) provide a system for identifying and evaluating the educational needs of all children with special needs; (iii) require evaluation of the needs of such children and the adequacy of special education programs before placing children in the programs; (iv) require periodic evaluation of the benefits of the programs to the children and of the nature of the children's needs after placement; (v) prevent denials of equal educational opportunity on the basis of physical, emotional, or mental handicap; (vi) assure that the rights of children with special needs and their parents or guardians are protected; (vii) ensure that there be no inadequacies, inequities, and discrimination with respect to children with special needs; and (viii) bring State law, regulations, and practice into conformity with relevant federal law. (1973, c. 1293, ss. 2‑4; 1975, c. 563, ss. 1‑5; 1977, c. 927, ss. 1, 2; 1979, 2nd Sess., c. 1295; 1981, c. 423, s. 1; 1997‑443, s. 11A.47.)
§ 115C‑107. Children can learn.
The General Assembly finds that all children with special needs are capable of benefitting from appropriate programs of special education and training and that they have the ability to be educated and trained and to learn and develop. Accordingly, the State has a duty to provide them with a free appropriate public education. (1977, c. 927, s. 1; 1981, c. 423, s. 1.)
§ 115C‑108. Definition of special education and related services.
The term "special education" means specially designed instruction, at no cost to the parents or guardians, to meet the unique needs of a special needs child, including classroom instruction, instruction in physical education, home instruction, and instruction in hospitals and institutions. The term also includes speech pathology, audiology, occupational and physical therapy. The term "related services" means transportation for handicapped children with special needs who are unable because of their handicap to ride the regular school buses and such developmental, corrective and other supportive services as are required to assist a special needs child to benefit from special education and includes speech pathology and audiology, psychological services, physical and occupational therapy, recreation, early identification and assessment of disabilities in children, counseling services, and medical services for diagnostic or evaluation purposes only. The term also includes school social work services, parent counseling and training, providing parents with information about child development and assisting parents in understanding the special needs of their child. Other similar services, materials and equipment may be provided as approved by regulations adopted by the State Board of Education. (1977, c. 927, s. 1; 1981, c. 423, s. 1; 1985, c. 479, s. 26(a).)
§ 115C‑109. Definition of children with special needs.
The term "children with special needs" includes, without limitation, all children from age five through age 20 who because of permanent or temporary mental, physical or emotional handicaps need special education, are unable to have all their needs met in a regular class without special education or related services, or are unable to be adequately educated in the public schools. It includes those who are mentally retarded, epileptic, learning disabled, cerebral palsied, seriously emotionally disturbed, orthopedically impaired, autistic, multiply handicapped, pregnant, hearing‑impaired, speech‑impaired, blind or visually impaired, and other health impaired. (1977, c. 927, s. 1; 1981, c. 423, s. 1; 1983, c. 247, ss. 1, 2; 1983 (Reg. Sess., 1984), c. 1034, ss. 23, 24; 1985, c. 780, ss. 3, 4; 1996, 2nd Ex. Sess., c. 18, s. 18.24(b).)
§ 115C‑110. Services mandatory; single‑agency responsibility; State and local plans; census and registration.
(a) The Board shall cause to be provided by all local school administrative units and by all other State and local governmental agencies providing special education services or having children with special needs in their care, custody, management, jurisdiction, control, or programs, special education and related services appropriate to all children with special needs. In this regard, all local school administrative units and all other State and local governmental agencies providing special education and related services shall explore available local resources and determine whether the services are currently being offered by an existing public or private agency.
When a specified special education or related service is being offered by a local public or private resource, any unit or agency described above shall negotiate for the purchase of that service or shall present full consideration of alternatives and its recommendations to the Board. In this regard, a new or additional program for special education or related services shall be developed with the approval of the Board only when that service is not being provided by existing public or private resources or the service cannot be purchased from existing providers. Further, the Board shall support and encourage joint and collaborative special education planning and programming at local levels to include local administrative units and the programs and agencies of the Departments of Health and Human Services, Correction, and Juvenile Justice and Delinquency Prevention.
The jurisdiction of the Board with respect to the design and content of special education programs or related services for children with special needs extends to and over the Department of Health and Human Services, the Department of Juvenile Justice and Delinquency Prevention, and the Department of Correction.
All provisions of this Article that are specifically applicable to local school administrative units also are applicable to the Department of Health and Human Services, the Department of Juvenile Justice and Delinquency Prevention, and the Department of Correction and their divisions and agencies; all duties, responsibilities, rights and privileges specifically imposed on or granted to local school administrative units by this Article also are imposed on or granted to the Department of Health and Human Services, the Department of Juvenile Justice and Delinquency Prevention, and the Department of Correction and their divisions and agencies. However, with respect to children with special needs who are residents or patients of any state‑operated or state‑supported residential treatment facility, including without limitation, a school for the deaf, school for the blind, mental hospital or center, mental retardation center, or in a facility operated by the Department of Juvenile Justice and Delinquency Prevention, the Department of Correction or any of its divisions and agencies, the Board shall have the power to contract with the Department of Health and Human Services, the Department of Juvenile Justice and Delinquency Prevention, and the Department of Correction for the provision of special education and related services and the power to review, revise and approve any plans for special education and related services to those residents.
