To follow-up on our annual School Law legislative update, over the next few weeks we will be highlighting and analyzing the most important developments from this year’s session of the General Assembly that Connecticut K-12 school leaders should be aware of as we head into the 2023-24 school year. The 2023 session produced some deceptively significant changes in special education law. Here is a brief summary of key legislation addressing special education.
THE BIG ONE: PUBLIC ACT 23-137
In particular, Public Act 23-137 (“An Act Concerning Resources And Support Services For Persons With An Intellectual Or Developmental Disability”) ostensibly was intended to address the level of state agency services for persons with disabilities but also contains various provisions addressing 1) transition services and procedural safeguards to be provided by school districts, and 2) general changes to Connecticut special education laws and procedures. Except where otherwise indicated, this Act takes effect July 1, 2023.
TRANSITION SERVICES AND THE CSDE
This Act requires the Connecticut State Department of Education (“CSDE”) to employ a statewide transition services coordinator to coordinate the provision of transition resources, services, and public transition programs (including those programs provided by boards of educations and regional educational service centers (“RESCs”)), in collaboration with other state agencies. Among the duties of the coordinator are establishing minimum standards for public transition programs (and metrics for measuring them), setting best practices for providing transition services (and distributing them to each school district’s transition coordinator), performing unannounced visits at public transition programs to determine their effectiveness and offer improvements and to post data on the CSDE website about the how the program measured against the CSDE’s minimum standards, establishing minimum standards for training school district transition coordinators (and maintaining a record of each coordinator’s training program completion), and developing a course on the CSDE website for educators and staff who do not provide transition services to provide them with information about transition services.
The Act requires the State Education Resource Center (“SERC”) to develop and maintain an online listing of the transition resources, services, and programs that state agencies provide. The CSDE’s state-wide transition coordinator is then (after ensuring its accuracy) to post a link to the online listing on the CSDE website and to distribute a notice concerning the on-line listing to school districts, who in turn are then required to annually distribute the notice to parents at Planning and Placement Team (“PPT”) meetings for students in grades six through twelve.
By July 1, 2024, the Act requires the CSDE to develop a training program addressing legal requirements and best practices for special education and transition services. The Act also requires the CSDE (in consultation with other state entities and RESCs) to develop by July 1, 2024 a training program on public transition programs for school district transition coordinators, educators and school paraprofessionals; such training program shall comply with the minimum standards established by the state-wide transition services coordinator. Thereafter, each RESC shall provide the training program at no cost to school district transition coordinators, educators and school paraprofessionals who provide transition services and any other educators/school staff interested in becoming a transition coordinator or providing transition services.
IMPACT: While much of the above provisions address SDE responsibilities, 1) RESCs are granted a significant responsibility with respect to training, and 2) school districts will be responsible for providing the notices developed by SERC.
District Transition Coordinators
The Act additionally requires each school district to designate a district transition coordinator by January 1, 2024; the coordinator may be the director of pupil personnel or another employee appointed as transition coordinator by said director. Each district-level transition coordinator shall 1) complete the training program developed by the CSDE, and 2) ensure that parents of students requiring special education receive information concerning transition resources, transition services or public transition programs (specifically, the afore-mentioned on-line listing developed by SERC) and are aware of the eligibility requirements and application details of such resources, services and programs that specifically apply to such student. Furthermore, the Act provides that each educator and school paraprofessional who provides special education for students fourteen years of age or older shall complete the training program developed by the CSDE.
IMPACT: In addition to the need to appoint an appropriately qualified transition coordinator, school districts need to be aware of these new training requirements.
The Age 22+ Cutoff
More substantively, under the guise of compliance with the A.R. federal court decision, the Act (effective July 1, 2023) requires boards of education to provide special education until an eligible student graduates high school or until the end of the school year when the student reaches age 22. Previously, this obligation extended only until the date of the student’s 22nd birthdate (which actually seemed to be in compliance with the A.R. court order).
