US Laws, Codes, Statutes & Cases

Chapter 343 — Special Education Services

 

2005 EDITION

 

 

SPECIAL EDUCATION SERVICES

 

EDUCATION AND CULTURE

 

GENERAL PROVISIONS

 

343.035     Definitions

 

343.041     Supervision of programs for children with disabilities by Superintendent of Public Instruction; board rules; complaint procedure; staff training; public agency cooperative agreements

 

343.045     Criteria for development and operation of special programs; board rules

 

343.055     Administration of programs by Superintendent of Public Instruction; board rules; powers of board

 

343.065     Employment of personnel to supervise types of services for special programs; duties; distribution of training materials

 

343.085     Tuition prohibited

 

SPECIAL EDUCATION PROCEDURES

 

343.146     Determination of eligibility for special education services; evaluation; reevaluation; medical or vision examination; health assessment

 

343.151     Individualized education program; contents; procedures; review; revision; rules of State Board of Education; standard forms; alternate forms

 

343.155     Procedures to protect rights of children with disabilities; board rules; content of rules

 

343.157     Duty of school districts to identify, locate and evaluate resident children in need of special education or early intervention

 

343.159     Requirements for written notice to parents of child with disability; contents of notice; language or mode of communication of parent

 

343.164     Parental consent requirements for preplacement evaluation, placement or re- evaluation; exceptions

 

343.165     Circumstances requiring hearing; deadline for requesting hearing; hearing rules; expedited hearing; independent hearing officer

 

343.167     Result of hearing; effect of procedural violations; deadline for decision; cost of hearing; rules

 

343.173     Parental right to examine district records; independent evaluation; hearing; costs

 

343.175     Civil action following hearing; deadline; attorney fees; limitations; reduction of fees

 

343.177     Educational placement during administrative or judicial proceedings; circumstances where placement may be changed

 

343.181     Transfer of special education rights to child with disability upon age of majority; notice

 

343.183     Effect of school district failure to comply; withholding funds; expense of independent evaluation

 

343.193     Duty to report disabled child not enrolled in special education program; effect of report

 

ADMINISTRATION OF SPECIAL EDUCATION

 

343.221     Special education required; district projected activities and cost statement; permitted contracts for services

 

343.223     Assistive technology devices or services required; rules to define devices and services

 

343.224     School district liability for expense of noneducational care

 

343.236     State reimbursed or operated local, county or regional programs; rules

 

343.239     Annual billing for students served by or enrolled in certain programs; calculation of amount of billing; notice; payment deadline; distribution of moneys

 

343.243     Recovery of amount from State School Fund for children enrolled in certain programs; calculation of amount recovered; disposition of amount recovered

 

343.247     Special Education Account

 

343.261     Instruction of certain hospitalized children; rules

 

343.285     Use of state funds to match federal funds

 

343.287     State Advisory Council for Special Education; members; duties; expenses

 

343.293     Local advisory councils on special education; duties

 

343.295     Document of successful completion

 

TALENTED AND GIFTED CHILDREN

 

343.391     Purpose of ORS 343.391 to 343.413

 

343.395     Definitions for ORS 343.391 to 343.413

 

343.396     Nature of programs

 

343.397     Plan of instruction for talented and gifted children

 

343.399     State aid to local districts; criteria

 

343.401     Use of funds appropriated for ORS 343.391 to 343.413

 

343.404     Funding for program development

 

343.407     Identification of talented and gifted students

 

343.409     Talented and gifted programs required

 

343.411     When identification and programs for certain children required or optional; state guidelines

 

343.413     Short title

 

SERVICES TO PRESCHOOL CHILDREN WITH DISABILITIES

 

343.455     Early childhood special education provided by prekindergartens; service requirement

 

343.465     Policy on services to preschool children with disabilities; agency coordination of services

 

Note          Effect of unavailability of federal funds on programs for preschool children--1993 c.409 §8

 

343.475     Program of early childhood special education and early intervention services; service areas; primary contractor; voluntary local early childhood system plan; residency; sanctions

 

343.485     Rules relating to confidentiality of records

 

343.495     Operation of early childhood special education or early intervention programs by department

 

343.499     State Interagency Coordinating Council; appointment; member qualifications; duties; terms; use of federal funds; department’s duties; meetings; conflicts

 

343.507     Local early intervention interagency advisory council; members; officers

 

343.511     Interagency agreements to provide services; contents

 

343.513     Eligibility criteria

 

343.517     Parent-initiated referral to determine eligibility

 

343.521     Individualized family service plan; rules for content, development, review and revision of plan; forms

 

343.523     Service coordination requirements for early intervention and early childhood special education

 

343.527     Requirements for written notice to parents of preschool child with disability; contents of notice; language or mode of communication of parent

 

343.531     Procedural safeguards

 

343.533     Transportation service to preschool children with disabilities; cost

 

343.534     Allocation of state funds to approved providers

 

APPROPRIATE LEARNING MEDIA FOR BLIND STUDENTS (BRAILLE)

 

343.565     Definitions for ORS 343.565 to 343.595

 

343.575     Proficiency in reading and writing for blind student; use of Braille

 

343.585     Instruction in Braille; individualized education program requirements

 

343.595     Requirement that textbook publishers supply material in format from which Braille version can be produced

 

343.600     State policy encouraging use of Braille

 

DISADVANTAGED CHILDREN

 

343.650     Definitions for ORS 343.650 to 343.680

 

343.660     Facilities and services for disadvantaged children

 

343.670     Advance payment to districts

 

343.680     Advance payments and reimbursements to districts of at least 40,000 for operation and construction costs

 

MIGRANT CHILDREN

 

343.810     Definitions for ORS 343.810 to 343.835

 

343.830     Summer programs for migrant children

 