The Departments of Health and Human Services, Correction, and Juvenile Justice and Delinquency Prevention shall submit to the Board their plans for the education of children with special needs in their care, custody, or control. The Board shall have general supervision and shall set standards, by rule or regulation, for the programs of special education to be administered by it, by local educational agencies, and by the Departments of Health and Human Services, Correction, and Juvenile Justice and Delinquency Prevention. The Board may grant specific exemptions for programs administered by the Department of Health and Human Services, the Department of Juvenile Justice and Delinquency Prevention, or the Department of Correction when compliance by them with the Board's standards would, in the Board's judgment, impose undue hardship on this department and when other procedural due process requirements, substantially equivalent to those of G.S. 115C‑116, are assured in programs of special education and related services furnished to children with special needs served by this department. Further, the Board shall recognize that inpatient and residential special education programs within the Departments of Health and Human Services, Correction, and Juvenile Justice and Delinquency Prevention may require more program resources than those necessary for optimal operation of these programs in local school administrative units.
Every State and local department, division, unit or agency covered by this section is hereinafter referred to as a "local educational agency" unless the text of this Article otherwise provides.
(b) The Board shall make and keep current a plan for the implementation of the policy set forth in G.S. 115C‑106(b). The plan shall include:
(1) A census of the children with special needs in the State, as required by subsection (j) of this section;
(2) A procedure for diagnosis and evaluation of each child;
(3) An inventory of the personnel and facilities available to provide special education for these children;
(4) An analysis of the present distribution of responsibility for special education between State and local educational agencies, together with recommendations for any necessary or desirable changes in the distribution of responsibilities;
(5) Standards for the education of children with special needs;
(6) Programs and procedures for the development and implementation of a comprehensive system of personnel development; and
(7) Any additional matters, including recommendations for amendment of laws, changes in administrative regulations, rules and practices and patterns of special organization, and changes in levels and patterns of education financial support.
(c) The Board shall annually submit amendments to or revisions of the plan required by subsection (b) to the Governor and General Assembly and make it available for public comment pursuant to subdivision (1) and for public distribution no less than 30 days before January 15 of each year. All such submissions shall set forth in detail the progress made in the implementation of the plan.
(d) The Board shall adopt rules covering:
(1) The qualifications of and standards for certification of teachers, teacher assistants, speech clinicians, school psychologists, and others involved in the education and training of children with special needs;
(2) Minimum standards for the individualized educational program for all children with special needs other than for the pregnant children, and for the educational program for the pregnant children, who receive special education and related services; and
(3) Any other rules as may be necessary or appropriate for carrying out the purposes of this Article. Representatives from the Departments of Health and Human Services, Correction, and Juvenile Justice and Delinquency Prevention shall be involved in the development of the standards outlined under this subsection.
(e) On or before October 15, each local educational agency shall report annually to the Board the extent to which it is then providing special education for children with special needs. The annual report also shall detail the means by which the local educational agency proposes to secure full compliance with the policy of this Article, including the following:
(1) A statement of the extent to which the required education and services will be provided directly by the agency;
(2) A statement of the extent to which standards in force pursuant to G.S. 115C‑110(b)(5) and (d)(2) are being met by the agency; and
(3) The means by which the agency will contract to provide, at levels meeting standards in force pursuant to G.S. 115C‑110(b)(5) and (d)(2), all special education and related services not provided directly by it or by the State.
(f) After submitting the report required by subsection (e), the local educational agency also shall submit such supplemental and additional reports as the Board may require to keep the local educational agency's plan current.
(g) By rule, the Board shall prescribe due dates not later than October 15 of each year, and all other necessary or appropriate matters relating to these annual and supplemental and additional reports.
(h) The annual report shall be a two‑year plan for providing appropriate special education and related services to children with special needs. The agency shall submit the plan to the Board for its review, approval, modification, or disapproval. Unless thereafter modified with approval of the Board, the plan shall be adhered to by the local educational agency. The procedure for approving, disapproving, establishing, and enforcing the plan shall be the same as that set forth for the annual plan. The long‑range plan shall include such provisions as may be appropriate for the following, without limitation:
(1) Establishment of classes, other programs of instruction, curricula, facilities, equipment, and special services for children with special needs; and
(2) Utilization and professional development of teachers and other personnel working with children with special needs.
(i) Each local educational agency shall provide free appropriate special education and related services in accordance with the provisions of this Article for all children with special needs who are residents of, or whose parents or guardians are residents of, the agency's district, beginning with children aged five. No matriculation or tuition fees or other fees or charges shall be required or asked of children with special needs or their parents or guardians except those fees or charges as are required uniformly of all public school pupils. The provision of free appropriate special education within the facilities of the Department of Health and Human Services and the Department of Juvenile Justice and Delinquency Prevention shall not prevent that department from charging for other services or treatment.
(j) The Board shall require an annual census of children with special needs, subdivided for "identified" and "suspected" children with special needs, to be taken in each school year. Suspected children are those in the formal process of being identified, evaluated or diagnosed as children with special needs. The census shall be conducted annually and shall be completed not later than October 15, and shall be submitted to the Governor and General Assembly and be made available to the public no later than January 15 annually.
In taking the census, the Board shall require the cooperation, participation, and assistance of all local educational agencies and all other State and local governmental departments and agencies providing or required to provide special education services to children with special needs, and those departments and agencies shall cooperate and participate with and assist the Board in conducting the census.