IMPACT: It goes without saying that extending the potential endpoint for a special education student’s eligibility from the student’s 22nd birthday until the end of the school year in which a student turns 22 could have a significant fiscal impact for school districts. While the CSDE has indicated that there is no retroactive effect for those students exited before July 1, 2023, districts will have to notify those students who would have been exited during the 2023-2024 as a result of reaching the age of 22 with respect to their continuing eligibility.
SERC Review
The Act requires SERC to conduct a review of each public transition program and report its findings to the General Assembly’s Education Committee by February 1, 2024. Such review shall examine (but not be limited to): 1) The types of transition services, provided in such program, 2) the number and qualifications of the staff providing such transition services, 3) the location of such program relative to the residence of the student or the student's family, and 4) any metrics for measuring the performance of such program, such as student and family feedback and the placement of students in employment, postsecondary education or training programs for adults.
PPT/Notice Requirements
Translation Services
Ostensibly seeking to follow federal requirements, this Act provides that at each PPT meeting, a parent (or guardian, pupil or surrogate parent, as the case may be) shall have the right to have a language interpreter (including a registered interpreter for persons who are deaf, hard of hearing or deafblind), who is present in person or available by telephone or through an online technology platform, or website or other electronic application approved by the CSBE provided by the responsible school district if there is an apparent need or upon the request of such parent. In addition, the responsible school district shall provide a pupil’s individualized education program (“IEP”), any documents relating to such program and all notices or information required by law translated into the primary language spoken by such parent/guardian or pupil if there is an apparent need or upon the request of the parent/guardian or pupil.
Mediation Notice
Each responsible school district shall provide the notice created by the CSDE’s Mediation Services Coordinator regarding the availability of mediation services to each parent/guardian (including surrogate parents) of any child who requires special education by 1) distributing such notice to parents/guardians at the beginning of each school year, and 2) reading such notice out loud at the conclusion of the first PPT meeting at the beginning of each school year.
Transfer of Rights/Decision-Making
The Act requires that at the first PPT meeting after a child who requires special education and related services reaches the age of fourteen (and at least annually thereafter), each responsible school district shall provide information to the child and the responsible parent/guardian about the full range of decision-making supports, including alternatives to guardianship and conservatorship, and the online resource developed by the CSDE concerning establishing guardianship, conservatorship, supported decision-making, powers of attorney, advance directives, or other decision-making alternatives for when a student reaches age 18 and is receiving special education or related services.
Notice of Transition Programs
The Act further provides that at the first PPT meeting when a child reaches the age of fourteen, the PPT shall for each public transition program and for each program for adults for which such child may be eligible after graduation, 1) upon the approval of the parent/guardian, notify the state agency that provides such program about the potential eligibility of such child, and 2) provide the parent/guardian with a listing of such programs that includes, but is not limited to, a plain language description, eligibility requirements, and deadlines and instructions for applications for such programs. Similar information must be provided not later than the PPT meeting that occurs approximately two years prior to a child's anticipated graduation from high school or the end of the school year in which a child will reach twenty-two years of age, whichever is expected to occur first based on the child's IEP; in addition, the PPT shall 1) invite a representative from each such agency to attend the PPT meeting for the purpose of establishing contact with and counseling the parent/guardian (or child) on the process for the anticipated transfer of services when the child exits from special education from the district, 2) permit and facilitate contact and coordination between each such agency and such parent/guardian/child for the purpose of easing the process for the transfer of services, and 3) assist such parent/guardian or child in completing an application to any such programs.
IMPACT: The above provisions 1) clarify (if not impose new responsibilities) with respect to the need to provide translation services for both the written IEP/PPT documents and the PPT meeting itself, and 2) impose a bevy of notice responsibilities upon school districts, to be provided at certain PPT meetings (and/or annually).
MEDIATION SERVICES
Public Act 23-127 requires the CSDE to employ a “mediation services coordinator” in its Bureau of Special Education to, among other things, 1) coordinate and oversee special education mediation services throughout the state, and 2) maintain a list of special education mediators that meet the minimum training requirements. The Act sets forth training/continuing education requirements for mediators, and enables the CSDE to waive requirements for those who have sufficient training requirements or experience (and to retain prior mediators). The Act further makes the Mediation Services Coordinator the point person for mediation requests by any party. While any party may request mediation, mediation remains voluntary (and all parties must still agree to mediate).