343.835     Reimbursement; district expenditures not subject to Local Budget Law

 

MISCELLANEOUS PROVISIONS

 

343.923     Department duties for programs for students with moderate to severe retardation; rules

 

343.961     Responsibility for costs of education of children in long-term care or treatment; district providing education; notice required before student dismissed from treatment program

 

      343.010 [Repealed by 1965 c.100 §456]

 

      343.020 [Repealed by 1953 c.110 §2]

 

      343.030 [Repealed by 1953 c.110 §2]

 

GENERAL PROVISIONS

 

      343.035 Definitions. As used in this chapter unless the context requires otherwise:

      (1) “Children with disabilities” means those school-age children who are entitled to a free appropriate public education as specified by ORS 339.115 and who require special education because they have been evaluated as having one of the following conditions as defined by rules established by the State Board of Education: Mental retardation, hearing impairment including difficulty in hearing and deafness, speech or language impairment, visual impairment, including blindness, deaf-blindness, emotional disturbance, orthopedic or other health impairment, autism, traumatic brain injury or specific learning disabilities.

      (2) “Decision” means the decision of the hearing officer.

      (3) “Determination” means the determination by the school district concerning the identification, evaluation or educational placement of a child with disabilities or the provision of a free appropriate public education to the child in a program paid for by the district.

      (4) “Developmental delay” means:

      (a) Delay, at a level of functioning and in accordance with criteria established by rules of the State Board of Education, in one or more of the following developmental areas: Cognitive development; physical development, including vision and hearing; communication development; social or emotional development or adaptive development; or

      (b) A disability, in accordance with criteria established by rules of the State Board of Education, that can be expected to continue indefinitely and is likely to cause a substantial delay in a child’s development and ability to function in society.

      (5) “Early childhood special education” means free, appropriate, specially designed instruction to meet the unique needs of a preschool child with a disability, three years of age until the age of eligibility for kindergarten, where instruction is provided in any of the following settings: Home, hospitals, institutions, special schools, classrooms, and community child care or preschool settings, or both.

      (6) “Early intervention services” means services for preschool children with disabilities from birth until three years of age that are:

      (a) Designed to meet the developmental needs of children with disabilities and the needs of the family related to enhancing the child’s development;

      (b) Selected in collaboration with the parents; and

      (c) Provided:

      (A) Under public supervision;

      (B) By personnel qualified in accordance with criteria established by rules of the State Board of Education; and

      (C) In conformity with an individualized family service plan.

      (7) “Individualized education program” means a written statement of an educational program for a child with a disability that is developed, reviewed and revised in a meeting in accordance with criteria established by rules of the State Board of Education for each child eligible for special education and related services under this chapter.

      (8) “Individualized family service plan” means a written plan of early childhood special education, related services, early intervention services and other services developed in accordance with criteria established by rules of the State Board of Education for each child eligible for services under this chapter.

      (9) “Instruction” means providing families with information and skills that support the achievement of the goals and outcomes in the child’s individualized family service plan and working with preschool children with disabilities in one or more of the following developmental areas: Communication development, social or emotional development, physical development, including vision and hearing, adaptive development and cognitive development.

      (10) “Mediation” means a voluntary process in which an impartial mediator assists and facilitates two or more parties to a controversy in reaching a mutually acceptable resolution of the controversy and includes all contacts between a mediator and any party or agent of a party, until such time as a resolution is agreed to by the parties or the mediation process is terminated.

      (11) “Order” has the meaning given that term in ORS chapter 183.

      (12) “Other services” means those services which may be provided to preschool children with disabilities and to their families that are not early childhood special education or early intervention services and are not paid for with early childhood special education or early intervention funds.

      (13) “Parent” means the parent, person acting as a parent or a legal guardian, other than a state agency, of the child or the surrogate parent. “Parent” may be further defined by rules adopted by the State Board of Education.

      (14) “Preschool children with disabilities” means all children from:

      (a) Birth until three years of age who are eligible for early intervention services because they are experiencing developmental delay or have diagnosed mental or physical conditions that will result in developmental delay; or

      (b) Three years of age to eligibility for entry into kindergarten who need early childhood special education services because they are experiencing developmental delay or because they have been evaluated as having one of the conditions listed for school-age children under subsection (1) of this section.

      (15) “Related services” means transportation and such developmental, corrective and other supportive services as are required to assist a child with disabilities to benefit from special education, and includes speech-language and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation including therapeutic recreation, social work services, school nurse services designed to enable a child with a disability to receive a free appropriate public education as described in the individualized education program of the child, early identification and assessment of disabilities in children, counseling services including rehabilitation counseling, orientation and mobility services, medical services for diagnostic or evaluation purposes and parent counseling and training. “Related services” does not include a medical device that is surgically implanted or the replacement of a medical device that is surgically implanted.

      (16) “School district” means a common or union high school district or an education service district that is charged with the duty or contracted with by a public agency to educate children eligible for special education.

      (17) “Service coordination” means the activities carried out by a service coordinator to assist and enable a preschool child with disabilities and the child’s family to receive the rights, procedural safeguards and services that are authorized under the state’s early intervention and early childhood special education programs and to coordinate access to other services designated on the individualized family service plan.

      (18)(a) “Special education” means specially designed instruction at no cost to the parents, to meet the unique needs of a child with a disability, including instruction conducted in the classroom, in the home, in hospitals and institutions and in other settings, and instruction in physical education.

      (b) “Special education” also includes speech-language services, transition services or other related services designated by rule if it consists of specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability.

      (19) “Unaccompanied homeless youth” has the meaning given that term in the McKinney-Vento Homeless Assistance Act, 42 U.S.C. 11434a(6).