The census shall include the number of children identified and suspected with special needs, their age, the nature of their disability, their county or city of residence, their local school administrative unit residence, whether they are being provided special educational or related services and if so by what department or agency, whether they are not being provided special education or related services, the identity of each department or agency having children with special needs in its care, custody, management, jurisdiction, control, or programs, the number of children with special needs being served by each department or agency, and such other information or data as the Board shall require. The census shall be of children with special needs between the ages of three and 21, inclusive.
(k) The Department shall monitor the effectiveness of individualized education programs in meeting the educational needs of all children with special needs other than pregnant children, and of educational programs in meeting the educational needs of the pregnant children.
(l) The Board shall provide for procedures assuring that in carrying out the requirements of this Article procedures are established for consultation with individuals involved in or concerned with the education of children with special needs, including parents or guardians of such children, and there are public hearings, adequate notice of such hearings, and an opportunity for comment available to the general public prior to the adoption of the policies, procedures, and rules or regulations required by this Article.
(m) Children with special needs shall be educated in the least restrictive appropriate setting, as defined by the State Board of Education.
(n) Each interpreter or transliterator employed by a local educational agency, to provide services to hearing‑impaired students, must annually complete 15 hours of job‑related training that has been approved by the local educational agency.
(o) Notwithstanding any policy or rule adopted by the State Board of Education, if a local school administrative unit provides services to a student pursuant to a current individual education plan from another state while a determination is being made regarding the student's eligibility for services as a child with special needs in North Carolina, the local school administrative unit is entitled to receive State funding to serve the student while the determination is being made. If the student is later determined not to qualify for services in North Carolina, the local school administrative unit shall not be required to repay State funds received while the determination is being made. (1977, c. 927, s. 1; 1981, c. 423, s. 1; 1983, c. 247, ss. 3, 4; 1989, c. 585, s. 3; 1996, 2nd Ex. Sess., c. 18, ss. 18.24(c), (d); 1997‑443, s. 11A.118(a); 1998‑202, s. 4(g); 1999‑117, s. 1; 2000‑137, s. 4(j); 2002‑182, s. 6; 2003‑56, s. 3.)
Part 2. Nondiscrimination in Education.
§ 115C‑111. Free appropriate education for all children with special needs.
No child with special needs between the ages specified by G.S. 115C‑109 shall be denied a free appropriate public education or be prevented from attending the public schools of the local educational agency in which he or his parents or legal guardian resides or from which he receives services or from attending any other public program of free appropriate public education because he is a child with special needs. If it appears that a child should receive a program of free appropriate public education in a program operated by or under the supervision of the Department of Health and Human Services or the Department of Juvenile Justice and Delinquency Prevention, the local educational agency shall confer with the appropriate Department of Health and Human Services or Department of Juvenile Justice and Delinquency Prevention staff for their participation and determination of the appropriateness of placement in said program and development of the child's individualized education program. The individualized education program may then be challenged under the due process provisions of G.S. 115C‑116. Every child with special needs shall be entitled to attend these nonresidential schools or programs and receive from them free appropriate public education. (1977, c. 927, s. 1; 1981, c. 423, s. 1; 1997‑443, s. 11A.118(a); 1998‑202, s. 4(h); 2000‑137, s. 4(k).)
§ 115C‑112: Repealed by Session Laws 1995 (Regular Session, 1996), c. 716, s. 20.
§ 115C‑113. Diagnosis and evaluation; individualized education program.
(a) Before taking any action described in subsection (b), below, each local educational agency shall cause a multi‑disciplinary diagnosis and evaluation to be made of the child. The State Board of Education shall establish special, simplified procedures for the diagnosis and evaluation of the pregnant child, which procedures shall focus on the particular needs of the pregnant child and shall exclude those procedures which are not pertinent to the pregnant. The local educational agency shall use the diagnosis and evaluation to determine if the child has special needs, diagnose and evaluate those needs, propose special education programs to meet those needs, and provide or arrange to provide such programs. A multi‑disciplinary diagnosis and evaluation is one which includes, without limitation, medical (if necessary), psychological (if necessary) and educational assessments and recommendations; such an evaluation may include any other assessments as the Board may, by rule or regulation, require.
All testing and evaluation materials and procedures utilized for the purposes of evaluation and placement of children with special needs will be selected and administered so as not to be racially or culturally discriminatory. Such materials or procedures shall be provided and administered in the child's native language or mode of communication, unless it clearly is not feasible to do so, and no single procedure shall be the sole criterion for determining an appropriate educational program for a child.
(b) An initial multi‑disciplinary diagnosis and evaluation based on rules developed by the Board shall be made before any such child is placed in a special education program, removed from such a program and placed in a regular school program, transferred from one type of special education program to another, removed from a school program for placement in a nonschool program, or otherwise tracked, classified, or treated as a child with special needs.
(c) Referral of any child shall be in writing, signed by the person requesting diagnosis and evaluation, setting forth the reasons for the request; it shall be sent or delivered to one of the following: the child's teacher, the principal of the school to which the child is, has been or will be assigned, or the superintendent of the affected local educational agency or his designee. The local educational agency shall send a written notice to the parent or guardian describing the evaluation procedure to be followed and requesting consent for the evaluation. If the parents or guardian consent, the diagnosis and evaluation may be undertaken; if they do not, the local educational agency may obtain a due process hearing pursuant to G.S. 115C‑116 on the failure of the parent or guardian to consent.