IMPACT: All parties need to be aware that the mediation services coordinator will the point of contact for mediation matters.
DUE PROCESS HEARINGS
The Act also makes changes to due process hearing proceedings by mandating that school districts proceed with their cases first at any hearing (and offer testimony) instead of the parent.
IMPACT: Imposing the burden of production upon the school district regardless of which party requested the due process hearing is yet another hurdle placed upon school districts.
SPECIAL EDUCATION COMPLIANCE AUDITS
The Act also requires the CSDE to randomly audit school districts with respect to their compliance with federal special education law. Such audits shall include, but need not be limited to: 1) interviewing teachers and staff who provide special education services and parents/guardians of children requiring special education, 2) conducting unannounced on-site visits to observe classroom practice and any other facet of the administration or provision of special education services in order to ensure compliance with IEPs and state and federal law and guidance, and 3) reviewing IEPs.
IMPACT: It goes without saying that school districts should be prepared and stay in compliance with the law, in case they are the subject of a random audit.
IN-SERVICE REQUIREMENTS
The Act expands teacher in-service training requirements to include: 1) laws governing the implementation of PPT meetings and Section 504 plans, and 2) an annual update of new state and federal policies concerning special education, recommendations and best practices.
Please note: Public Act 23-160 amended the in-service training law by mandating that paraeducators be allowed to participate (if they so choose) in in-service training programs along with certified staff members. Public Act 23-167 requires that all boards of education must provide professional development programs related to training and instruction in the implementation of IEPs and Section 504 Plans to nurses not later than thirty days after a nurse has been appointed by or entered into a contract with a board.
IMPACT: School districts will need to ensure that their in-service training address these topics.
BIRTH-TO-THREE SERVICES
The Act requires individual service coordinators for children receiving early intervention/“birth to three services” to assist in facilitating the transition to public school special education services. Specially, not later than three months prior to the third birthday of such child, the individual service coordinators shall 1) notify the child’s parent/guardian of their ability to meet, upon request, with the coordinator to discuss the contact information for the person responsible for the administration or coordination of special education services for the child’s residing school district, and 2) provide such person responsible for the administration or coordination of special education services with the child’s individualized family service plan.
IMPACT: This is an attempt to provide for a greater clarification with respect to the hand-off of responsibilities from the Birth to Three program to school districts.
INFORMATIONAL HANDOUT FOR STUDENTS
The Act requires the CSDE by not later than January 1, 2024 to develop an “age appropriate” informational handout for students that explains what it means for a student to have an IEP or Section 504 plan pursuant to Section 504 of the Rehabilitation Act of 1973, including 1) what rights the student is entitled to in the classroom under an IEP or Section 504 plan, and 2) a glossary of the most common tools/terms. The CSDE shall make such handout available to school districts and post such handout on the CSDE’s website. Each school district shall annually (and upon the initial identification of a child as requiring special education and related services) provide this student handout, along with the CSDE’s “Parent's Guide to Special Education in Connecticut” to students.
IMPACT: School districts should 1) stay tuned until the CSDE finalizes the handout, and 2) then be prepared to distribute the handout.
INTELLECTUAL DISABILITY AND DEVELOPMENTAL DISABILITY DEFINITIONS
Finally, the Act requires the Secretary of the Office of Policy and Management (“OPM”), in consultation with the Commissioners of Education, Social Services, Developmental Services, Aging and Disability Services and Public Health, the Council on Developmental Disabilities and the Autism Spectrum Disorder Advisory Council, to 1) develop and recommend new state statutory definitions for intellectual disability and developmental disabilities and identify related programs for persons with such disabilities that may need to be changed or redesignated in accordance with any new statutory definitions, 2) evaluate whether an Intelligence Quotient (“IQ”) should be a factor in such definitions, and 3) evaluate the level-of-need assessment tool used by state agencies that serve persons with an intellectual disability or other developmental disabilities. Not later than January 1, 2025, the OPM secretary shall file a report, with recommendations with the General Assembly’s Appropriations, Education, Human Services and Public Health Committees.