      (20) “Ward of the state” means a child who is temporarily or permanently in the custody of, or committed to, a public or private agency through the action of the juvenile court. “Ward of the state” may be further defined by rules adopted by the State Board of Education. [Formerly 343.212; 1977 c.528 §1; 1983 c.731 §1; 1991 c.749 §§1, 1a; 1991 c.795 §1; 1993 c.409 §1; 1993 c.749 §3; 1995 c.280 §29; 1997 c.821 §25; 1999 c.989 §5; 2001 c.900 §242; 2005 c.662 §1]

 

      343.037 [1985 c.555 §14; repealed by 1993 c.749 §4]

 

      343.040 [Repealed by 1953 c.110 §2]

 

      343.041 Supervision of programs for children with disabilities by Superintendent of Public Instruction; board rules; complaint procedure; staff training; public agency cooperative agreements. (1) Pursuant to rules of the State Board of Education, the Superintendent of Public Instruction shall be responsible for the general supervision of all special education programs for children with disabilities, early childhood special education and early intervention services for preschool children with disabilities within the state, including all such programs administered by any state agency or common or union high school district or education service district.

      (2) All special education programs for children with disabilities, early childhood special education and early intervention services for preschool children with disabilities within this state shall meet the standards and criteria established therefor by the State Board of Education.

      (3) The State Board of Education shall adopt by rule procedures whereby the superintendent investigates and resolves complaints that the Department of Education, a local education agency or an early intervention or early childhood special education contractor has violated a federal law or statute that applies to a special education or early childhood special education program.

      (4) The State Board of Education shall adopt rules relating to the establishment and maintenance of standards to ensure that personnel providing special education and early childhood special education and early intervention services are appropriately and adequately trained.

      (5) The Governor shall direct that agencies affected by this section enter into cooperative agreements to achieve necessary uniformity in meeting the standards and criteria established by the state board under subsection (2) of this section.

      (6) The Governor shall direct that each public agency obligated under federal or state law to provide or pay for any services that are also considered special education or related services necessary for ensuring a free appropriate public education to children with disabilities, including but not limited to the Department of Human Services, enter into cooperative agreements with the Department of Education concerning:

      (a) Allocation among agencies of financial responsibility for providing services;

      (b) Conditions, terms and procedures for reimbursement; and

      (c) Policies and procedures for coordinating timely and appropriate delivery of services.

      (7) All cooperative agreements entered into under subsections (5) and (6) of this section shall include procedures for resolving interagency disputes. [1977 c.528 §3; 1989 c.491 §30; 1991 c.749 §2; 1999 c.989 §6; 2005 c.22 §237]

 

      343.045 Criteria for development and operation of special programs; board rules. The State Board of Education shall establish by rule criteria to guide the development and operation of special programs authorized by this chapter. The Superintendent of Public Instruction shall apply these criteria in certifying such programs for reimbursement specifically provided by law for such programs. The criteria shall be limited to educational services and educational programs and shall not include treatment. [Formerly 343.235; 1975 c.621 §1; 1977 c.714 §10; 1989 c.491 §31]

 

      343.050 [Repealed by 1953 c.110 §2]

 

      343.055 Administration of programs by Superintendent of Public Instruction; board rules; powers of board. (1) The Superintendent of Public Instruction shall administer all programs established under this chapter. The State Board of Education, consistent with the provisions of ORS 342.120 to 342.430, shall adopt rules relating to qualifications of teachers, supervisors, work experience coordinators, coordinators of volunteer services and trainers of volunteer personnel, courses of study, admission, eligibility of children, size of special facilities, rooms and equipment, supervision, territory to be served, and such other rules as the board considers necessary to administer this chapter.

      (2) Out of such funds as may otherwise be appropriated for the purposes enumerated in this section, the State Board of Education may:

      (a) Purchase and prepare equipment and supplies to be loaned to school districts and county or regional special education facilities which provide approved programs for children with disabilities in the public schools.

      (b) Contract with and pay an educational institution, either within or without the state, for the purpose of providing educational services for children who are both deaf and blind.

      (c) Purchase and prepare equipment and supplies to be loaned to early childhood special education and early intervention contractors that provide approved programs for preschool children with disabilities. [Formerly 343.500; 1967 c.329 §1; 1975 c.621 §2; 1989 c.491 §32; 1991 c.749 §3; 1993 c.45 §199]

 

      343.060 [Repealed by 1953 c.110 §2]

 

      343.065 Employment of personnel to supervise types of services for special programs; duties; distribution of training materials. (1) The Superintendent of Public Instruction shall employ personnel qualified by training and experience to supervise the types of services required by the special programs authorized by this chapter. Personnel so employed shall assist the school districts, county and regional facilities, early childhood special education programs, early intervention services and hospitals in the organization and development of special programs authorized by this chapter, shall have general supervision of such programs, and shall assist school districts, early childhood special education and early intervention contractors in obtaining required services, equipment and materials, particularly where the number of children is too small to justify district or contractor purchase of equipment and materials.

      (2) The Department of Education shall distribute to all school districts administrative guidelines, technical assistance materials, practice guidance materials and other training materials it develops for the purpose of assisting school districts and education service districts in complying with the provisions of this chapter and with rules adopted by the department under this chapter.