The local educational agency shall provide or cause to be provided, as soon as possible after receiving consent for evaluation, a diagnosis and evaluation appropriate to the needs of the child unless the parents or guardian have objected to such evaluation. If at the conclusion of the evaluation, the child is determined to be a child with special needs, the local educational agency shall within 30 calendar days convene an individualized education program committee. The purpose of the meeting shall be to propose the special education and related services for the child. An interpretation of the multi‑disciplinary diagnosis and evaluation will be made to the parent or guardian during the meeting. The proposal shall set forth the specific benefits expected from such a program, a method for monitoring the benefits, and a statement regarding conditions which will be considered indicative of the child's readiness for participation in regular classes.
After an initial referral is made, the provision of special education and related services shall be implemented within 90 calendar days to eligible students, unless the parents or guardian refuse to consent to evaluation or placement or the parent or local educational agency requests a due process hearing.
Within 12 months after placement in a special education program, and at least annually thereafter, those people responsible for developing the child's individualized education program, or educational program for the pregnant, shall review the child's progress and, on the basis of previously stated expected benefits, decide whether to continue or discontinue the placement or program. If the review indicates that the placement or program does not benefit the child, the appropriate reassignment or change in the prescribed program shall be recommended to the parents or guardian.
The local educational agency shall keep a complete written record of all diagnostic and evaluation procedures attempted, their results, the conclusions reached, and the proposals made.
(d) The local educational agency shall furnish the results, findings, and proposals, as described in the individualized education program based on the diagnosis and evaluation to the parents or guardian in writing in the parents' or guardian's native language or by their dominant mode of communication, prior to the parent or guardian giving consent for initial placement in special education and related services. Prior notice will be given to the parents or guardian by the local educational agency before any change in placement.
A reevaluation must be completed at least every three years to determine the appropriateness of the child's continuing to receive special education and related services.
(e) Each local educational agency shall make and keep current a list of all children evaluated and diagnosed pursuant to this section who are found to have special needs and of all children who are receiving home, hospital, institutional or other special education services, including those being educated within the regular classroom setting or in other special education programs.
(f) Each local educational agency shall prepare individualized educational programs for all children found to be children with special needs other than the pregnant children, and educational programs prescribed in subsection (h) of this section for the pregnant children. The individualized educational program shall be developed in conformity with Public Law 94‑142 and the implementing regulations issued by the United States Department of Education and shall be implemented in conformity with timeliness set by that Department. The term "individualized educational program" means a written statement for each such child developed in any meeting by a representative of the local educational agency who shall be qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of such children, the teacher, the parents or guardian of such child, and, whenever appropriate, such child, which statement shall be based on rules developed by the Board. Each local educational agency shall establish, or revise, whichever is appropriate, the individualized educational program of each child with special needs each school year and will then review and, if appropriate revise, its provisions periodically, but not less than annually. In the facilities and programs of the Department of Health and Human Services and the Department of Juvenile Justice and Delinquency Prevention, the individualized educational program shall be planned in collaboration with those other individuals responsible for the design of the total treatment or habilitation plan or both; the resulting educational, treatment, and habilitation plans shall be coordinated, integrated, and internally consistent.
(g) Repealed by Session Laws 1996, Second Extra Session, c. 18, s. 18.24(e).
(h) Each local educational agency shall prepare educational programs for the pregnant children. The State Board of Education shall promulgate rules and regulations specifically to address the preparation of these educational programs, which rules and regulations shall include specific standards for ensuring that the individual educational needs of each child are addressed. (1977, c. 927, s. 1; 1981, c. 423, s. 1; 1983, c. 247, s. 4; 1989, c. 388; 1991, c. 142, s. 1; c. 761, s. 35; 1996, 2nd Ex. Sess., c. 18, s. 18.24(e); 1997‑443, s. 11A.118(a); 1998‑202, s. 4(i); 2000‑137, s. 4(l).)
§ 115C‑113.1. Surrogate parents.
In the case of a child whose parent or guardian is unknown, whose whereabouts cannot be determined after reasonable investigation, or who is a ward of the State, the local educational agency shall appoint a surrogate parent for the child. The surrogate parent shall be appointed from a group of persons approved by the Superintendent of Public Instruction, the Secretary of Health and Human Services, and the Secretary of Juvenile Justice and Delinquency Prevention, but in no case shall the person appointed be an employee of the local educational agency or directly involved in the education or care of the child. The Superintendent shall ensure that local educational agencies appoint a surrogate parent for every child in need of a surrogate parent. (1987 (Reg. Sess., 1988), c. 1079, s. 2; 1997‑443, s. 11A.118(a); 1998‑202, s. 4(j); 2000‑137, s. 4(m).)
§ 115C‑114. Records; privacy and expunction.
(a) No local educational agency may release to any persons other than the eligible student, his parents or guardian or any surrogate parent any records, data or information on any child with special needs except (i) as permitted by the prior written consent of the student, his parents or guardian or surrogate parent, (ii) as required or permitted by federal law, (iii) school officials within the local education agency who have legitimate educational interest, (iv) school officials of other local educational agencies in which the student intends to enroll, or (v) certain authorized representatives of the State and federal government who are determining eligibility of the child for aid, as provided under Public Law 93‑380 or other federal law.
(b) The eligible student, his parents or guardian or surrogate parent shall have the right to read, inspect and copy all and any records, data and information maintained by a local educational agency with respect to the student, and, upon their request, shall be entitled to have those records, data and information fully explained, interpreted and analyzed for them by the staff of the agency. The parent or guardian or surrogate parent may demand that his request must be honored within not more than 45 days after it is made.