PARAEDUCATOR INVOLVEMENT IN PPT MEETINGS
Effective July 1, 2023, Public Act 23-159 expands on recent legislation requiring paraeducator attendance at PPT meetings upon parent request, by providing that paraprofessionals may meet with a supervisor as needed following such a PPT to review the student’s educational program.
IMPACT: This is another example of legislative efforts to provide greater training and support for paraeducators.
EXCESS COST GRANTS
With respect to special education excess cost grants, effective July 1, 2023, Public Act 23-150 clarifies the methodology used for calculating district special education excess cost grant awards by providing that districts shall be eligible for grant funding for special education costs in excess of four-and-one-half times a district’s “net current expenditures per pupil” rather than a district’s “average per pupil educational costs,” which had been the baseline metric used for calculating excess cost grants. The Act also defines a school district’s “average daily membership per pupil” for purposes of grant calculations. These changes are (HOPEFULLY) technical in nature and should not result in any change in underlying excess cost grant award calculations.
This year’s budget implementer – Public Act 23-204 – maintained current levels of excess cost funding for high-cost special education placements, as revised last year and by Public Act 23-1 (with a sliding scale based upon district wealth), with 1) the wealthiest districts receiving 85% of the excess cost grant following the district reaching the excess cost threshold, 2) the middle districts receiving 88% of said grant, and 3) the least wealthy/poorest districts receiving 91% of said grant.
Starting with the 2023-24 fiscal year, the Act explicitly prohibits districts from including federal coronavirus pandemic relief funding in the calculation of net current expenditures per pupil for purposes of determining the amount of the district’s annual excess cost grant.
IMPACT: School districts avoided a feared reduction in excess cost grants.
SPECIAL EDUCATION FUNDING TASK FORCE
Public Act 23-150 amends existing legislation that created a task force to study special education funding issues to broaden the scope of the task force to examine issues related to gifted and talented students. Additionally, the Act expands the scope of the task force’s examination of special education issues to include study of the feasibility of utilizing independent evaluators to observe the provision of special education services in the classroom, delaying the age in which a classification of special education services is made, special education student-to-teacher ratios, the prohibition on the use of seclusion and other issues or topics relating to special education the task force wishes to examine. The Act also expands the composition of the task force to include additional members appointed by legislative leaders and stakeholder groups. Finally, the Act pushes back the deadline for the task force’s final report to the General Assembly’s Education Committee from January 1, 2024 to January 1, 2025 but requires that an interim report be made to the Education Committee by January 1, 2024.
SPECIAL EDUCATION AND CHARTER SCHOOLS
Public Act 23-150 clarifies existing law with respect to charter school enrollment by explicitly prohibiting charter schools from inquiring into an applicant student’s need for or receipt of special education and related services. furthermore, the act prohibits the use of student special education and related services needs in charter school enrollment lotteries.
IMPACT: To a degree, this “revision" just annunciates the fact that charter school special education requirements are NOT dissimilar to those of traditional public schools.
SPECIAL EDUCATION COMPLIANCE COMPLAINT DECISIONS
Similar to what is in place for due process hearing decisions, Public Act 23-150 requires the CSDE to post summaries of compliance complaints filed against boards of education and other entities which may be responsible for the provision of special education and related services on the CSDE website.
SECTION 504 TEAM MEETINGS
Public Act 23-150 expands upon recent legislation regarding the rights of paraprofessionals and other district staff at PPT meetings by prohibiting boards of education from disciplining, suspending, terminating or otherwise punishing any school employee who discusses or makes recommendations during any Section 504 plan team meetings.
IMPACT: To a degree, this “revision" just reiterates the non-retaliation provisions of federal disability statutes.
As you can see, much is on the horizon with respect to additional notice, training and substantive requirements for school districts in the world of special education. Stay tuned for further developments.
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