      (3) Upon receipt of any materials described in subsection (2) of this section, a school district or education service district shall distribute copies of the materials to all instructional staff. [Formerly 343.255; 1991 c.749 §4; 1999 c.639 §2]

 

      343.070 [Repealed by 1953 c.110 §2]

 

      343.075 [1965 c.100 §393; 1973 c.728 §5; repealed by 1975 c.621 §17]

 

      343.077 [1975 c.621 §§12,13; 1977 c.530 §1; repealed by 1979 c.423 §1 (343.153 to 343.187 enacted in lieu of 343.077)]

 

      343.080 [Repealed by 1953 c.110 §2]

 

      343.085 Tuition prohibited. No tuition shall be charged to any resident student participating in any special program authorized by this chapter. [1965 c.100 §394; 1993 c.45 §200]

 

      343.090 [Repealed by 1965 c.100 §456]

 

      343.095 [1993 c.409 §3; renumbered 343.523 in 1999]

 

      343.100 [Repealed by 1965 c.100 §456]

 

      343.110 [Repealed by 1965 c.100 §456]

 

      343.120 [Repealed by 1965 c.100 §456]

 

      343.125 [1973 c.730 §2; 1981 c.878 §1; 1991 c.346 §1; 1993 c.45 §202; renumbered 329.255 in 1993]

 

      343.130 [Amended by 1957 c.232 §1; renumbered 343.910]

 

      343.135 [1973 c.730 §3; 1981 c.878 §2; 1991 c.346 §2; renumbered 329.265 in 1993]

 

      343.140 [Repealed by 1965 c.100 §456]

 

      343.145 [1973 c.730 §4; renumbered 329.275 in 1993]

 

SPECIAL EDUCATION PROCEDURES

 

      343.146 Determination of eligibility for special education services; evaluation; reevaluation; medical or vision examination; health assessment. (1) To receive special education, children with disabilities shall be determined eligible for special education services under a school district program approved under ORS 343.045 and as provided under ORS 343.221.

      (2) Before initially providing special education, the school district shall ensure that a full and individual evaluation is conducted to determine the child’s eligibility for special education and the child’s special educational needs.

      (3) Eligibility for special education shall be determined pursuant to rules adopted by the State Board of Education.

      (4) Each school district shall conduct a reevaluation of each child with a disability in accordance with rules adopted by the State Board of Education.

      (5) If a medical or vision examination or health assessment is required as part of an initial evaluation or reevaluation, the evaluation shall be given:

      (a) In the case of a medical examination, by a physician licensed to practice by a state board of medical examiners;

      (b) In the case of a health assessment, by a nurse licensed by a state board of nursing and specially certified as a nurse practitioner or by a licensed physician assistant; and

      (c) In the case of a vision examination, by an ophthalmologist or optometrist licensed by a state board. [1999 c.989 §12; 2005 c.662 §2]

 

      343.149 [1999 c.989 §22; repealed by 2005 c.209 §41 and 2005 c.662 §17]

 

      343.150 [Repealed by 1965 c.100 §456]

 

      343.151 Individualized education program; contents; procedures; review; revision; rules of State Board of Education; standard forms; alternate forms. (1) School districts shall ensure that an individualized education program is developed, reviewed and revised for each child with a disability, as defined in ORS 343.035, pursuant to the rules of the State Board of Education.

      (2) The State Board of Education shall establish by rule the contents of an individualized education program, including transition services, and the procedures for the development, review and revision of an individualized education program. The board shall also adopt by rule standard forms for use in developing an individualized education program.

      (3) Each school district shall use the individualized education program forms established by rule under subsection (2) of this section in the development, review and revision of all individualized education programs.

      (4) Notwithstanding subsection (3) of this section, a school district may use alternate forms in the development, review and revision of an individualized education program if the school district submits the form to the Department of Education and the department approves the use of the alternate form.

      (5) In considering whether to approve an alternate form under subsection (4) of this section, the department shall consider whether the form meets the requirements for the contents of an individualized education program adopted under subsection (2) of this section and whether the form satisfies the intent of subsection (4) of this section to reduce unnecessary or confusing paperwork. The department shall approve or disapprove an alternate form submitted under subsection (4) of this section within 10 days of receiving the alternate form. [1999 c.639 §4; 2005 c.662 §3]

 

      343.153 [1979 c.423 §2 (enacted in lieu of 343.077); 1985 c.555 §11; 1989 c.491 §33; 1991 c.795 §2; repealed by 1993 c.45 §203]

 

      343.155 Procedures to protect rights of children with disabilities; board rules; content of rules. The State Board of Education shall establish by rule procedures to protect the rights of every child with a disability who is eligible for special education and every child who there is a reasonable cause to believe has a disability, including:

      (1) Rules providing for the participation of the parents of a child with a disability in meetings regarding the child’s identification, evaluation, individualized education program, educational placement and the provision of a free appropriate public education to the child.

      (2) Rules governing the procedures for the appointment of a surrogate for the parent and other rules necessary to protect the special educational rights of the child, which shall include, but need not be limited to, rules applicable whenever:

      (a) No parent of the child can be identified or located after reasonable efforts;

      (b) There is reasonable cause to believe that the child has a disability and is a ward of the state;

      (c) The child is an unaccompanied homeless youth; or

      (d) The child reaches the age of majority and has been determined not to have the ability to give informed consent regarding the child’s education.

      (3) Rules prescribing mediation procedures, resolution sessions and hearings procedures if identification, evaluation, individual education program or placement is contested.

      (4) Rules prescribing when notice of procedural safeguards must be given to the parents or the child with disabilities who has reached the age of majority, the content of the notice and the language of the notice.

      (5) Rules prescribing standards and procedures for disciplinary actions for behavior or misconduct of a child with a disability.

      (6) Other procedural safeguards as required by law. [1979 c.423 §3 (enacted in lieu of 343.077); 1989 c.491 §34; 1991 c.795 §3; 1999 c.989 §10; 2005 c.662 §4]

 

      343.157 Duty of school districts to identify, locate and evaluate resident children in need of special education or early intervention. Pursuant to rules of the State Board of Education, school districts shall identify, locate and evaluate all resident children who may have disabilities and be in need of special education, early childhood special education or early intervention. [1979 c.423 §4 (enacted in lieu of 343.077); 1991 c.749 §5; 1993 c.749 §5]

 

      343.159 Requirements for written notice to parents of child with disability; contents of notice; language or mode of communication of parent. (1) A school district shall give written notice to the parents of a child with a disability a reasonable time before the school district:

      (a) Proposes to initiate or change the identification, evaluation or educational placement of the child or the provision of a free appropriate public education to the child; or

      (b) Refuses to initiate or change the identification, evaluation or educational placement of the child or the provision of a free appropriate public education to the child.