(c) The student, his parents or guardian or surrogate parent shall have the right to add to the records, data and information written explanations or clarifications thereof, and to cause the expunction of incorrect, outdated, misleading or irrelevant entries. If a local educational agency refuses to expunge incorrect, outdated, misleading or irrelevant entries after having been asked to do so by the parent, such person may obtain a due process hearing, under G.S. 115C‑116, on the agency's refusal, and must request the hearing within 30 days after the agency's refusal. (1977, c. 927, s. 1; 1981, c. 423, s. 1.)
§ 115C‑115. Placements in private schools, out‑of‑state schools and schools in other local educational agencies.
The board shall adopt rules and regulations to assure that:
(1) There be no cost to the parents or guardian for the placement of a child in a private school, out‑of‑state school or a school in another local education agency if the child was so placed by the Board or by the appropriate local educational agency as the means of carrying out the requirement of this Article or any other applicable law requiring the provision of special education and related services to children within the State.
(2) No child shall be placed by the Board or by the local educational agency in a private or out‑of‑state school unless the Board has determined that the school meets standards that apply to State and local educational agencies and that the child so placed will have all the rights he would have if served by a State or local educational agency.
(3) If the placement of the child in a private school, out‑of‑state school or a school in another local educational agency determined by the Superintendent of Public Instruction to be the most cost‑effective way to provide an appropriate education to that child and the child is not currently being educated by the Department of Health and Human Services, the Department of Juvenile Justice and Delinquency Prevention, or the Department of Correction, the State will bear a portion of the cost of the placement of the child. The local school administrative unit shall pay an amount equal to what it receives per pupil from the State Public School Fund and from other State and federal funds for children with special needs for that child. The State shall pay the full cost of any remainder up to a maximum of fifty percent (50%) of the total cost. (1977, c. 927, s. 1; 1979, 2nd Sess., c. 1299, s. 2; 1981, c. 423, s. 1; 1983, c. 768, s. 7; 1987 (Reg. Sess., 1988), c. 1079, s. 3; 1997‑443, s. 11A.118(a); 1998‑202, s. 4(k); 2000‑137, s. 4(n).)
Part 3. Appeals.
§ 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. – It is the policy of this State to encourage local educational agencies and parents, guardians, surrogate parents, custodians, and eligible students to seek informal resolution of disputes or disagreements regarding the identification of children with special needs and the provision of special education and related services before filing a request for a formal administrative review of the matter. To that end, the following provisions apply to the mediation of these disputes:
(1) Purpose. – The purpose of mediation is to clarify the concerns of the parents and to resolve disputes.
(2) Definitions. – As used in this subsection, the following terms have the following meanings:
a. "Dispute" means a disagreement between the parties that is subject to review under subsection (c) of this section.
b. "Mediation" means an informal process conducted by a mediator with the objective of helping parties voluntarily settle their dispute.
c. "Mediator" means a neutral person who acts to encourage and facilitate a resolution of a dispute.
d. "Parents" means parents, guardians, surrogate parents, custodians, and eligible students.
e. "Parties" means the local educational agency and the parents.
(3) Nonadversarial. – The mediation shall be informal and nonadversarial as provided in G.S. 150B‑22.
(4) Rules of procedure. – The mediator is encouraged to follow applicable procedures provided in G.S. 7A‑38.1, G.S. 7A‑38.2, and applicable rules adopted by the Supreme Court under G.S. 7A‑38.1. The mediator may establish other procedures to facilitate an informal resolution of the dispute. The mediator shall not render a decision or judgment as to the merits of the dispute.
(5) Request for mediation. – Before a request for formal administrative review is filed, mediation shall commence upon the request of either party, so long as the other party consents.
(6) Selection of mediator. – The parties shall agree to the selection of the mediator. The Exceptional Children Division of the Department of Public Instruction shall maintain a list of mediators who are certified or trained in resolving disputes under this subsection.
(7) Notice of right to mediation. – The local educational agency shall notify parents of their right to request mediation under this subsection.
(8) Time periods tolled. – Notwithstanding G.S. 150B‑23, time periods related to the filing of a formal administrative review or the taking of any other action with respect to the dispute, including any applicable statutes of limitations, are tolled upon the filing of a request for mediation under this subsection until the mediation is completed or the mediator declares an impasse.
(9) Good cause for continuance. – A good faith effort by both parties to mediate the dispute is presumed to constitute good cause for a continuance so long as the administrative law judge does not find that the time delay for mediation would likely result in irreparable harm to one of the parties or to the child.
(10) Inadmissibility of negotiations. – Evidence of statements made and conduct occurring in a mediation shall not be subject to discovery and shall be inadmissible in any proceeding in the action or other actions on the same claim. However, no evidence otherwise discoverable shall be inadmissible merely because it is presented or discussed in a mediation. Mediators shall not be compelled in any civil proceeding to testify or produce evidence concerning statements made and conduct occurring in a mediation.
(11) Mediator's fees. – If mediation is requested before a request for formal administrative review is filed, the local educational agency shall pay the mediator's fees for one mediation session. If resolution is not reached in that session, the parties must agree to continue the mediation. The local educational agency shall pay any mediator fees for subsequent mediation sessions unless the parties agree otherwise.
(12) Mediated settlement conference after a request for administrative review. – In addition to mediation as provided by this subsection, the parties may participate in a mediated settlement conference as provided by G.S. 150B‑23.1.