      (2) The written notice must comply with the rules prescribed by the State Board of Education.

      (3) The written notice required under subsection (1) of this section shall be:

      (a) Written in language understandable to the general public; and

      (b) Provided in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so.

      (4) If the native language or other mode of communication of the parent is not a written language, the school district shall take steps to ensure:

      (a) That the notice is translated orally or by other means to the parent in the parent’s native language or other mode of communication;

      (b) That the parent understands the content of the notice; and

      (c) That there is written evidence that the requirements of this subsection have been met. [1999 c.989 §15]

 

      343.160 [Repealed by 1965 c.100 §456]

 

      343.163 [1979 c.423 §5 (enacted in lieu of 343.077); 1991 c.795 §4; repealed by 1993 c.749 §6 (343.164 enacted in lieu of 343.163)]

 

      343.164 Parental consent requirements for preplacement evaluation, placement or reevaluation; exceptions. (1) A school district shall obtain informed written parental consent before the school district conducts a preplacement evaluation and before a child with a disability is initially placed in a program providing special education and related services.

      (2) A school district shall obtain informed written parental consent before the school district conducts a reevaluation of a child with a disability.

      (3) Notwithstanding subsection (2) of this section, written parental consent need not be obtained if the school district can demonstrate that it has taken reasonable measures to obtain consent and that the child’s parent has failed to respond.

      (4) The school district shall follow procedures prescribed in rules of the State Board of Education when necessary consent is not obtained. [1993 c.749 §7 (enacted in lieu of 343.163); 1999 c.989 §13]

 

      343.165 Circumstances requiring hearing; deadline for requesting hearing; hearing rules; expedited hearing; independent hearing officer. (1) A hearing shall be conducted pursuant to rules of the State Board of Education if:

      (a) The parent requests a hearing to contest the determination of the school district concerning the identification, evaluation, individualized education program, educational placement or the provision of a free appropriate public education to the child; or

      (b) The school district requests a hearing to obtain a decision regarding whether its identification, evaluation, individualized education program or educational placement of the child is appropriate or whether the district’s proposed action is necessary to provide the child with a free appropriate public education.

      (2) Notwithstanding subsection (1)(b) of this section, a school district may not request a hearing if a parent refuses consent for placement in a program providing special education and related services.

      (3)(a) Except as provided in paragraph (b) of this subsection, a hearing described in subsection (1) of this section must be requested within two years after the date of the act or omission that gives rise to the right to request a hearing under subsection (1) of this section.

      (b) The timeline described in paragraph (a) of this subsection does not apply to a parent if the parent was prevented from requesting the hearing due to:

      (A) Specific misrepresentations by the school district that it had resolved the problem forming the basis of the complaint; or

      (B) The school district withholding from the parent information that the district was required to provide under this chapter.

      (4) The State Board of Education shall adopt rules that establish when a school district is obligated to initiate a contested case hearing to ensure that a student with disabilities is provided with a free appropriate public education.

      (5) The board’s rules in subsection (1) of this section shall be as consistent as possible with the procedures applicable to a contested case under ORS chapter 183. However, the board’s rules shall provide that:

      (a) Any party to a hearing has the right to prohibit the introduction of any evidence that has not been disclosed to that party at least five business days before the hearing; and

      (b) The hearing officer may prohibit the introduction of any evidence regarding evaluations and recommendations based on those evaluations that a party intends to use at the hearing, if the evidence has not been disclosed to the other party at least five business days before the hearing, unless the other party consents to the introduction of the evidence.

      (6) Notwithstanding subsection (5) of this section, in an expedited hearing the evidence must be disclosed to the other party not later than two business days before the hearing.

      (7) The parent shall be entitled to have the child who is the subject of the hearing present at the hearing and to have the hearing open to the public.

      (8) An expedited hearing shall be held if:

      (a) In a dispute over a disciplinary action for a child with a disability, the child’s parent disagrees with a determination that the child’s behavior was not a manifestation of the child’s disability or with any decision regarding the child’s educational placement; or

      (b) The school district believes that maintaining the current placement for the child is substantially likely to result in injury to the child or others.

      (9) The hearing shall be conducted by an independent hearing officer appointed by the Superintendent of Public Instruction. The hearing officer:

      (a) Shall not be:

      (A) An employee of a school district involved in the education or care of the child;

      (B) An employee of the Department of Education; or

      (C) A person having any personal or professional interest that would conflict with the person’s objectivity in the hearing.

      (b) Shall possess:

      (A) Knowledge of, and the ability to understand, the provisions of state and federal special education laws, regulations and legal interpretations by federal and state courts;

      (B) The knowledge and ability to conduct hearings in accordance with appropriate standard legal practice; and

      (C) The knowledge and ability to render and write decisions in accordance with standard legal practice. [1979 c.423 §6 (enacted in lieu of 343.077); 1989 c.252 §1; 1989 c.491 §35; 1991 c.795 §5; 1993 c.45 §206; 1993 c.749 §8; 1999 c.989 §16; 2001 c.483 §1; 2005 c.662 §5]

 

      343.167 Result of hearing; effect of procedural violations; deadline for decision; cost of hearing; rules. (1) If the finding at the hearing held under ORS 343.165 is that the identification, evaluation and educational placement by the district are appropriate and that the child is being provided a free appropriate public education, the hearing officer shall decide in support of the determination of the district.

      (2) If the finding at the hearing is that the identification, evaluation or educational placement is not appropriate or that the child is not being provided a free appropriate public education, the hearing officer shall grant appropriate relief within the hearing officer’s scope of authority.

      (3) In matters alleging a procedural violation, a hearing officer may find that a child did not receive a free appropriate public education only if the procedural inadequacies:

      (a) Impeded the child’s right to a free appropriate public education;

      (b) Significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the child; or

      (c) Caused a deprivation of educational benefits.

      (4) Nothing in subsection (3) of this section shall be construed to preclude a hearing officer from ordering a school district to comply with procedural requirements.

      (5) The decision shall be entered not later than 45 days after the request for hearing is filed unless an extension has been granted by the hearing officer at the request of the parent or the school district. Copies of the decision shall be sent to the parent and to the school district accompanied by a statement describing the method of appealing the decision.

      (6) In expedited hearings conducted pursuant to ORS 343.165 (8), the State Board of Education shall adopt rules that require a hearing within 20 school days of the date the hearing is requested and a determination within 10 school days after the hearing.

      (7) Pursuant to rules of the State Board of Education, the Superintendent of Public Instruction shall bill the school district for all reasonable costs connected with the appointment of an independent hearing officer and the conduct of a due process hearing. The district shall make payment to the Department of Education for the cost of the hearing within 30 days of receipt of the billing. [1979 c.423 §7 (enacted in lieu of 343.077); 1989 c.252 §2; 1991 c.795 §6; 1993 c.749 §9; 1999 c.989 §17; 2001 c.483 §2; 2005 c.662 §6]

 

      343.170 [Repealed by 1965 c.100 §456]

 

      343.173 Parental right to examine district records; independent evaluation; hearing; costs. (1) Notwithstanding the limitation on access to records under ORS 192.410 to 192.505, 326.565, 326.575 and 336.187, the parent is entitled at any reasonable time to examine all of the records of the school district pertaining to the identification, evaluation and educational placement of the child and the provision of a free appropriate public education to the child.

      (2) Any parent is entitled to obtain an independent evaluation at the expense of the school district if the parent disagrees with an evaluation obtained by the district.

      (3) If the school district disagrees with the parent’s request for an independent educational evaluation, the district may initiate a hearing under ORS 343.165 to show that the district’s evaluation is appropriate. If the final decision is that the district’s evaluation is appropriate, the parent has the right to an independent educational evaluation, but not at the district’s expense.

      (4) If the parent requests an independent educational evaluation of the child, the school district shall provide information about where an independent educational evaluation may be obtained.

      (5) If a hearing officer appointed under ORS 343.165 requests an independent educational evaluation as part of a hearing, the school district shall pay the cost of the evaluation.

      (6) For purposes of this section, “independent educational evaluation” means an evaluation conducted by a qualified examiner who is not employed by the school district responsible for the child in question. [1979 c.423 §8 (enacted in lieu of 343.077); 1989 c.252 §3; 1989 c.491 §36; 1993 c.45 §207; 1999 c.989 §18]

 

      343.175 Civil action following hearing; deadline; attorney fees; limitations; reduction of fees. (1) A decision under ORS 343.165 is final unless the parent or the school district files a civil action under subsection (2) of this section.

      (2) Either party aggrieved by the finding and decision of the hearing officer may commence a civil action in any court of competent jurisdiction.

      (3) In any action brought under this section, the court shall receive the records from the administrative proceeding, shall hear additional evidence at the request of a party and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate.

      (4) Any civil action brought under this section shall be commenced within 90 days of the date of the hearing officer’s final order.

      (5) In any action or proceeding brought under ORS 343.165 or in an appeal from any action or proceeding brought under ORS 343.165, the court, in its discretion, may award reasonable attorney fees as part of costs to:

      (a) The parents of a child with a disability, if the parents are the prevailing party;

      (b) A prevailing party who is the Department of Education or school district against the attorney of a parent who files a complaint or subsequent cause of action that is frivolous, unreasonable or without foundation, or against the attorney of a parent who continued to litigate after the litigation clearly became frivolous, unreasonable or without foundation; or

      (c) A prevailing party who is the Department of Education or a school district against the attorney of a parent, or against the parent, if the parent’s complaint or subsequent cause of action was presented for any improper purpose, such as to harass, to cause unnecessary delay or to needlessly increase the cost of litigation.

      (6) Attorney fees awarded under this section shall be based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished. No bonus or multiplier may be used in calculating these fees.

      (7) Attorney fees may not be awarded and related costs may not be reimbursed under this section for services performed after a written offer of settlement to a parent if:

      (a) The offer is made within the time prescribed by Rule 68 of the Federal Rules of Civil Procedure, or in case of an administrative hearing, more than 10 days before the hearing begins;

      (b) The offer is not accepted within 10 days; and

      (c) The relief finally obtained by the parents is not more favorable to the parents than the offer of settlement.

      (8) Notwithstanding subsection (7) of this section, attorney fees and related costs may be awarded to a parent who is the prevailing party and who was substantially justified in rejecting the settlement offer.

      (9) Attorney fees may not be awarded relating to any meeting of the individualized education program team unless the meeting is convened as a result of an administrative proceeding under ORS 343.165, or as a result of judicial action. A resolution session is not considered a meeting convened as a result of an administrative hearing or judicial action, or an administrative hearing or judicial action.

      (10) Attorney fees may not be awarded for a mediation that is conducted before a request for a hearing under ORS 343.165.

      (11) The court shall reduce the amount of attorney fees awarded under this section if:

      (a) The parent unreasonably protracted the final resolution of the controversy;

      (b) The amount of the attorney fees unreasonably exceeds the hourly rate prevailing in the community for similar services by attorneys of reasonably comparable skill, reputation and experience;

      (c) The time spent and legal services furnished were excessive considering the nature of the action or proceeding; or

      (d) In requesting a hearing under ORS 343.165 (1)(a), the attorney representing the parent did not provide written notice to the Superintendent of Public Instruction that included:

      (A) The child’s name, address and school;

      (B) A description of the problem and facts relating to the problem; and

      (C) A proposed resolution of the problem.