(13) Promotion of other settlement procedures. – The parties may agree to use other dispute resolution methods or to use mediation in other circumstances, including after a request for formal administrative review is filed, to the extent permitted under State and federal law.
(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. – The issues for review shall be limited to those set forth in subsection (c).
(f) Venue of Hearing. – 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. – The hearing shall be closed to the public unless the parent, guardian, or surrogate parent, requests in writing that the hearing be open to the public.
(h) Decision of the Administrative 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) 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 shall 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. The Review Officer may issue subpoenas upon his own motion or upon a written request.
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 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 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 when it is determined that the local educational agency did not offer or provide the child with 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) Right to File Civil Action. – Any party aggrieved by the decision of the Review Officer may institute a civil action in State court within 30 days after receipt of the notice of the decision or in federal court as provided in 20 U.S.C. § 1415.
(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. (1973, c. 1293, s. 10; 1975, c. 151, ss. 1, 2; c. 563, ss. 8, 9; 1975, 2nd Sess., c. 983, ss. 79, 80; 1981, c. 423, s. 1; c. 497, ss. 1, 2; 1983, c. 247, s. 6; 1985, c. 412, s. 2; 1987, c. 827, s. 1; 1987 (Reg. Sess., 1988), c. 1079, s. 1; 1989, c. 362; 1989 (Reg. Sess., 1990), c. 1058; 1991, c. 540, s. 1; 1991 (Reg. Sess., 1992), c. 1030, s. 27; 1993, c. 270, s. 1; 1997‑115, s. 1.)
Part 4. Regional Educational Training Center.
§§ 115C‑117 through 115C‑120: Repealed by Session Laws 1997‑18, s. 16.
Part 5. Council on Educational Services for Exceptional Children.
§ 115C‑121. Establishment; organization; powers and duties.
(a) There is hereby established an Advisory Council to the State Board of Education to be called the Council on Educational Services for Exceptional Children.
(b) The Council shall consist of 23 members to be appointed as follows: four ex officio members; one individual with a disability and one representative of a private school appointed by the Governor; one member of the Senate and one parent of a child with a disability appointed by the President Pro Tempore; one member of the House of Representatives and one parent of a child with a disability appointed by the Speaker of the House; and 13 members appointed by the State Board of Education. The State Board shall appoint members who represent individuals with disabilities, teachers, local school administrative units, institutions of higher education that prepare special education and related services personnel, administrators of programs for children with disabilities, charter schools, parents of children with disabilities, and vocational, community, or business organizations concerned with the provision of transition services. The majority of members on the Council shall be individuals with disabilities or parents of children with disabilities. The Council shall designate a chairperson from among its members. The designation of the chairperson is subject to the approval of the State Board of Education. The Board shall adopt rules to carry out this subsection.
Ex officio members of the Council shall be the following:
(1) The Secretary of Health and Human Services or the Secretary's designee.
(2) The Secretary of Juvenile Justice and Delinquency Prevention or the Secretary's designee.
(3) The Secretary of Correction or the Secretary's designee.
(4) The Superintendent of Public Instruction or the Superintendent's designee.
The term of appointment for all members except those appointed by the State Board of Education is two years. The term for members appointed by the State Board of Education is four years. No person shall serve more than two consecutive four‑year terms.
Each Council member shall serve without pay, but shall receive travel allowances and per diem in the same amount provided for members of the North Carolina General Assembly.
(c) The Council shall meet in offices provided by the Department of Public Instruction on a date to be agreed upon by the members of the Council from meeting to meeting. The Council shall meet no less than once every three months. The Department of Public Instruction shall provide the necessary secretarial and clerical staff and supplies to accomplish the objectives of the Council.
(d) The Council shall:
(1) Advise the Board with respect to unmet needs within the State in the education of children with disabilities.
(2) Comment publicly on rules, policies, and procedures proposed by the Board regarding the education of children with disabilities.
(3) Assist the Board in developing evaluations and reporting on data to the Secretary of Education under the federal Individuals with Disabilities Education Act (IDEA), as amended.
(4) Advise the State Board in developing corrective action plans to address findings identified in federal monitoring reports required under the federal Individuals with Disabilities Education Act (IDEA), as amended.
(5) Advise the State Board in developing and implementing policies relating to the coordination of services for children with disabilities.
(6) Carry out any other responsibility as designated by federal law or the State Board. (1973, c. 1079, ss. 1‑4; 1977, c. 646, ss. 1‑5, 1981, c. 423, s. 1; 1991, c. 739, s. 12; 1991 (Reg. Sess., 1992), c. 1038, s. 13; 1997‑443, s. 11A.118(a); 1998‑202, s. 4(l); 2000‑137, s. 4(o); 2001‑424, s. 28.29(a).)
Part 6. Range of Services Available.
§ 115C‑122. Early childhood development program; evaluation and placement of children.
The General Assembly of North Carolina declares that the public policy of North Carolina is defined as follows to carry out the policies stated in G.S. 115C‑106:
(1) The State shall provide for a comprehensive early childhood development program by emphasizing preventative and remedial measures designed to provide the services which will enable children to develop to the maximum level their physical, mental, social, and emotional potentials and to strengthen the role of the family as the first and most fundamental influence on child development. The General Assembly finds that the complexity of early childhood development precludes the enactment of legislation which is of a sufficiently comprehensive nature to encompass all possible implications. The Departments of Public Instruction and Health and Human Services shall, therefore, jointly develop an early childhood development program plan with flexibility sufficient to meet the State's policy as set forth in this subdivision. Said plan shall provide for the operation of a statewide early childhood development program no later than June 30, 1983.