      (12) The court shall not reduce fees under subsection (11) of this section if:

      (a) The school district unreasonably protracted the final resolution of the controversy; or

      (b) The school district violated the procedural safeguards as set forth in ORS 343.146 to 343.183. [1979 c.423 §9 (enacted in lieu of 343.077); 1983 c.731 §9; 1989 c.252 §4; 1993 c.45 §208; 1993 c.749 §12; 1999 c.989 §19; 2001 c.104 §116; 2005 c.662 §7]

 

      343.177 Educational placement during administrative or judicial proceedings; circumstances where placement may be changed. (1) During the pendency of any administrative or judicial proceedings concerning the identification, evaluation or educational placement of the child or the provision of a free appropriate public education to the child, the child shall remain in the then current educational program placement.

      (2) Notwithstanding subsection (1) of this section, the placement of a child may be changed if:

      (a) The parent consents to placement in a program provided or selected by the district at the district’s expense until the proceedings referred to in subsection (1) of this section are completed if applying for initial admission to a public school;

      (b) The parent and the school district agree to temporary placement in some other program;

      (c) The school district orders a change in placement to an appropriate interim alternative educational setting for up to 45 school days without regard to whether the behavior is determined to be a manifestation of the child’s disability:

      (A) Due to a weapon, illegal drug or controlled substance incident; or

      (B) Because the child has inflicted serious bodily injury upon another person while at school, on school premises or at a school function under the jurisdiction of the Department of Education or school district;

      (d) A hearing officer orders a change in placement to an appropriate interim alternative educational setting for up to 45 school days due to the substantial likelihood of injurious behavior, pursuant to rules of the State Board of Education; or

      (e) School personnel order a change in placement to an interim alternative educational setting for more than 10 school days for a child with a disability who violates a code of student conduct and the behavior that gave rise to the violation is determined not to be a manifestation of the child’s disability.

      (3) If the placement of a child with a disability is changed under subsection (2)(e) of this section:

      (a) The relevant disciplinary procedures applicable to children without disabilities may be applied to the child in the same manner and for the same duration as the disciplinary procedures would be applied to children without disabilities;

      (b) The child continues to be entitled to a free appropriate public education under ORS 339.252, although the education may be provided in an interim alternative educational setting; and

      (c) The child shall remain in the interim alternative educational setting pending the decision of a hearing officer or until the expiration of the school district’s determination of duration of the change in placement under paragraph (a) of this subsection, whichever occurs first.

      (4) For the purposes of subsection (2)(b) of this section, a decision of a hearing officer under ORS 343.165 that agrees with the child’s parents that a change of placement is appropriate shall be treated as an agreement between the school district and the parents. [1979 c.423 §10 (enacted in lieu of 343.077); 1991 c.795 §7; 1993 c.749 §13; 1995 c.237 §1; 1999 c.989 §20; 2005 c.662 §8]

 

      343.180 [Repealed by 1965 c.100 §456]

 

      343.181 Transfer of special education rights to child with disability upon age of majority; notice. When a child with a disability reaches the age of majority as described in ORS 109.510 or 109.520 or is emancipated pursuant to ORS 419B.550 to 419B.558:

      (1) The rights accorded to the child’s parents under this chapter transfer to the child;

      (2) The school district shall provide any written notice required to both the child and the parents; and

      (3) The school district shall notify the child and the parents of the transfer of rights. [1999 c.989 §9]

 

      343.183 Effect of school district failure to comply; withholding funds; expense of independent evaluation. (1) In addition to and not in lieu of any other sanction that may be imposed against a noncomplying school district, the Superintendent of Public Instruction may withhold all or any part of the funds otherwise due a district for special education until the district complies with the requirements of ORS 343.146 to 343.183.

      (2) If the Superintendent of Public Instruction finds that the school district has refused to pay for the independent evaluation when the results thereof required the determination of the school district to be revised significantly, the superintendent may withhold from funds due the district for special education an amount not to exceed the expense incurred by the parent in obtaining the independent evaluation. The superintendent shall use the funds thus withheld for payment of the costs of the independent evaluation. [1979 c.423 §11 (enacted in lieu of 343.077); 1989 c.491 §37]

 

      343.185 [1979 c.423 §12 (enacted in lieu of 343.077); 1983 c.294 §1; 1989 c.158 §1; repealed by 1991 c.795 §15]

 

      343.187 [1979 c.423 §14 (enacted in lieu of 343.077); 1989 c.491 §38; 1991 c.795 §8; renumbered 339.623 in 1991]

 

      343.190 [Repealed by 1965 c.100 §456]

 

      343.193 Duty to report disabled child not enrolled in special education program; effect of report. (1) Any public or private official having reasonable cause to believe that any child with whom the official comes in contact officially is a disabled child who is eligible for but not enrolled in a special education program shall report to the Superintendent of Public Instruction the child’s name and the facts leading the official to the belief.

      (2) Nothing in ORS 40.225 to 40.295 shall affect the duty to report imposed by subsection (1) of this section except that a physician, licensed psychologist, member of the clergy or attorney shall not be required to report information communicated by an adult if such information is privileged under ORS 40.225 to 40.295.

      (3) Upon receipt of a report under subsection (1) of this section, the Superintendent of Public Instruction shall verify whether the child is enrolled in a special education program and may cause an investigation, including an evaluation under ORS 343.146, to be made to determine whether the child is eligible for a program under ORS 343.221.