(2) The State requires a system of educational opportunities for all children with special needs and requires the identification and evaluation of the needs of children and the adequacy of various education programs before placement of children, and shall provide for periodic evaluation of the benefits of programs to the individual child and the nature of the child's needs thereafter.
(3) The State shall prevent denial of equal educational and service opportunity on the basis of national origin, sex, economic status, race, religion, and physical, mental, social or emotional handicap in the provision of services to any child. Each local school administrative unit shall develop program plans to meet the educational requirements of children with special needs and each local human services agency shall develop program plans to meet the human service requirements of children with special needs in accordance with program standards and in a planning format as shall be prescribed by the State Board of Education and the Department of Health and Human Services respectively.
The General Assembly intends that the educational program and human service program requirements of Session Laws 1973, Chapter 1293, shall be realized no later than June 30, 1982. The General Assembly further intends that currently imposed barriers to educational and human service opportunities for children with special needs by reason of a single standardized test, income, federal regulations, conflicting statutes, or any other barriers are hereby abrogated; except that with respect to barriers caused by reason of income, it shall be permissible for the State or any local education agency or local human services agency to charge fees for special services rendered, or special materials furnished to a child with special needs, his parents, guardian or persons standing in loco parentis unless the imposition of such fees would prevent or substantially deter the child, his parents, guardian, or persons standing in loco parentis from availing themselves of or receiving such services or materials.
(4) It is recognized that children have a variety of characteristics and needs, all of which must be considered if the potential of each child is to be realized; that in order to accomplish this the State must develop a full range of service and education programs, and that a program must actually benefit a child or be designed to benefit a particular child in order to provide such child with appropriate educational and service opportunities. The General Assembly requires that all programs employ least restrictive alternatives as shall be defined by the Departments of Public Instruction and Health and Human Services. (1973, c. 1351, s. 1; 1981, c. 423, s. 1; 1997‑443, ss. 11A.49A, 11A.118(a).)
Part 7. State Schools for Hearing‑impaired Children.
§§ 115C‑123 through 115C‑126.1: Recodified as §§ 143B‑216.40 through 143B‑216.44 by Session Laws 1997‑18, s. 12.
Part 8. State School for Sight‑impaired Children.
§§ 115C‑127, 115C‑128: Recodified as §§ 143B‑164.10 and 143B‑164.13.
§ 115C‑129. Reserved for future codification purposes.
§§ 115C‑130 through 115C‑133: Recodified as §§ 143B‑164.14 through 143B‑164.17.
Part 9. Central Orphanage of North Carolina.
§§ 115C‑134 through 115C‑138: Repealed by Session Laws 1997‑18, s. 14.
Part 10. State and Local Relationships.
§ 115C‑139. Interlocal cooperation.
(a) The Board, any two or more local educational agencies and any such agency and any State department, agency, or division having responsibility for the education, treatment or habilitation of children with special needs are authorized to enter into interlocal cooperation undertakings pursuant to the provisions of Chapter 160A, Article 20, Part 1 of the General Statutes or into undertakings with a State agency such as the Departments of Public Instruction, Health and Human Services, Juvenile Justice and Delinquency Prevention, or Correction, or their divisions, agencies, or units, for the purpose of providing for the special education and related services, treatment or habilitation of such children within the jurisdiction of the agency or unit, and shall do so when it itself is unable to provide the appropriate public special education or related services for these children. In entering into such undertakings, the local agency and State department, agency, or division shall also contract to provide the special education or related services that are most educationally appropriate to the children with special needs for whose benefit the undertaking is made, and provide these services by or in the local agency unit or State department, agency, or division located in the place most convenient to these children.
(b) Local educational agencies may establish special education and related programs for children with special needs aged birth through four and 19 through 21 inclusive. (1977, c. 927, s. 1; 1981, c. 423, s. 1; 1997‑443, s. 11A.118(a); 1998‑202, s. 4(m); 2000‑137, s. 4(p).)
§ 115C‑140. Contracts with private service‑providers.
State departments, agencies and divisions and local educational agencies furnishing special education and related services to children with special needs may contract with private special education facilities or service providers to furnish such services as the public providers are unable to furnish. No contract between any public and private service provider shall be effective until it has received the prior written approval of the Board. The Board shall not withhold its approval of the contract unless the private facilities and providers do not meet the Board's standards established pursuant to G.S. 115C‑110(a), (b)(5), and (d)(2). (1977, c. 927, s. 1; 1981, c. 423, s. 1.)
§ 115C‑140.1. Cost of education of children in group homes, foster homes, etc.
(a) Notwithstanding the provisions of any other statute and without regard for the place of domicile of a parent or guardian, the cost of a free appropriate public education for a child with disabilities who is placed in or assigned to a group home or foster home, pursuant to State and federal law, shall be borne by the local board of education in which the group home or foster home is located. However, the local school administrative unit in which a child is domiciled shall transfer to the local school administrative unit in which the institution is located an amount equal to the actual local cost in excess of State and federal funding required to educate that child in the local school administrative unit for the fiscal year after all State and federal funding has been exhausted.
(b) The State Board of Education shall use State and federal funds appropriated for children with special needs to establish a reserve fund to reimburse local boards of education for the education costs of children assigned to group homes or other facilities as provided in subsection (a) of this section. Local school administrative units may submit a Special State Reserve Program application for foster home or group home children whose special education and related services costs exceed the per child group home allocation.
(c) The Department shall review the current cost of children with disabilities served in the local school administrative units with group homes or foster homes to determine the actual cost of services. (1981, c. 859, s. 29.7; 2002‑164, s. 2; 2003‑294, s. 1.)
Part 11. Rules and Regulations.
§ 115C‑141. Board rules and regulations.
The Board shall adopt rules and regulations for the administration of this Article. The Board shall provide technical assistance to the various concerned agencies at their request. (1977, c. 927, s. 1; 1981, c. 423, s. 1.)
Part 12. Nonreduction Provision.
§ 115C‑142. Nonreduction.
Notwithstanding any of the other provisions of this Article, it is the intent of the General Assembly that funds appropriated by it for the operation of programs of special education and related services by local school administrative units not be reduced; rather, that adequate funding be made available to meet the special educational and related services needs of children with special needs, without regard to which State or local department, agency, or unit has the child in its care, custody, control, or program. (1977, c. 927, s. 1; 1981, c. 423, s. 1.)
Part 13. Budget Analysis and Departmental Funding.
§ 115C‑143. Repealed by Session Laws 1981 (Regular Session, 1982), c. 1282, s. 29.
§ 115C‑144: Repealed by Session Laws 1997‑18, s. 7.
§ 115C‑145. Allocation of federal funds.
At such time as any federal moneys for the special education and related services for children with special needs are made available, these funds shall be allocated according to a formula designed by the Board not inconsistent with federal laws and regulations. Such formula shall insure equitable distribution of resources based upon the number of children with special needs served by the respective agencies, and shall be implemented as funds are made available from federal and State appropriations. (1977, c. 927, s. 1; 1981, c. 423, s. 1.)
§ 115C‑146. Reserved for future codification purposes.
Part 14. Handicapped Children, Ages Three to Five.
§ 115C‑146.1. Definitions.
The term "preschool handicapped children" means all handicapped children:
(1) Who have reached their third birthday and whose parents have requested services from the public schools, which services shall start no later than the beginning of the school year immediately following the children's third birthday;
(2) Who are not eligible to enroll in public kindergarten; and
(3) Who, because of permanent or temporary mental, physical, or emotional handicaps, need special education and related services in order to prepare them to benefit from the educational programs provided by the public schools, beginning with kindergarten. This term includes children who are mentally retarded, learning disabled, seriously emotionally disturbed, autistic, cerebral palsied, orthopedically impaired, hearing impaired, speech impaired, blind or visually impaired, multiply handicapped, or other health impaired. All evaluations performed pursuant to this Part shall be appropriate to the individual child's age and development. (1989 (Reg. Sess., 1990), c. 1003, s. 5.)
§ 115C‑146.2. Entitlement to services.
Preschool handicapped children are entitled, at no cost to their parents or guardians, to individualized programs specifically designed to meet their unique needs for special education and related services. (1989 (Reg. Sess., 1990), c. 1003, s. 5.)
§ 115C‑146.3. Obligation to provide services.
(a) The General Assembly finds:
(1) That preschool handicapped children will benefit from the special education and related services required by this Part;
(2) That the General Assembly has evaluated the known needs of the State and has endeavored to satisfy those needs in comparison to the social and economic problems of the State;
(3) That the funds appropriated to serve these preschool handicapped children are a reasonable amount to provide such children with special education and related services; and
(4) That, therefore, (i) State funds appropriated to implement this Part are the only State funds for public schools that may be used to provide special education and related services to preschool handicapped children; and (ii) preschool handicapped children will continue to be served by all other State funds they are otherwise entitled to.
(b) The State Board of Education shall cause local school administrative units to make available special education and related services to all preschool handicapped children whose parents or guardians request these services.
(c) State funds appropriated to implement the provisions of this Part shall be used to supplement and not supplant existing federal, State, and local funding for the public schools.
(d) Related services provided under this Part shall be provided by qualified services providers. The term "qualified services provider" means a person who meets State standards for licensure or State Board of Education standards for certification for a specific profession or discipline.
To the extent that the State Board of Education standards include provisions for certification that are less than the standard for certification or licensure for a specific profession, the Department of Public Instruction may certify individuals on a temporary or provisional basis, provided that the State Board of Education shall establish a comprehensive plan and reasonable time lines to ensure that only professionals who meet the appropriate standard for licensure or certification may be employed in the future. (1989 (Reg. Sess., 1990), c. 1003, s. 5; 1993, c. 522, s. 2.)
§ 115C‑146.4. Rules.
The State Board of Education shall adopt rules implementing this Part, including rules necessary in order to receive federal funding pursuant to Part B of the Education of the Handicapped Act, 20 U.S.C. § 1400 et seq. These rules shall include a provision that, where a local education agency finds that appropriate services are available from other public agencies or private organizations, that local education agency shall, in accordance with G.S. 115C‑149, contract for those services rather than provide them directly. These rules shall also include a provision that, where a local education agency finds that a child is already receiving appropriate services, that local education agency shall continue those services as long as appropriate. (1989 (Reg. Sess., 1990), c. 1003, s. 5.)
§ 115C‑147. Reserved for future codification purposes.
§ 115C‑148. Reserved for future codification purposes.
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