      (4) As used in this section, “public or private official” has the meaning given in ORS 419B.005. [1979 c.836 §6; 1983 c.740 §108; 1989 c.224 §53; 1993 c.45 §210; 1993 c.546 §102; 1999 c.989 §35; 2001 c.104 §117]

 

      343.195 [1991 c.795 §16; 1993 c.45 §212; repealed by 1999 c.989 §36]

 

      343.200 [Repealed by 1965 c.100 §456]

 

      343.210 [Repealed by 1955 c.721 §1]

 

      343.211 [1959 c.510 §2 (343.211 to 343.291 and 343.990(2) enacted in lieu of 343.234 to 343.304 as compiled in 1957 Replacement Part); repealed by 1965 c.100 §395 (343.212 enacted in lieu of 343.211)]

 

      343.212 [1965 c.100 §396 (enacted in lieu of 343.211); 1969 c.291 §1; 1975 c.621 §4; renumbered 343.035]

 

      343.216 [1953 c.444 §§1, 2; repealed by 1955 c.721 §1]

 

      343.218 [1953 c.444 §§3, 4; repealed by 1955 c.721 §1]

 

      343.220 [Repealed by 1953 c.710 §23]

 

ADMINISTRATION OF SPECIAL EDUCATION

 

      343.221 Special education required; district projected activities and cost statement; permitted contracts for services. In order to provide special education for children with disabilities, the district school board of any school district in which there are school-age children who require special education:

      (1) Shall submit an annual projected activities and cost statement to the Superintendent of Public Instruction for a program of special education for the district’s children with disabilities. The proposed district program shall include provisions for providing special education and related services and be designed to meet the unique needs of all resident children with disabilities.

      (2) Shall provide special education for such children consistent with the projected activities and cost statement.

      (3) May, when the board considers a contract to be economically feasible and in the interests of the learning opportunities of eligible children, contract for special education for such children with another school district if the district school boards jointly agree to provide special education.

      (4) May, when the board considers a contract to be economically feasible and in the interests of the learning opportunities of eligible children, contract for special education for such children with an education service district if:

      (a) The contract is consistent with the local service plan of the education service district developed pursuant to ORS 334.175 and the school districts within the education service district approve the contract by a resolution adopted in the manner provided in ORS 334.175.

      (b) The school district contracts with an education service district pursuant to ORS 334.185.

      (5) May contract with private agencies or organizations approved by the State Board of Education for special education.

      (6) May use the services of public agencies, including community mental health and developmental disabilities programs, which provide diagnostic, evaluation and other related services for children.

      (7) May contract for the provision of related services by a person in private practice if that person is registered, certified or licensed by the State of Oregon as qualified to provide a particular related service that requires registration, certification or licensing by the state. [1959 c.510 §4 (343.211 to 343.291 and 343.990(2) enacted in lieu of 343.234 to 343.304 as compiled in 1957 Replacement Part); 1963 c.403 §1; 1965 c.100 §399; 1975 c.621 §6; 1977 c.529 §1; 1981 c.393 §2; 1983 c.731 §2; 2005 c.828 §6]

 

      Note: The amendments to 343.221 by section 6, chapter 828, Oregon Laws 2005, become operative July 1, 2006. See section 7, chapter 828, Oregon Laws 2005. The text that is operative until July 1, 2006, is set forth for the user’s convenience.

      343.221 In order to provide special education for children with disabilities, the district school board of any school district in which there are school-age children who require special education:

      (1) Shall submit an annual projected activities and cost statement to the Superintendent of Public Instruction for a program of special education for the district’s children with disabilities. The proposed district program shall include provisions for providing special education and related services and be designed to meet the unique needs of all resident children with disabilities.

      (2) Shall provide special education for such children consistent with the projected activities and cost statement.

      (3) May, when the board considers a contract to be economically feasible and in the interests of the learning opportunities of eligible children, contract for special education for such children with another school district or an education service district if:

      (a) The district school boards jointly agree to provide special education.

      (b) The school districts within the education service district approve the contract by a resolution adopted in the manner provided in ORS 334.175 (2).

      (c) Any school district within the education service district contracts with the education service district in the manner provided in ORS 334.175 (3) for such special education.

      (4) May contract with private agencies or organizations approved by the State Board of Education for special education.

      (5) May use the services of public agencies, including community mental health and developmental disabilities programs, which provide diagnostic, evaluation and other related services for children.

      (6) May contract for the provision of related services by a person in private practice if that person is registered, certified or licensed by the State of Oregon as qualified to provide a particular related service that requires registration, certification or licensing by the state.

 

      343.222 [1953 c.444 §6; repealed by 1955 c.721 §1]

 

      343.223 Assistive technology devices or services required; rules to define devices and services. (1) Each school district shall make assistive technology devices or assistive technology services, or both, available to a child with a disability if required as part of a child’s special education, related services or supplementary aids and services.

      (2) The State Board of Education shall establish by rule the definitions of assistive technology devices and assistive technology services. [1993 c.749 §15]

 

      Note: 343.223 was added to and made a part of ORS chapter 343 by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.

 

      343.224 School district liability for expense of noneducational care. School districts shall not be financially responsible for noneducational care of a child with disabilities unless that district has participated in development of the child’s individualized education plan that clearly documents such care is prerequisite to the child receiving a free and appropriate education and the placement is for educational program needs, rather than care needs. [Formerly 343.367]

 

      343.225 [1959 c.510 §5 (343.211 to 343.291 and 343.990(2) enacted in lieu of 343.234 to 343.304 as compiled in 1957 Replacement Part); 1963 c.544 §48; repealed by 1965 c.100 §456]

 

      343.227 [1965 c.100 §398; 1975 c.621 §5; 1993 c.45 §213; 1993 c.316 §1; repealed by 1999 c.989 §36]

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